COURT FILE NO.: 368/03

DATE: 20040311

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, kealey and swinton jj.

B E T W E E N:

GIROTTI ST. CATHARINES LTD.

Applicant

• and -

MILLWRIGHTS UNION LOCAL 1007

Respondent

G. Ungaro, for the Applicant

D.J. Wray for the Respondent Union

L. Marvy, for the Ontario Labour Relations Board

HEARD at Toronto: March 9, 2004

ENDORSEMENT

[1] Girotti St. Catharines Ltd. (Girotti) seeks judicial review and an order setting aside the March 14, 2003 decision of the Ontario Labour Relations Board (OLRB). By that order, the OLRB held that Girotti, by virtue of:

(1) an agreement, dated May 20, 1998, between Girotti and Millwrights Union, Local 1007 (Union), and

(2) an OLRB decision, dated May 22, 1998

was bound by the provincial collective agreement between the Association of Millwrighting Contractors of Ontario and the Millwright District Council of Ontario.

[2] Girotti seeks an order setting aside the March 14, 2003 decision of the OLRB and a declaration that the agreements between the parties are not collective agreements and that those agreements are null and void.

[3] On May 1, 1998, the Union filed a grievance against Girotti pursuant to the Millwrights’ Provincial Collective Agreement. The grievance was referred to arbitration before the OLRB pursuant to s. 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (LRA). Prior to the hearing, the parties entered into a Memorandum of Agreement, dated May 20, 1998, in which Girotti agreed to be bound by the collective agreements between the Association of Millwrighting Contractors of Ontario and the Millwright District Council of Ontario. The OLRB then issued a decision, dated May 22, 1998, accepting that Girotti was bound by the Millwrights’ Provincial Collective Agreement. Girotti did not seek judicial review of that decision.

[4] In December, 2002, the Union filed a further grievance against Girotti. When the matter came before a panel of the OLRB, Girotti indicated that it planned to argue that it was not bound by the collective agreement with the Union. Girotti acknowledged that it had executed the Memorandum of Agreement declaring itself bound by the collective agreements and that the person who signed the memorandum was authorized to do so. On March 14, 2003, the OLRB found that Girotti was bound by the provincial collective agreement between the Association of Millwrighting Contractors of Ontario and the Millwright District Council of Ontario.

[5] Girotti now seeks judicial review of the March 14, 2003 decision.

[6] In its decision of March 14, 2003, the tripartite panel of the OLRB said, in part:

The applicant [Union] and the responding party [Girotti] in May 1998, entered into a memorandum of agreement that resulted in the Board (differently constituted) making the following declaration:

The Board declares that Girotti St. Catharines Ltd. (Girotti Machine Works) is bound to the collective agreements as between (i) The Association of Millwrighting Contractors of Ontario and the Millwright District Council of Ontario effective as from September 18, 1995; and (ii) Girotti St. Catharines Ltd. (Girotti Machine Works) and the Millwright District Council of Ontario effective as from September 9, 1997.

Despite the ingenious argument of counsel for the responding party, we do not accept that the improprieties surrounding the signing of the agreements in September 1997 cannot be cured. Rather, it is our view when the responding party entered into the memorandum of agreement, signed by its president, and agreed to the Board issuing the declaration it did, the responding party ratified the earlier agreements and waived any rights it might have had to challenge the validity or propriety of those agreements.

The Board issued a declaration that, in our opinion, set out and confirmed the relationship between the parties. That declaration encompasses, on the parties’ agreement, an acknowledgement that the responding party is an employer in the construction industry because they agreed the responding party was bound by the Millwright Provincial Agreement applicable in the ICI sector of the construction industry.

Finally, the responding party submits that the applicant did not proceed through the collective agreement grievance procedure before referring the matter to the Board for determination. While that argument might, if the grievance did not relate to the construction industry, have some attraction to a board of arbitration established under a collective agreement not applicable to the construction industry, under section 133(1) of the Act, a construction industry grievance may be referred to the Board “despite the grievance and arbitration provisions in a collective agreement”.

The responding party is, by virtue of the Board’s May, 1998 declaration, bound by the provincial collective agreement between The Association of Millwrighting Contractors of Ontario and the Millwright District Council of Ontario and this grievance is properly before the Board for determination.

Standard of Review

[7] Determining the representation rights of trade unions for employees at a particular facility is fact based and is a determination that falls squarely within the specialized jurisdiction, experience and expertise of the OLRB, a tribunal protected by two (2) privative clauses: s. 114 and s. 116 of the LRA.

[8] On issues that are properly within the jurisdiction of the OLRB, the proper standard of review is “patently unreasonable”, which indicates that the court has to find that there was no rational basis for the OLRB’s decision before the court can justify interference with the decision: Attorney General of Canada v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 673 (S.C.C.).

[9] On the evidence and on the record before the OLRB, we cannot say that its impugned decision, dated March 14, 2003, was patently unreasonable.

[10] The application is dismissed. Prior to reserving judgment, counsel were asked for their submissions as to costs. Costs are fixed in the sum of $4,000.00, all inclusive, payable forthwith by Girotti to the Union. The OLRB did not ask for costs.

O’Driscoll J.

Kealey J.

Swinton J.

Released: March 2004