COURT FILE NO.: 05-DV-001103

DATE: 2005-12-06

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

PLATANA, McLEAN and HEENEY JJ.

B E T W E E N:

BA INTERNATIONAL INC.

Stephen Bird, for the Applicant

Applicant

• and -

ONTARIO (LABOUR RELATIONS BOARD), INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 796, GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 588, OTTAWA STEEL PLATE FEEDERS & EXAMINERS, LOCAL 31, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, LOCAL 6, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AMALGAMATED TRANSIT UNION, LOCAL 279 and GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 41-M

Lyle Kanee, for the Respondent Graphic Communications International Union, Local 41-M

Steve Waller, for the Respondents International Plate Printers, CEP Local 588 & IAMAW

Leonard Marvy, for the Respondent Ontario Labour Relations Board

Respondents

HEARD: November 29, 2005 at Ottawa

HEENEY J.:

[1] The Applicant employs 146 employees in its printing business. Those employees are, for reasons unexplained, represented by a total of 11 bargaining units. The Applicant applied to the Ontario Labour Relations Board (“the Board”) asking that it use its “reconsideration” powers under s. 114 of the Labour Relations Act 1995 to consolidate these 11 units into 2.

[2] When the matter was first heard by Alternate Chair Cummings, she was of the preliminary view that the Applicant was seeking a remedy that the Board “cannot grant”. However, the matter was adjourned for further submissions on the issue. In her final decision dated February 28, 2005, she accepted that her initial view was not correct, because it unnecessarily fettered the discretion of the Board. Accepting that the Board could grant the relief sought, she went on to consider whether the Board should do so. For various reasons that will be dealt with more fully below, she answered that question in the negative, and dismissed the application.

[3] The Applicant seeks relief by way of certiorari and mandamus with respect to that order. Specifically, the Applicant asks that the decision of the Board be set aside, and that the Board be directed to exercise its discretion under s. 114 and hear the Applicant’s application for reconsideration of the bargaining unit structures.

[4] It is first necessary to determine the appropriate standard of review. The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 at paras. 29-38, sets out four factors to be considered in applying the functional and pragmatic approach to this question. One of those factors is the nature of the question to be determined. Since that factor is central to the case as it has been presented to us, we will deal with it first.

[5] Subsection 114(1) of the Act reads as follows:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[6] In asking the Board to use its powers of reconsideration to consolidate these bargaining units the Applicant was, in effect, asking it to reconsider the certificates issued by the Board that created each of the bargaining units. Such a power has been exercised, based on similar statutory provisions, by labour boards in many jurisdictions across Canada, including the Canada Labour Relations Board.

[7] In its initial decision the Board questioned whether s. 114 could be used in this manner. The Board noted that the legislature had, in the past, granted to it specific authority to consolidate bargaining units, which power was removed in the Labour Relations and Employment Statute Amendment Act, 1995.

[8] In its final decision, however, the Board was prepared to accept that it does have broad jurisdiction under s. 114 to consolidate bargaining units. It then addressed the question whether it should do so. The factors considered by the Board included the following:

• the Board has consistently, since Gilbarco Canada Ltd., [1971] OLRB Rep. March 155, held that once the first collective agreement has been negotiated, the certificate that was issued by the Board has been “spent”, and thereafter the scope of the bargaining unit is to be defined or redefined by the parties to the collective agreement;

• in cases where the Board has redefined the bargaining unit, it has been on consent of the parties involved;

• amending a certificate which had been “spent” would not alter any changes to the bargaining units that had subsequently been negotiated by the parties;

• interference by the Board in negotiated bargaining structures would create uncertainty in the labour relations community;

• the labour relations community has, in general, benefited from the freedom to craft appropriate bargaining units in response to changing conditions.

[9] For those reasons, the Board declined to exercise its discretion under s. 114 to grant the relief requested.

[10] In challenging that decision, the Applicant places heavy reliance on the fact that s. 114 grants to the Board the power to reconsider “any” decision or order. Mr. Bird argues that the Board, in effect, has determined that it will never entertain a request for reconsideration of a certificate once the parties have entered into a collective agreement. In so doing, the Board has eliminated an entire class of decision from the ambit of s. 114, and has thereby declined to exercise a jurisdiction that was conferred upon it by the Legislature. This, he submits, is an error of law.

[11] We respectfully disagree. The language of s. 114 is permissive, not mandatory. It does not state that the Board “shall” reconsider their decisions, but only that they “may”. The Board considered whether it would exercise its discretion to consolidate the bargaining units and, for the policy reasons set out above, it declined to do so. In so doing, it did precisely what the Legislature empowered it to do.

[12] Mr. Bird referred to the policy established by the Canada Labour Relations Board for cases of this nature, which only intervenes in situations where serious labour relations problems exist, and where consolidation is best able to further the principles and policies of the Code. He suggests that this same policy should be followed by the Board. He draws a distinction between the policy of the CLRB and the approach taken by the Board in the case at bar. He argues that simply setting a high bar for relief is a different matter than foreclosing reconsideration of an entire class of decisions altogether.

[13] Once again, we disagree. There is no difference in nature between a policy that sets a high bar for intervention by the Board, and one which follows long-established practice and leaves the restructuring of bargaining units to the bargaining parties themselves. Both amount to the exercise of discretion, albeit in different ways.

[14] We do not, therefore, consider this to be a question of law. Rather, we consider the question to be whether the Board properly exercised its discretion in the matter before it. This is a question of mixed fact and law.

[15] We will now consider the other factors involved in the functional and pragmatic approach.

[16] In determining the appropriate standard of review, the presence or absence of a privative clause is compelling evidence as to the intention of the legislature regarding the degree of deference to be shown by a reviewing court. Here, s. 114 itself contains a privative clause, which grants to the Board the exclusive jurisdiction to determine all matters of law and fact, and provides that the Board’s decision is final and conclusive for all purposes.

[17] This is further strengthened by s. 116, which provides as follows:

No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

[18] It would be difficult to craft a provision that more clearly expresses the legislature’s intention that the court should exercise a high degree of deference to the decisions of the Board. It is noteworthy that these proceedings brought by the Applicant for certiorari and mandamus are specifically precluded by s. 116.

[19] The third factor to be considered is the purpose of the Act as a whole and the provision in particular. The purposes of the Act as a whole are expressed in s. 2 and include facilitating collective bargaining, recognizing the importance of workplace parties adapting to change, promoting flexibility, productivity and employee involvement in the workplace, encouraging co-operative participation of employers and trade unions in resolving workplace issues, and promoting the expeditious resolution of workplace disputes. All of these purposes support an inference of deference to the specialized expertise of the Board.

[20] The particular provision at issue, s. 114, supports the same inference. It provides the Board with the broad discretion to review its own decisions, and provides that those decisions are final and conclusive for all purposes.

[21] Finally, and most importantly, the expertise of the decision-maker must be considered. Here there is no dispute that the Board is a highly specialized tribunal which administers a comprehensive statute regulating labour relations, and which has developed its own body of jurisprudence. The specialized expertise of the Board is particularly important in light of the question that is at issue in this proceeding, since it involves matters of policy that are completely outside the knowledge and experience of a reviewing court.

[22] Having considered the factors noted above, we are of the view that the appropriate standard of review is one of patent unreasonableness.

[23] The decision of the Board was based on the factors outlined in para. 8 above. To the extent that it involves matters of fact and policy, the decision is a rational one, in that the conclusion arrived at has a rational connection to the reasons offered in support of it. To the extent that it involves matters of law, i.e. the concept that a certificate is “spent” once a collective agreement is entered in to, it has a sound basis in law traceable to the decision of Chief Justice Laskin in Terra Nova Motor Inn Ltd., 74 CLLC ¶14,253, and is consistent with 34 years of Board jurisprudence.

[24] We are satisfied that the decision of the Board is not patently unreasonable. Accordingly, the application is dismissed.

[25] With respect to costs, Mr. Bird submits that the application raises a novel point that has never been litigated in this court, such that no costs should be awarded. However, it is clear from the authorities filed that labour relations law has been settled for 34 years in this province to the effect that the restructuring of bargaining units is to be done by the parties, not the Board, once a collective agreement has been entered into. While it may true that this is the first time this issue has reached this court, it cannot be said that the application raises a novel point.

[26] We are of the view that there is no reason to deprive the successful respondents of their costs. One set of costs will be awarded to the parties represented by Mr. Waller in the amount of $3,500 inclusive of GST and disbursements, and one set to the party represented by Mr. Kanee in the same amount. Mr. Marvy does not seek costs on behalf of the Board, and none will be awarded.

Mr. Justice T. A. Heeney

Mr. Justice T. Platana

Mr. Justice H. McLean

DATE: December 6, 2005