EllisDon Corporation v. Ontario Sheet Metal Workers' and Roofers' Conference et al. Ontario Sheet Metal Workers' and Roofers' Conference et al. v. EllisDon Corporation et al.

[Indexed as: EllisDon Corp. v. Ontario Sheet Metal Workers' and Roofers' Conference]

Ontario Reports

Court of Appeal for Ontario,

MacFarland, LaForme and Lauwers JJ.A.

November 17, 2014

123 O.R. (3d) 253 | 2014 ONCA 801

Case Summary

Employment — Labour relations — Grievance arbitration — Evidence — Original copy of 1958 Sarnia Working Agreement ("SWA") lost and signatories dead — Copy of SWA found in old box of files in union office — Ontario Labour Relations Board finding that copy of SWA was admissible as business record under s. 35 of Evidence Act and under "ancient documents" exception to hearsay rule — Divisional Court finding that board erred in admitting document — Unions' appeal allowed — Board implicitly finding that document was authentic and reliable — Board having discretion to admit SWA under ss. 48(12)(f) and 111(2)(e) of Ontario Labour Relations Act even if it was not business record or ancient document — Evidence Act, R.S.O. 1990, c. E.23, s. 35 — Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48(12)(f), 111(2)(e).

Employment — Labour relations — Grievance arbitration — Remedies — Ontario Labour Relations Board finding that 1958 Sarnia Working Agreement ("SWA") had created province-wide bargaining rights but that unions had agreed in 2000 not to rely on their bargaining rights under SWA — Board imposing remedy that estopped unions from enforcing SWA for two years to give employer time to seek legislative changes restricting geographic reach of SWA that it might have pursued and obtained had unions' 2000 representations not been made — Divisional Court erring in setting aside remedy and imposing permanent estoppel on basis that more sympathetic political climate of 2000 could not be recreated — Divisional Court failing to show due deference in [page254] finding that remedy of two-year estoppel was unreasonable and in substituting its own remedy.

The unions filed grievances under s. 133 of the Ontario Labour Relations Act, 1995 ("OLRA") alleging that the employer had violated their province-wide bargaining rights stemming from the 1958 Sarnia Working Agreement (the "SWA"). The original copy of the SWA could not be found, and its signatories had died. A photocopy of the SWA was found in an old box of files in a union office. The Ontario Labour Relations Board found that the SWA was admissible as a business record under s. 35 of the Evidence Act and that it was also admissible under the "ancient documents" exception to the hearsay rule. After admitting the SWA into evidence, the board found that it gave rise to bargaining rights on a province-wide basis and that the employer was bound by it. However, the board also found that in 2000, the unions agreed not to rely on their bargaining rights under the SWA and that the employer had altered its lobbying position as a result. The board imposed a remedy that estopped the unions from enforcing the SWA for two years. The board concluded this would be a sufficient period of time for the employer again to seek the legislative change to restrict the geographic reach of the SWA that it might have pursued and obtained in 2000 had the impugned representation not been made. The Divisional Court allowed the employer's application for judicial review, found that the SWA was not admissible and varied the remedy granted by the board, substituting a permanent estoppel. The unions appealed.

Held, the appeal should be allowed.

The Divisional Court erred in substituting its own decision on the admissibility of the SWA for that of the board. Even if the board's analysis of the business records and ancient documents exceptions were technically incorrect, the SWA was admissible under the board's discretionary power to admit evidence under ss. 48(12)(f) and 111(2)(e) of the OLRA. A reviewing court is obliged to discern a tribunal's implicit reasons, having regard to the context and the evidentiary record, where the express reasons fall short. The entire thrust of the board's analysis of the SWA as a business record and an ancient document was aimed at determining its authenticity and reliability. Moreover, the tests considered by the board for admitting the SWA as a business record or an ancient document were more rigorous than any test under s. 48 or s. 111 of the OLRA. Given that the board determined that the SWA was admissible on the more exacting legal standards, it was reasonable to infer that it would have invoked its discretionary authority to admit the SWA into evidence had it occurred to the board as being necessary in light of its substantive admissibility decision.

The remedy granted by the board was to be accorded a high degree of deference. Moreover, a reviewing court is only justified in substituting its remedy for the one granted by the tribunal in exceptional circumstances. The Divisional Court erred in failing to show due deference in finding the board's remedy of a two-year estoppel to be unreasonable and in substituting a permanent estoppel.

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 38 Admin. L.R. (5th) 255, 97 C.C.E.L. (3d) 199, 208 A.C.W.S. (3d) 435, apld [page255]

Other cases referred to

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Ellis-Don Ltd., [1992] OLRB Rep. February 147; Giguère v. Chambre des notaires du Québec, [2004] 1 S.C.R. 3, [2004] S.C.J. No. 5, 2004 SCC 1, 235 D.L.R. (4th) 422, J.E. 2004-328, REJB 2004-53100, 128 A.C.W.S. (3d) 395; Harbridge & Cross Ltd., [1988] OLRB Rep. April 391; International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460, 225 O.A.C. 341, [2008] CLLC Â220-007, 71 Admin. L.R. (4th) 101, 158 A.C.W.S. (3d) 860 (Div. Ct.); 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 Â220-050, 106 A.C.W.S. (3d) 463; Lemus v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 439, 2014 FCA 114, 372 D.L.R. (4th) 567, 461 N.R. 310, 27 Imm. L.R. (4th) 28, 239 A.C.W.S. (3d) 990; Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616, [2011] S.C.J. No. 59, 2011 SCC 59, 275 Man. R. (2d) 16, 423 N.R. 95, 2011EXP-3790, 2011EXPT-2180, J.E. 2011-2079, D.T.E. 2011T-803, [2012] CLLC Â220-004, 340 D.L.R. (4th) 1, 29 Admin. L.R. (5th) 1, 212 L.A.C. (4th) 93, [2012] 2 W.W.R. 619, 96 C.C.E.L. (3d) 1, 208 A.C.W.S. (3d) 583; MJ Guthrie Construction Ltd., [1984] OLRB Rep. January 50; Noranda Metal Industries Ltd. (Re) (1983), 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529, [1983] O.J. No. 3280, 1 O.A.C. 187, 84 CLLC Â14,024 at 12093, 23 A.C.W.S. (2d) 136 (C.A.); Ontario (Premier), [2001] O.L.R.D. No. 3040, 71 C.L.R.B.R. (2d) 161, [2001] OLRB Rep. May/June 767; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171

Statutes referred to

Evidence Act, R.S.O. 1990, c. E.23, s. 35

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48 [as am.], (12)(f), 111 [as am.], (2)(e), 133 [as am.], 151 [as am.], (2), 158 [as am.]

Authorities referred to

Adams, George W., Canadian Labour Law, looseleaf, 2nd ed. (Aurora: Canada Law Book, 1993)

Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry in Ontario and D.E. Franks, Report of the Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry in Ontario (Toronto: Ontario Ministry of Labour, 1976)

Sack, Jeffrey, and C. Michael Mitchell, Ontario Labour Relations Board: Law and Practice, looseleaf, 2nd ed. (Toronto: Butterworths, 1985)

APPEAL from the judgment of the Divisional Court (Molloy, Lederer and Hourigan JJ.) (2013), 117 O.R. (3d) 16, [2013] O.J. No. 4375, 2013 ONSC 5808 (Div. Ct.) allowing an application for judicial review of decisions of Vice-Chair McKee of the Ontario Labour Relations Board, [2012] O.L.R.D. No. 480, [2012] OLRB Rep. January/February 131 and [2012] O.L.R.D. No. 1491. [page256]

Ronald Lebi and Stephen Wahl, for appellants Ontario Sheet Metal Workers' and Roofers' Conference and International Brotherhood of Electrical Workers, Local 586.

Alan J. Lenczner, Q.C., and Mark D. Contini, for respondent EllisDon Corporation.

Leonard Marvy, for respondent Ontario Labour Relations Board.

The judgment of the court was delivered by

[1] LAUWERS J.A.: — This appeal, brought by the appellant unions, concerns the degree of deference owed by the court to a decision of the Ontario Labour Relations Board (the "board") under the principles expressed by the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9.

[2] There are two issues under appeal. The first is whether the majority of the Divisional Court erred in concluding that the 1958 Sarnia Working Agreement (the "SWA") was inadmissible as evidence in a board hearing. The SWA was a working agreement signed in Sarnia by representatives of EllisDon and the Building and Construction Trades Council of Sarnia and Lambton County (the "Sarnia Building Trades Council") in 1958. I conclude that the Divisional Court erred in substituting its own decision on the admissibility of the SWA for that of the board.

[3] The second issue is whether the Divisional Court erred in varying the remedy granted by the board. Again, I conclude that the court erred in so doing.

[4] Consequently, for the reasons set out below, I would allow the appeal and restore the decision of the board. I begin by setting out the context, and then turn to the analysis.

The Context

(1) What is at issue?

[5] The SWA contains a provision obliging EllisDon to engage only sheet metal and electrical contractors and subcontractors whose employees are members of the appellant unions. If the SWA has force as a province-wide agreement binding EllisDon under s. 151(2) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "OLRA"), its competitors will be free to engage contractors and subcontractors who are not unionized, but EllisDon will not. It will be the only general contractor in the province in this position. As a result, EllisDon claims it would be effectively excluded "from bidding fairly and competitively for contracts outside of the Greater Toronto Area". [page257]

[6] I begin with a historical discussion to explain the significance of the SWA.

(2) Working agreements and the Ontario Labour Relations Act

[7] The construction industry has long presented unique challenges for labour relations. The transitory nature of the industry, which involves employees moving between multiple short-term projects in a variety of locations, renders the traditional labour relations regime established in the manufacturing context difficult to apply, and often ineffective (Jeffrey Sack and C. Michael Mitchell, Ontario Labour Relations Board: Law and Practice, looseleaf, 2nd ed. (Toronto: Butterworths, 1985), at para. 10.2). Historically, a particular concern was the fragmentation of collective bargaining by trade and geographic area. This caused considerable tension between management and labour, since it facilitated frequent work stoppages and made the timing of project completion unpredictable (Sack and Mitchell, at p. 10.95; George Adams, Canadian Labour Law, looseleaf, 2nd ed. (Aurora, Ont.: Canada Law Book, 1993), at p. 15-1).

[8] In an effort to remedy these problems, in 1977 the Ontario legislature adopted some of the recommendations of the Ministry of Labour's Report of the Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry in Ontario (Toronto: Ontario Ministry of Labour, 1976) by amending the former Labour Relations Act to establish mandatory province-wide bargaining by trade for the industrial, commercial and institutional ("ICI") sector of the construction industry (Sack and Mitchell, at para. 10.3). These provisions are reflected in the current OLRA, starting at s. 151. The result was a consolidation of bargaining rights, with bargaining conducted by ministerially designated employer and employee bargaining agencies for each trade. These agencies are responsible for executing a single collective agreement applicable to the relevant trade province-wide.

[9] However, the 1977 amendments did not expand the scope of existing bargaining rights. Although the bargaining process in the ICI sector was now to be conducted on a province-wide basis, the collective agreement that emerged from this bargaining process applied only in areas where a union had established local bargaining rights through certification or voluntary recognition. The fragmentation and associated problems the new legislative scheme sought to address were not entirely eliminated (Adams, at p. 15-49; Ontario (Premier), [2001] O.L.R.D. No. 3040, [2001] OLRB Rep. May/June 767, at paras. 33-37). [page258]

[10] To address these continuing problems, the legislature enacted further amendments in 1979 and 1980. The most significant amendment for the purpose of this appeal is reflected in s. 151(2) of the current version of the OLRA, which provides:

151(2) Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry, referred to in the definition of "sector" in section 126, except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

[11] The initial version of s. 151(2) deemed, as the section continues to do, that if a union local operating in the ICI sector had bargaining rights in any geographic area, those rights were expanded to all other locals affiliated with that union across the province. Employers were required to recognize all such provincial affiliates and adhere to the terms of the applicable collective agreement (Sack and Mitchell, at para. 10.118). As a result, both the bargaining rights and the bargaining process in the ICI sector became truly province-wide.

[12] These legislated changes are relevant to this appeal due to their potential impact on working agreements, such as the SWA. A number of similar working agreements were concluded in the 1960s and 1970s between contractors and building trade councils representing collections of local unions in various parts of the province. After the statutory expansion of bargaining rights under OLRA s. 151(2), the question arose as to whether these working agreements were voluntary recognition agreements giving rise to bargaining rights for the unions affiliated with the signatory councils. In a series of decisions, the board determined that working agreements from the Toronto area did indeed give rise to bargaining rights, and that s. 151(2) expanded these rights province-wide (see MJ Guthrie Construction Ltd., [1984] OLRB Rep. January 50; Harbridge & Cross Ltd., [1988] OLRB Rep. April 391; Ellis-Don Ltd., [1992] OLRB Rep. February 147). The bargaining rights reflected in those working agreements applied to all Ontario locals of the unions affiliated with the signatory council, and affects EllisDon, which operates in the ICI sector.

[13] I now turn to the background and contents of the SWA. [page259]

(3) The background of the SWA

[14] The source of the dispute between the parties is the SWA. The original version of the SWA has been lost, and its signatories are dead. The document came to the attention of the appellant unions when a copy was found in the offices of a union associated with the Sarnia Building Trades Council. As the board stated, the unions "quite literally found a document, or at least a photocopy of the document, in an old box of files" (OLRB decision dated February 13, 2012, at para. 32). None of the parties presented evidence regarding negotiations leading up to the SWA or its execution. The document appears to have been forgotten for a number of years.

[15] The general purpose of the SWA, as set out in the document itself, was the establishment of [at para. 21] "mutually satisfactory relations between [EllisDon] and the affiliated Local Unions to this Council". The SWA also provides that EllisDon "recognizes each affiliated Union as the collective bargaining agency for their respective crafts". As the board noted, the language of the SWA is virtually identical to the wording of the Toronto Working Agreement (the "TWA", a similar document to the SWA), and is "in the abstract . . . precisely the type of document that the Board has found to be a voluntary recognition agreement that creates bargaining rights for a trade union with respect to the employees of an employer" (OLRB decision dated February 13, 2012, at paras. 22-23).

(4) The dispute before the board

[16] In June 2005 and December 2008, the Ontario Sheet Metal Workers' and Roofers' Conference (the "conference") and the International Brotherhood of Electrical Workers, Local 586 (the "IBEW") referred separate grievances against EllisDon to the board under s. 133 of the OLRA. They grieved EllisDon's engagement of subcontractors who employed non-unionized workers on construction projects in Hamilton (in the case of the conference) and in Ottawa (in the case of the IBEW). The unions claimed that this violated their province-wide bargaining rights under the SWA, which gets its geographic reach from s. 151(2) of the OLRA.

[17] EllisDon disputed the authenticity and admissibility of the SWA. Alternatively, EllisDon claimed that even if the SWA was authentic, admissible and gave rise to bargaining rights, the appellant unions made representations in 2000 that they would not enforce their bargaining rights under the SWA and accordingly should be estopped from relying on its provisions. [page260]

[18] In its decision dated February 13, 2012, the board found that the SWA was admissible and that it created bargaining rights which EllisDon had breached.

[19] The board concluded the SWA was admissible as a "business record" under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. The board listed the required elements and concluded they were all satisfied in the circumstances: the document's signatories were identified and thus proven, it was part of the regular business of the Sarnia Building Trades Council to enter into this sort of agreement, and the copy of the document was found in a location where one would expect to find it.

[20] The board also concluded the SWA was admissible as an "ancient document". It was at least 30 years old, was produced from proper custody, and there were no suspicious circumstances surrounding its creation or storage. As a result, the elements of this test were established as well. The fact that the original document could not be located was insignificant since the circumstantial evidence provided sufficient proof that the copy was accurate.

[21] After admitting the SWA into evidence, the board turned to consider whether it gave rise to bargaining rights on a province-wide basis. It concluded the SWA was a voluntary recognition agreement within the meaning of s. 158 of the OLRA and that it reflected an intention to establish bargaining rights. At the time of its execution, these bargaining rights applied only between EllisDon and the Sarnia locals of the conference and the IBEW. As a result of statutory changes to the OLRA, the rights reflected in the SWA were deemed to apply to all locals affiliated with the signatory unions within Ontario, and EllisDon was accordingly bound by the agreement throughout the entire province.

[22] However, the board also found that in 2000, the unions agreed not to rely on their bargaining rights under the SWA. In the late 1990s and early 2000s, construction contractors and building trades unions were engaged in ongoing discussions regarding potential changes to the OLRA. EllisDon had been leading a group of general contractors who were lobbying the provincial government for legislative changes to limit the reach of provincial working agreements.

[23] The board found that it was in the course of these negotiations that a representative of the unions had assured a representative from EllisDon that the unions would not seek to enforce the SWA outside of the Sarnia area. The board found on the evidence before it that the union representative had said words to the effect that "while they would give nothing in writing, the [page261] Building Trades would not use the Sarnia Working Agreement to recreate the situation that the Toronto Working Agreement produced, and thus 'torpedo' the understanding that they had. Whatever the precise words used, they had the desired effect of deflecting Ellis Don's concern about the Sarnia Working Agreement and not widening the discussions with the government" (para. 100).

[24] Relying on this representation by the unions, EllisDon altered its lobbying position. As a result, the board imposed a remedy that estopped the unions from enforcing the SWA for two years. The board concluded that this would be a sufficient period of time for EllisDon to again seek the legislative change to restrict the geographic reach of the SWA that it might have pursued and obtained in 2000 had the impugned representation not been made.

[25] The unions filed fresh evidence on appeal about the interplay between the draft bill that would have allowed for the making of a regulation to limit bargaining rights created by the SWA and these proceedings. It established that the provincial government had a bill ready for third reading that made the legislative changes sought by EllisDon. The bill was withdrawn by the government in 2013 as a direct result of the Divisional Court's decision below. This fresh evidence meets the test for admissibility set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, at p. 775 S.C.R.: it could not have been adduced before the board, it is relevant and credible, and it could reasonably have affected the board's decision.

(5) The decision of the Divisional Court

[26] The majority of the Divisional Court found that the board erred by admitting the SWA into evidence as a business record under s. 35 of the Evidence Act, and under the "ancient documents" exception to the hearsay rule.

[27] With respect to the Evidence Act, the majority of the Divisional Court found that the board had impermissibly stretched the legal meaning of "business record". The majority found that the SWA was not an original document, it was not found in a place where one would expect to find it, there was no basis for saying the copy filed with the board was made "in the ordinary course of business", the integrity of the document was in question, and there was no institutional memory of surrounding events that might have provided evidence of reliability. Further, the majority found that the board had not considered the reliability of this document before admitting it into evidence, which was an error of law. The majority concluded that the board's [page262] reasoning with respect to the ancient documents exception suffered from similar problems.

[28] The majority refused to consider whether the SWA was admissible under ss. 48(12)(f) and 111(2)(e) of the OLRA, set out below, which allow the board to admit evidence that the board "in its discretion considers proper, whether admissible in a court of law or not". The majority would have remitted the issue of admissibility to the board for reconsideration, but did not do so for reasons discussed below. Hourigan J. disagreed with the majority on the issue of admissibility. He concluded that every decision by the board to admit evidence is an exercise of its statutory discretion, whether or not the board's reasons referenced the applicable provision. In his view, the board's admission of the SWA into evidence was reasonable and was entitled to deference.

[29] As for the remedy of estoppel, the Divisional Court found that the board applied the correct legal test and reasonably concluded that the requisite elements were established. However, the Divisional Court disagreed with the board's determination of the appropriate duration of the estoppel. It set aside the board's remedy and imposed a permanent estoppel, on the basis that the political environment of 2000, which was favourable to EllisDon's interests regarding the SWA, could not be recreated in 2013. In other words, EllisDon could not be restored to its previous position and the two-year estoppel imposed by the board would be a useless remedy. Since the Divisional Court imposed a permanent estoppel, it found that there was no need to remit the issue of the admissibility of the SWA to the board.

Analysis

Issue 1: Whether the Divisional Court ruled correctly that the SWA was inadmissible in evidence in a board hearing

[30] The unions argue that even if the board's analysis of the business records and ancient documents exceptions was technically incorrect, the SWA was admissible under the board's discretionary power under ss. 48(12)(f) and 111(2) (e) of the OLRA.

[31] For the reasons that follow, I agree.

(1) The statutory provisions

[32] The OLRA contains two provisions regarding the discretion of arbitrators and the board to admit evidence. The relevant sections provide:

48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power, [page263]

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not.

111(1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not.

[33] As Hourigan J. observed, at para. 130 of his reasons [(2013), 2013 ONSC 5808 (Div. Ct.), 117 O.R. (3d) 16 (Div. Ct.)], it is a long-standing principle that "these provisions mean exactly what they say. Boards and arbitrators are not bound by the rules of evidence and thus have a broad discretion regarding the admissibility of evidence." See Noranda Metal Industries Ltd. (Re) (1983), 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529, [1983] O.J. No. 3280 (C.A.), at para. 19.

(2) The applicable principles of administrative law

[34] This court must consider and give effect to the principles expressed by the Supreme Court's decisions in Dunsmuir and in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62. At para. 12 of Newfoundland Nurses, Abella J. made the following comments:

It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision". In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

"Reasonable" means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.

(David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

[Emphasis added by Abella J.] [page264]

[35] The majority and the minority of the Divisional Court parted company on the proper application of Newfoundland Nurses and Professor Dyzenhaus' approach to the board decision to admit the SWA into evidence.

(3) The board's reasons

[36] The board reviewed the evidence of the creation and the history of the SWA in a careful and detailed manner and concluded that it was admissible both as a business record under s. 35 of the Evidence Act and under the "ancient document" exception to the hearsay rule. A summary of its observations is found at para. 19 [[2012] O.L.R.D. No. 480]:

What appears to be a "trued-up" copy is identical in wording to the original document between the Sarnia Building Trades Council and Finley-McLaughlan. That original document was found in the same storage area as the photocopy of the Working Agreement executed by R.T. Sheppard on behalf of Ellis Don. Indeed it was filed with the Board at the same time in 1958. In 1958 this was the only way of creating a "true copy" since photocopies did not exist and Gestetner copiers were rare and impractical. Finally, when Ellis Don admitted in 1986 that the Sarnia Working Agreement had been executed by R. T. Sheppard, it must have concluded that there was a document in existence that could be called the Working Agreement between Ellis Don and the Building and Construction Trades Council of Sarnia and Lambton County dated October 24, 1958. The document introduced in these proceedings was what the Unions had delivered to Ellis Don at that time, and Ellis Don has not suggested that it had any other document in contemplation at the time it made the admission.

(4) EllisDon's challenge

[37] EllisDon challenges the board's finding and urges this court to adopt the reasoning of the Divisional Court majority. EllisDon argues that Professor Dyzenhaus' approach of supplementing the tribunal's reasons cannot be invoked in this case to justify the board's decision since those reasons contain no reference to the discretionary power on which the unions now rely. EllisDon relies on the majority's comments, at para. 57, to the effect that, in order for the court to supplement a tribunal's reasons, those reasons must "articulate in some way the basis on which [the board] considered the document to be admissible".

[38] EllisDon draws on the majority's distinction between "a complete absence of reasons (which may be a procedural fairness issue resulting in the decision being set aside) and reasons which are said to be insufficient". As the majority added, "Where there are some reasons, the issue is not procedural fairness, but reasonableness, and in particular whether the decision can be said to be justifiable, intelligible and transparent within the meaning of those terms in Dunsmuir" (para. 54) [emphasis in original]. [page265] EllisDon submits that the board's reasons are, on this standard, inadequate.

[39] EllisDon argues that the board's failure to refer to its discretionary power to admit evidence means that this court cannot know whether it would have admitted the SWA on that basis, had the board not admitted it as a business record or as an ancient document. EllisDon urges this court to adopt the conclusion reached by the majority of the Divisional Court that "since the reasons given by the Board were not supportable, the document was therefore inadmissible" (para. 59).

(5) Discussion

[40] The Supreme Court has recognized that the unique context of labour relations requires that arbitrators and labour boards receive a high degree of deference on judicial review (Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565, [2001] S.C.J. No. 47, 2001 SCC 47, at para. 47; Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616, [2011] S.C.J. No. 59, 2011 SCC 59, at para. 51). The Divisional Court's decision must be assessed in light of these principles. Given the OLRB's established and recognized expertise in the "complex and sensitive field" of labour law, the applicable standard of review is reasonableness (International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460 (Div. Ct.), at para. 47).

[41] I make three observations about the line of reasoning adopted by the majority and urged on us by EllisDon. First, the adequacy of reasons is no longer a stand-alone basis for judicial review of an expert tribunal (Newfoundland Nurses, at para. 14).

[42] Second, although Newfoundland Nurses contemplates that a reviewing court could supplement a tribunal's reasons, a court should not substitute its own decision for that of an administrative tribunal "in a way that casts aside an unreasonable chain of analysis in favour of the court's own rationale for the result", as Rothstein J. noted in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, at para. 54. See, also, Lemus v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 439, 2014 FCA 114, 372 D.L.R. (4th) 567, at paras. 29-33. But I find nothing unreasonable in the board's chain of reasoning about the admissibility of the SWA.

[43] Third, and relatedly, where a tribunal's reasons are sparse, a reviewing court must be leery about probing the evidentiary [page266] record in order to save the decision. See Lemus, at paras. 29-31 and 35. But this case is not an instance in which the tribunal's reasons are sparse and its logic hidden; the exercise here is much more conventional. The board's reasons fall well within the description in Newfoundland Nurses since they allow a reviewing court "to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (para. 16).

[44] This is consistent with the approach taken by Hourigan J. in the Divisional Court decision. I agree with his observation that "read purposively, the Vice-Chair's analysis . . . is really nothing more than a determination that the reliability and authenticity of the documents had been proven to his satisfaction" (para. 136). I also agree that such a purposive analysis of the board's reasons "does not cross the line to a re-writing" of the decision. Consideration of the board's reasons as a whole fully supports Hourigan J.'s conclusion [at para. 137]:

In these circumstances there were sufficient guarantees of the authenticity and reliability of the document to warrant its admission. The decision was therefore reasonable. Moreover, even though the basis for admission were not correctly articulated, given the Vice- Chair's statutory power to admit the document into evidence regardless of whether it would be admissible in court, I find that the admission of the document does not constitute an error of law.

[45] Hourigan J. pointed out, at paras. 133-34, that the evidentiary context includes a 1987 exchange of letters between the respective counsel for EllisDon and the Sarnia Building Trades Council in which EllisDon agreed to the filing of the SWA in an arbitration without formal proof. Moreover, it would be inconsistent to find the SWA to be inadmissible in a hearing in which EllisDon was arguing that it had reached a binding arrangement that the unions would not rely on the SWA.

[46] In my view, the majority of the Divisional Court took too formalistic a view of the board's decision on the admissibility of the SWA. A reviewing court is obliged to discern the tribunal's implicit reasons, having regard to the context and the evidentiary record, where the express reasons fall short. As Hourigan J. explained, the entire thrust of the board's analysis of the SWA as a business record and as an ancient document was aimed at determining its authenticity and reliability. It was appropriate to invoke the board's statutory discretion under s. 48 and 111 of the OLRA in concluding the board was justified in admitting the SWA. Doing so was entirely consistent with the approach taken by the Supreme Court in both Dunsmuir and Newfoundland Nurses. [page267]

[47] I also observe that as a matter of logic, the tests considered by the board for admitting the SWA as a business record or as an ancient document were more rigorous than any test under s. 48 and 111 of the OLRA. While the business records and ancient documents rules impose a set of requirements that must be satisfied in order for a document to be admitted in a court of law, the relevant OLRA provisions allow an arbitrator or the board to use its discretion to moderate any strict legal requirements. One could easily infer that the board was exercising this moderated authority when it noted, at para.15, that "Some of this argument [by EllisDon] is an excessively exacting application of the standards set by section 35 [of the Evidence Act]." Given that the board determined the SWA was admissible on the more exacting legal standards, it is reasonable for this court to infer that it would have invoked its discretionary authority to admit the SWA into evidence, had it occurred to the board as being necessary in light of its substantive admissibility decision.

[48] I conclude that the SWA was properly admitted into evidence by the board.

Issue 2: Whether the Divisional Court was correct in varying the remedy granted by the board

[49] The second issue contains two sub-issues. The first, raised by the unions, is whether the board reasonably found that an estoppel was warranted. The second is the appropriate duration of the estoppel.

(a) Was the estoppel warranted?

[50] I begin by setting the context for the estoppel argument. In the late 1990s, EllisDon led the successful lobbying effort by a number of general contractors to convince the provincial government to limit the geographic scope of the Toronto Working Agreement to the Greater Toronto Area. The TWA had the same provision as the SWA by which general contractors agreed to engage only contractors and subcontractors whose employees were members of the union signatories, and, by operation of law, the TWA had also been extended to the entire province by the initial version of OLRA s. 151(2). However, unlike the SWA, which bound only EllisDon, the TWA applied to a number of other general contractors. The general contractors and the unions negotiated to reach a compromise that they put to the provincial government regarding the TWA. The result was a time-limited amendment to the OLRA and a regulation (explained by the board, at para. 114) that limited the geographic reach of the [page268] TWA to the GTA. This regulation did not address or have any impact on the SWA.

[51] Since EllisDon was the only general contractor that had signed the SWA, during the provincial negotiations it conducted sidebar discussions with the unions about the SWA. These discussions gave rise to the representation at issue in this appeal. The board set out the facts related to the estoppel in great detail, at paras. 69-111, and found that a representative of the building trades unions told an EllisDon representative that, although he could not publicly promise to restrict the application of the SWA to the Sarnia area, the unions would not actively promote or rely on the agreement.

[52] Relying on this representation by the unions, EllisDon abandoned its efforts to obtain a legislative restriction on the geographic scope of the SWA. The board concluded that this change in EllisDon's lobbying position was prejudicial, since the company lost an opportunity to obtain legislative change.

[53] The board's conclusion, which is well supported by the evidence that it recited, was as follows [at para. 111]:

I find that the representation was made, by the Unions that might then have claimed and now do claim bargaining rights through the Sarnia Working Agreement to Ellis Don, the employer party to that agreement. They represented that they would not enforce bargaining rights arising out of the Sarnia Working Agreement beyond what was found in the 1987 Minutes of Settlement such that it would "torpedo" the effect of a modification to the Toronto Working Agreement. In reliance on that representation Ellis Don changed its bargaining and lobbying position with respect to legislative change. It did so to its detriment, as it then abandoned the only avenues that might have led to negating the effect of the Sarnia Working Agreement.

[54] There is no merit to the unions' submissions that the board made palpable and overriding errors in its assessment of the evidence about the elements of estoppel. I agree with the Divisional Court that the board's conclusions on the elements of estoppel are "unassailable" (para. 104), as is the Divisional Court's conclusion that [at para. 103]:

[T]he Vice-Chair applied the general principles of estoppel, but he also considered how the doctrine fit within a labour law context and the political environment at the time. These are matters within his specialized area of expertise. Deference is required.

(b) What is the appropriate length of the estoppel?

[55] The real issue on this ground of appeal is about the appropriate duration of the estoppel. The unions argue it should be no longer than the two years imposed by the board, while EllisDon supports the permanent estoppel ordered by the Divisional Court. If the unions are successful and EllisDon fails to [page269] secure legislated relief, then after the estoppel expires the SWA would come into full force across Ontario against only EllisDon.

[56] The standard of judicial review of a board remedy is reasonableness. The remedy granted by the board is to be accorded a high degree of deference (Nor-Man, at para. 51). Further, the reviewing court is only justified in substituting its remedy for the one granted by the tribunal in exceptional circumstances (Giguère v. Chambre des notaires du Québec, [2004] 1 S.C.R. 3, [2004] S.C.J. No. 5, 2004 SCC 1, at paras. 66-68). In most cases, the appropriate course of action for an unreasonable remedy is to remit the matter to the tribunal.

[57] In my view, the Divisional Court erred in failing to show due deference in finding the board's remedy of a two-year estoppel to be unreasonable and substituting a permanent estoppel.

[58] The board discussed the duration of the estoppel from paras. 112 to 120, and again in its follow-up decision dated May 1, 2012. The board found that what EllisDon had lost as the result of the union representation was "the opportunity to seek legislative change" (para. 114). More specifically, EllisDon lost the opportunity to seek the "expansion of the scope of the Regulation" that limited the reach of the TWA to include the SWA.

[59] The board considered the range of possible estoppel durations, from a permanent estoppel (at para. 112) to the shorter durations typically applied in labour cases -- such as to the end of the relevant construction contract or collective agreement (at para. 113). It found that permanent estoppel was not appropriate because it was not clear that EllisDon would have been successful in 1999-2000 in negotiating geographic limits for the SWA.

[60] The board was uncomfortable in assessing the political situation and hypothetical outcomes. Nonetheless, it recognized that the government of the day in 1999-2000 -- when most of these negotiations took place -- might well have been more sympathetic to EllisDon than the current government and that there is "less political pressure behind the issue now" (para. 117). Having outlined its considerations in detail, the board concluded [at para. 119]:

The overall lobbying took from April of 1997 (the first meeting with someone for the Ministry of Labour) to April 2001 (when the regulation was promulgated). However, the significant lobbying took place in the two years of 1999 to 2000, and the manner in which the change was made is now identified. Hence the same two year time period is appropriate here. [page270]

[61] In the follow-up decision [[2012] O.L.R.D. No. 1491], the board varied the terms of the estoppel to take account of EllisDon's business reality. It provided that the estoppel would "apply to any project commenced by Ellis Don or in respect of which it has made a firm and irrevocable bid to a project sponsor, owner, or other source of work on or before February 13, 2014" (para. 22). The board was alive to the impact of the decision on EllisDon, and that it would be the only general contractor bound to hire unionized contractors across Ontario (para. 119 [[2012] O.L.R.D. No. 480]).

[62] It cannot be denied that the board carefully considered all of the relevant factors and the full range of remedial options available. It set these options out clearly, and then made its final decision, as it was obliged to do under the legislative scheme. The obligatory qualities of justification, transparency and intelligibility within the decision-making process are plainly present in the board's reasons, and the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, consistent with the e desiderata in Dunsmuir, at para. 47.

[63] The Divisional Court's finding that the board's remedy was unreasonable is based on its political prognostication that EllisDon's efforts to achieve a legislative limitation on the SWA would not succeed in the present political climate. With respect, however, in our understanding of the doctrine of separation of powers, it is not the court's function to exercise judicial authority based on political prognostication. The problem in this case is statutory and legislative, as is any possible permanent solution. The board recognized that it had the mandate under the OLRA to reach a decision that would respect the provisions of the OLRA as well as the legislative process. It imposed a time-limited estoppel to allow that process to unfold, while saving EllisDon harmless temporarily. That remedy was not unreasonable and judicial deference is due.

Disposition

[64] For these reasons, I would allow the appeal and restore the decisions of the board, with costs of the appeal payable to the appellants in the amount of $10,000, all inclusive. By agreement of the parties, the costs award in the Divisional Court will stand, but will be reduced to $3,750, all inclusive.

Appeal allowed.

End of Document