Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 et al.

[Indexed as: Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819]

90 O.R. (3d) 451

Court of Appeal for Ontario,

Doherty, Gillese and Epstein JJ.A.

April 11, 2008

Appeal -- Mootness -- Labour Relations Board holding that it lacked jurisdiction to extend statutory time limit set out in s. 128.1 of Labour Relations Act and to consider employer's late-filed response to certification application -- Board affirming certification order -- Divisional Court allowing employer's judicial review application and remitting matter to Board for reconsideration on basis that it had authority to consider late-filed material -- Union applying for leave to appeal -- Board reconsidering its decision before union's appeal was heard, considering employer's response and revoking certification -- Union's appeal being dismissed as moot -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 128.1. [page452]

Through inadvertence, the employer neglected to file its response to a certification application with the Labour Relations Board within the two-day statutory time limit. The Board made the requested certification order. The employer asked the Board for an extension of time in which to file its response and for a reconsideration. The Board held that it had no authority to extend a statutory time limit set out in s. 128.1 of the Labour Relations Act, 1995. Without considering the employer's response, it affirmed the certification order. The Divisional Court allowed the employer's application for judicial review, applying a standard of correctness to the Board's decision and holding that the Board erred in concluding that it had no jurisdiction to consider late-filed material. The matter was remitted to the Board for reconsideration. The union obtained leave to appeal to the Court of Appeal. Before the appeal was heard, the Board implemented the Divisional Court order, considered the employer's respo nse and rescinded the certification order.

Held, the appeal should be dismissed as moot.

After the Board's latest decision and the rescinding of the certification order, no live controversy remains. A decision on the merits of the appeal would have no practical effect. The court could not restore the Board's decision certifying the union for three reasons. First, that decision was no longer the operative order in this ongoing certification battle. Second, reinstatement of the certification order was no longer possible because the Board had revoked the certification. Third, the Board's decision revoking the certification order was not before the court. It would not be appropriate for the court to exercise its discretion and decide the appeal on its merits. The issues raised (i.e., whether the Divisional Court erred in applying a standard of review of correctness to the Board's decision, and whether the Divisional Court erred in holding that the Board's interpretation of s. 128.1(3) of the Labour Relations Act was incorrect) were important. However, they were not of public im portance in the way in which that phrase has been understood in this area. Moreover, the issues were not evasive of review.

This was not to be taken as affirming the Divisional Court's view that the appropriate standard of review of the Board's decision was correctness. The decisions of the Supreme Court of Canada over the course of many decades show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction. Appreciating the need for deference on matters within the Board's exclusive jurisdiction further militated against deciding the appeal on the merits. A decision on the issue of whether the Divisional Court erred in holding that the Board's interpretation of s. 128.1(3) of the Labour Relations Act, 1995 was incorrect would require the Court to analyze what appeared to be two competing lines of Board authority and perhaps to accept one and reject the other. It would be foolhardy for the Court pre-emptively to interpret complicated statutory provisions involving practices and procedures of which the court knew very little, before the Board had an opportunity to consider and, perhaps, reconcile those authorities.

APPEAL from a judgment of the Superior Court of Justice, Divisional Court (Cunningham A.C.J.S.C., Lane and R.J. Smith JJ.), 2007 8928 (ON SCDC), [2007] O.J. No. 1067, 280 D.L.R. (4th) 692 (Div. Ct.) allowing an application for the judicial review of a decision of the Ontario Labour Relations Board.

Cases referred to Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, J.E. 89-499, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 7 W.C.B. (2d) 61; Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566, [2000] O.J. No. 3372, 192 D.L.R. (4th) 177, 162 O.A.C. 356, 48 C.P.C. (4th) 15, 36 R.P.R. (3d) 58, 99 A.C.W.S. (3d) 206 (C.A.), apld Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 372 N.R. 1, consd [page453]

Other cases referred to Air Kool Ltd., [2005] O.L.R.D. No. 3390, 115 C.L.R.B.R. (2d) 261, [2005] OLRB Rep. July/August 525; Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, [1993] S.C.J. No. 35, 101 D.L.R. (4th) 673, 150 N.R. 161, J.E. 93-733, 11 Admin. L.R. (2d) 59, 93 CLLC 12124; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, [1979] S.C.J. No. 45, 97 D.L.R. (3d) 417, 26 N.R. 341, 25 N.B.R. (2d) 237, 79 CLLC 111; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; Easton's Group of Hotels Inc., [2006] O.L.R.D. No. 2940; Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R 565, [2001] S.C.J. No. 47, 2001 SCC 47, 201 D.L.R. (4th) 577, 74 C.L.R.B.R. (2d) 85, 272 N.R. 201, J.E. 2001-1436, 35 Admin. L.R. (3d) 149, [2001] CLLC Â22 0-050, 106 A.C.W.S. (3d) 463; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63; Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14, 133 D.L.R. (4th) 129, 193 N.R. 81, J.E. 96-545, [1996] N.W.T.R. 1, 36 Admin. L.R. (2d) 1, 96 CLLC Â210-011, 60 A.C.W.S. (3d) 1165; Toronto Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, [1997] S.C.J. No. 27, 144 D.L.R. (4th) 385, 208 N.R. 245, J.E. 97-570, 98 O.A.C. 241, 44 Admin. L.R. (2d) 1, 25 C.C.E.L. (2d) 153, 97 CLLC Â220-018

Statutes referred to Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 128.1 [as am.] Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25 [as am.]

Martin Sclisizzi and Marton Mitchnick, for respondant Maystar General Contractors Inc. Leonard Marvy, for respondant Ontario Labour Relations Board. A.M. Minsky, Q.C., and E.M. Mitchell, for appellant.

The judgment of the court was delivered by

GILLESE J.A.: --

Overview

[1] The union brought a certification application before the Ontario Labour Relations Board. The employer prepared a response in which it challenged the identity and numbers of persons in the proposed bargaining unit. It served the response on the union but, through inadvertence, neglected to file its [page454] response with the Board within the two-day statutory time limit. Consequently, based solely on the information provided by the union, the Board made the requested certification order.

[2] The employer asked the Board for an extension of time in which to file its response and for a reconsideration. The Board undertook a reconsideration. However, relying on a prior Board decision which held that the Board had no authority to extend a time limit set out in s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "LRA"), the Board did not consider the employer's response. It affirmed the certification order.

[3] The employer brought an application for judicial review which the Divisional Court granted. The Divisional Court applied a standard of correctness to the Board decision and held that the Board had erred in concluding that it had no jurisdiction to consider late-filed material. It remitted the matter to the Board for reconsideration in light of its reasons.

[4] The union obtained leave to appeal the Divisional Court order. Before the appeal was heard, the Board implemented the Divisional Court order, considered the employer's information and rescinded the certification order. For the reasons that follow, I would dismiss the appeal as moot.

Background

Board certification

[5] On June 13, 2006, the International Union of Painters and Allied Trades (the "Union") brought an application for certification pursuant to s. 128.1 of the LRA. The application to the Ontario Labour Relations Board (the "Board") was made in respect of all "glaziers and glazier apprentices" employed by Maystar General Contractors Inc. ("Maystar"). The application stated that, as of that date, there were two employees in the proposed province-wide bargaining unit working at a Maystar jobsite in Oshawa.

[6] On June 15, 2006, Maystar faxed its response to the Union. In its response, Maystar contended that the two glaziers were contractors and not employees for the purposes of the LRA. Alternatively, if the two workers were found to be employees, then Maystar contended that it had eight such employees on four different job sites on June 13, 2006. [^1] [page455]

[7] Through inadvertence, Maystar's response was not provided to the Board.

[8] Section 128.1(3) of the LRA stipulates that an employer is to provide its response to a certification application to the Board within two days after receiving notice of the application.

[9] On June 19, 2006, the Board certified the Union as the bargaining agent for a unit of glaziers. The Board decision noted that, although duly served with notice of the application, Maystar had filed no response.

[10] On reading the Board decision, Maystar discovered that the Board had not received its response. On June 26, 2006, it sought a reconsideration of the certification decision. In its request for reconsideration, Maystar explained that its response had been supplied to the Union within the two days required by s. 128.1(3) but "through administrative error", it had not been filed with the Board at the same time. Maystar asked that the time for filing material be extended.

[11] On September 6, 2006, the Board denied Maystar's request, confirmed its certification decision and granted the certificates to the Union (the "Board Decision"). [^2] In refusing to consider Maystar's response, the Board followed Air Kool Ltd., [2005] O.L.R.D. No. 3390, 115 C.L.R.B.R. (2d) 261 and held that it had no authority to consider the Maystar information because it had been filed outside the two-day limit in s. 128.1(3).

The Divisional Court decision

[12] Maystar brought an application for judicial review of the Board Decision.

[13] The Divisional Court held that a standard of correctness applied to the Board Decision. It concluded that the Board had incorrectly interpreted s. 128.1(3). It was of the view that the Board had the power to consider late-filed material. In an order dated March 20, 2007, the Divisional Court allowed the application, set aside the Board Decision and remitted the matter for reconsideration in accordance with its reasons (the "Order").

Events after the Divisional Court decision

[14] On March 26, 2007, pursuant to the Order, the Board began the process of reconsidering the certification application. After noting that it had the Union application and Maystar's response, it set a schedule for receiving further submissions. [page456]

[15] On April 4, 2007, the Union filed its notice of application for leave to appeal the Order to this court.

[16] On April 26, 2007, the Union asked the Board to adjourn the reconsideration proceedings until its leave application had been heard. Maystar opposed the adjournment, stating that if the Union wished to have a stay of the Order, it ought to bring a stay motion to this court. The Board declined to adjourn the reconsideration proceedings. No stay application was ever made to this court.

[17] On June 28, 2007, while the leave application was outstanding, the Board reconsidered the certification application. The Board determined that it should exercise its discretion and permit the late filing of Maystar's response. On the basis of the application filed by the Union and Maystar's response, the Board was not able to determine the percentage of employees in the bargaining unit who were members of the Union as of the date that the certification application had been filed. The Board ruled that the matter would be determined following a regional certification meeting. The Board revoked the certificates granted to the Union on September 6, 2006, and referred the matter for a regional certification meeting.

[18] On July 25, 2007, a labour relations officer held the regional certification meeting and prepared a report. The report included the names of ten employees -- the two originally named in the Union application and the eight named in Maystar's response. All ten were disputed. On the same date, the parties agreed to adjourn any further steps in the certification proceeding.

[19] For ease of reference, the matters described in paras. 14-18 will be referred to as the "Events".

[20] On July 26, 2007, this court granted leave to appeal. The court was unaware of the Events. [^3]

[21] On July 30, 2007, the Union filed its notice of appeal.

[22] The factums filed by the parties did not allude to the Events. However, additional materials filed before the oral hearing of the appeal alerted the court to what had transpired. That information caused the court to query whether the appeal was moot. The Union argued it was not and, if it were, that the court ought to exercise its discretion and decide the appeal on its merits. Maystar argued that the appeal was moot and ought not to be heard. After hearing argument on the issue of mootness, the court reserved on the matter until after it had heard the parties on the merits of the appeal. [page457]

The Issues

[23] As I have concluded that the court ought not to decide the appeal on the merits, these reasons need address only two issues. First, is the appeal moot? Second, if it is, ought the court to exercise its discretion and decide the appeal?

Analysis

[24] Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14 is the seminal case on the doctrine of mootness. In Borowski, at p. 353 S.C.R., Sopinka J. explains the doctrine in the following terms:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.

[25] This court revisited the doctrine of mootness more recently in Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566, [2000] O.J. No. 3372 (C.A.). In Tamil Co- operative, at para. 13, Doherty J.A., writing for the court, describes the approach the court is to take when deciding the question of mootness:

Courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems. Courts will, however, on occasion address the merits of an appeal even where the dispute giving rise to the appeal has dissolved. Where a question of mootness is raised, the court must first decide whether the appeal is moot. If the appeal is moot, the court must then decide whether it should nonetheless hear the merits of the appeal. The discretion to hear a moot appeal is intended to address those exceptional cases where the circumstances are such that the general rule against hearing appeals where there is no live controversy between the parties should not be followed . . .

[26] As a general rule, the court will not decide moot cases. [^4] [page458]

Is the appeal moot?

[27] In the first stage of analysis, the court must determine whether the appeal is moot. Making that determination in this case requires a consideration of whether, after the Events, a live controversy remains: see Borowski, at p. 354 S.C.R. If not, the appeal is moot.

[28] The controversy that drives this appeal is whether the Board can consider the information proffered by Maystar. The Board decision of June 28, 2007 makes it clear that not only has the Board determined that it can consider the information but that the Board has, in fact, considered it and acted on it. It was as a result of Maystar's response, in conjunction with the Union application, that the Board revoked the certificates it had granted to the Union. Thus, a decision of this court on the merits of the appeal would have no practical effect. Viewing the matter substantively, the controversy this court is asked to resolve on the appeal has been overtaken by the post- judicial review events, in particular, the subsequent orders of the Board.

[29] A more technical analysis also compels the conclusion that the appeal is moot. The Union asked the court to set aside the Divisional Court order and restore the Board's decision certifying the Union. However, this court cannot restore the Board Decision for three reasons. First, the Board Decision is no longer the operative order in this ongoing certification battle, as it has been supplanted by the later Board decisions. Second, reinstatement of the certification order is no longer possible because the Board revoked the certification by means of its June 28, 2007 decision. Third, the Board decision of June 28, 2007, is not before us. Therefore, it would be improper to effectively overturn that decision, which is what restoration of the Board Decision would accomplish.

[30] The Union also argues that were this court to set aside the Divisional Court order, the Union could go back to the Board and invite it to reconsider its decision of June 2007 in which it revoked the certification. The Union submits that armed with a favourable decision from this court, it would ask the Board to restore the certification order made in 2006. Given the material now before the Board and the post-judicial review events, it is not clear that setting aside the Divisional Court order would lead to such a reconsideration. The Events have clarified the nature of the dispute between the Union and Maystar such that the procedural issues that arise in respect of s. 128.1(3) may no longer govern the outcome. The Board now knows there is a real issue concerning the Union's right to certification. It is difficult to see [page459] the Board ignoring the real controversy and restoring an order which [had] been made in the absence of such knowledge.

[31] In summary, the appeal is moot because the relief sought by the Union is no longer available and because the Events have reshaped the dispute between the parties such that the issue this court is asked to decide is not determinative of that dispute.

Ought the court to exercise its discretion and decide the appeal?

[32] Having concluded that the appeal is moot, the second stage of analysis requires a determination as to whether, nonetheless, the court should decide the appeal on its merits. At this stage of the analysis, the onus rests on the appellant to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals: Tamil Co-operative, at para. 17.

[33] After stating that the court's discretion is not to be fettered by the rigid application of pre-determined criteria, Sopinka J. in Borowski identified three factors for the courts to consider when determining whether to exercise discretion to hear a moot case:

(1) the presence of an adversarial context,

(2) the concern for judicial economy, and

(3) the need for the court to be sensitive to its role as the adjudicative branch in our political framework. [^5]

In exercising its discretion, the court is to consider the extent to which each of the three factors is present, recognizing that the ultimate determination is not a mechanical process. [^6]

[34] I am satisfied that the first factor -- an appropriate adversarial context -- exists in this case. The litigants have continued to argue their respective positions vigourously.

[35] The second factor relates to a concern for conserving scarce judicial resources. In deciding whether an expenditure of judicial resources is warranted, the court is to consider the importance of the issues raised and whether the issues are "evasive of review": see Borowski, at p. 360 S.C.R.; New Brunswick, at para. 45 and Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, at para. 20.

[36] This appeal raises two issues. The first is whether the Divisional Court erred in applying a standard of review of [page460] correctness to the Board Decision. The second is whether the Divisional Court erred in holding that the Board's interpretation of s. 128.1(3) of the LRA was incorrect (the "Procedural Issue").

[37] There is no question but that both issues are important. However, the importance of the legal issues is not determinative of the matter. As Doherty J.A. explains in Tamil Co-operative, at para. 24:

The importance of a legal issue raised in a proceeding is a relevant consideration in determining whether a court should hear a moot appeal. It is not, however, determinative. There are an almost infinite number of important legal issues lurking in the myriad of rules and regulations governing the citizenry upon which those interested in the issue would appreciate the opinion of an appellate court. If the importance of a legal issue is enough to overcome concerns associated with hearing moot appeals, the doctrine has little value. It means no more than that the court should not waste its time and resources deciding unimportant legal issues in cases where there is no longer a live dispute between the parties. This would seem self-evident.

[38] Moreover, the issues are not of public importance in the way in which that phrase has been understood in this area. This factor requires a consideration of the public importance in resolving the issues raised on appeal, a consideration related to the social cost of continued uncertainty in the law. As discussed in Tamil Co-operative, at para. 26, the cases which meet this criterion have generally addressed questions of broad social and constitutional importance. While the matters in issue in this appeal are important, they do not raise questions of that sort.

[39] Further, neither issue raised on appeal is "evasive of review". Generally, a matter is evasive of review if it is unlikely that the court will encounter it again or if it tends to be moot by the time it reaches the reviewing court. One example of this type of matter is that given in New Brunswick, at para. 47: an interlocutory injunction prohibiting certain strike action. The certification provisions in question are relatively new, having only come into effect on June 13, 2005. It stands to reason that the Board will make many decisions that involve those provisions and that the procedures the Board follows in arriving at those decisions will be scrutinized through the judicial review process; hence, the Procedural Issue will be addressed. There is no question but that the issue of the standard of review to be applied to Board decisions in respect of those provisions will be revisited in those judicial review proceedings. Thus, I do not see the issues as evasive of review.

[40] The third factor to be considered in relation to mootness is the need for the court to be sensitive to its role as the adjudicative branch in our political framework. A court may decline to hear a moot case where it would require "departing from its traditional [page461] role as an adjudicator [or] intruding upon the legislative or executive sphere": Doucet-Boudreau, at para. 22. This concern does not arise in the present case.

[41] Accordingly, I would decline to exercise the court's discretion to decide the appeal on the merits.

[42] I conclude, however, with the following caution. Nothing in these reasons should be taken as affirming the Divisional Court's view that the appropriate standard of review of the Board Decision was correctness and that no deference was owed to the Board in its interpretation of the relevant certification provisions in the LRA. The decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction. See, for example, Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, [1979] S.C.J. No. 45, Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, [1993] S.C.J. No. 35 and Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14. [^7] Issues which arise in implementing the LRA provisions gov erning the certification process in the construction industry are such matters.

[43] In the nomenclature of old, Board decisions were not to be set aside unless they were patently unreasonable or clearly irrational. Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, has simplified the standard of review analysis with the result that there are now only two standards of review: correctness and reasonableness. However, both the result and the reasoning in Dunsmuir affirm a continuing stance of deference in the field of labour relations. In Dunsmuir, a standard of reasonableness was held to apply when reviewing the decision of an adjudicator made under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. The majority in Dunsmuir notes that an exhaustive analysis is not required in every case to determine the proper standard of review: if the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded a decision maker with regard to a particular category of question, the search fo r the appropriate standard is over. If not, then the usual factors are to be considered. Deference will "usually result" where a decision maker is interpreting its own [page462] statute, with which it will have particular familiarity. Deference is also warranted where the decision maker has particular expertise in the application of legal rules in a specific statutory context. The majority also noted that a question of law of central importance to the legal system as a whole and which is outside the specialized area of expertise of the decision maker will always attract a correctness standard. I do not see the Procedural Issue as raising a question of that nature.

[44] Appreciating the need for deference on matters within the Board's exclusive jurisdiction further militates against deciding the present appeal on the merits. A decision on the Procedural Issue would require the court to analyze what appear to be two competing lines of Board authority and to perhaps accept one and reject the other. [^8] If nothing else, it would be foolhardy for this court to pre-emptively interpret complicated statutory provisions involving practices and procedures of which the court knows very little, before the Board has an opportunity to consider and, perhaps, reconcile those authorities. To embark on a review of the merits would require this court to do precisely what the jurisprudence indicates is improper -- rather than defer to the Board, it would have this court dictate the process the Board is to follow when making decisions on certification, a matter within its exclusive jurisdiction.

Disposition

[45] I would dismiss the appeal as moot. If the parties are unable to agree on costs, they may make brief written submissions on the matter within 21 days of the date of release of these reasons.

Appeal dismissed as moot.

Notes

[^1]: The number of empoyees is significant because, among other things, pursuant to s. 128.1(7), the Board "shall dismiss the application if it is satisfied that fewer than 40 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed".

[^2]: The certificates were amended to correct an error that is irrelevant to the matters in issue on this appeal.

[^3]: Without ascribing fault to anyone, I wish to observe that the court should have been informed of the Events as soon as the parties were aware of them so that the information could have been considered when the leave application was decided.

[^4]: New Brunswick (Minister of Health and Community Services) v. G. (J)., 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at para. 41.

[^5]: At pp. 358-62 S.C.R. See also New Brunswick, supra, at para. 43.

[^6]: Borowski, at p. 363 S.C.R.

[^7]: The deferential stance ectends broadly to those in the labour field in general: see Toronto Board of Education c. O.S.S.T.F. District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, [1997] S.C.J. No. 27 and Ivanhoe Inc. v. UFCW Local 5000, 2001 SCC 47, [2001] 2 S.C.R. 565. [2001] S.C.J. No. 47.

[^8]: The question is whether the Board may consider an untimely response to a certification application brought under s. 128.1. The Air Kool line of cases holds that the LRA imposes a mandatory time limit and obligate the Board to make its determination of the basis of only the information provided in the application and any respose filed within the time lines dictated by the LRA. The Easton line of cases holds that the time limits are directory in certain circumstances and that late-filed materials may by considered: Easton's Group of Hotels Inc., [2006] O.L.R.D. No. 2940.