COURT FILE NO.: 06-DV-1209

Ottawa

DATE: 20070412

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: International Union of Bricklayers and Allied Craft Workers, Local 7 Applicant

-and-

Operative Plasterers, Cement Masons, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598; Colonial Building Restoration; Labourers International Union of North America, Local 527; 921879 Ontario Limited; Masonry Industry Employers Council of Ontario; Ontario Masonry Contractors Association Respondents

HEARD: April 3, 2007

BEFORE: Leitch, R.S.J., Lane and Hambly, JJ.

COUNSEL: Steve Waller, for the Applicant; Douglas J. Wray for the Respondent Operative Plasterers, Local 598; Ronald Lebi, for the Respondent Labourers Union Local 527; D. Power for the Respondents Employers Council and Masonry Contractors Association; Mark D. Contini for the Respondent Colonial; Voy T. Stelmaszynski for Ontario Labour Relations Board; No one appeared for 921879.

LANE, J.:

REASONS FOR DECISION

[1] This is an application for judicial review of a decision of the Ontario Labour Relations Board dated December 19, 2005 and a Reconsideration Decision dated March 7, 2006, resolving a work jurisdiction dispute between construction trade unions as to which union’s members ought to be assigned specific work on a particular project. In so doing, the Board was exercising its jurisdiction under section 99 of the Labour Relations Act, (“Act”), which vests in the Board the exclusive jurisdiction to determine complaints that work is being assigned by an employer to members of one union rather than another, contrary to the Act or to a collective bargaining agreement (“CBA”).

[2] The contending unions are the applicant Bricklayers Union, Local 7, (“Bricklayers”) with whom the respondent Labourers Union Local 527 (“Labourers”) is allied, and the respondent Operative Plasterers, Local 598, (“Plasterers”). The work involved is the stone masonry work on the Victoria Memorial Museum Building in Ottawa.

[3] Construction industry CBAs typically require employers to assign work to the appropriate craft-based union with whom the employer has a collective bargaining relationship. Such CBAs typically also require the employer, when contracting work out to other employers, to protect the union members by contracting only with sub-contractors having CBAs with the same unions.

[4] In the present case, the Museum contracted with PCL Constructors Canada Inc. (“PCL”) to perform the work. PCL has CBAs with the Bricklayers and the Labourers, relating to the type of work in question, but not with the Plasterers who also perform such work.

[5] PCL decided to subcontract the work and pre-qualified several subcontractors, including the respondent Colonial. Although PCL’s bid documents required bidders to ensure that PCL’s CBA obligations would be complied with, it awarded the subcontract to Colonial, which had a CBA with the Plasterers but not with either Bricklayers or Labourers. Colonial commenced work using its own employees, members of the Plasterers. The Bricklayers and the Labourers filed grievances against PCL for its breach of its CBA responsibilities to them. In response, the Plasterers filed a notice with the Board asking it to use its section 99 jurisdiction to confirm that the assignment of the work to members of the Plasterers was correct.

[6] PCL then put pressure on Colonial to change the work assignment. Colonial responded by further sub-contracting the work to R.J.W. Stonemasons, a division of the respondent 921879 (“RJW”), which was without a CBA at the time. As a condition of obtaining the work, RJW entered into voluntary recognition agreements with Bricklayers and Labourers. The work thus ended up being performed by members of those unions, completing the circle. Colonial, but not PCL, filed a further section 99 notice over the work on the basis that it should be assigned to Plasterers.

[7] The Board held a consultation regarding the two complaints before it and on December 19, 2005, it ordered that Colonial be regarded as the employer and assign the work to Plasterers in accordance with Colonial’s CBA responsibilities to Plasterers. Labourers, supported by Bricklayers, filed an application to the Board for a reconsideration of the decision. On March 7, 2006, the Board dismissed the reconsideration request. Bricklayers now seeks judicial review of these decisions.

The Standard of Review

[8] The parties are in agreement that the standard of review of the Board dealing with its section 99 jurisdiction is patent unreasonableness. We agree with that position. The Board is protected by two strong privative clauses, sections 114(1) and 116 of the Act. The Board is widely recognized as possessing an expertise in labour matters not shared by the court and the Legislature has confided in the Board exclusive jurisdiction to regulate those matters. In particular, the jurisdiction under section 99 clearly lies at the heart of the mandate of the Board. It is also largely a fact-finding exercise and that aspect of its work is protected by the deference paid by this court to the primary finder of fact. We do not re-weigh evidence, but confine our factual review to whether the evidence existed on which the Board could found its decision. Finally, the actual problem is the essence of labour relations: the resolution of jurisdictional or work assignment disputes between trade unions.

[9] The content of the standard of patent unreasonableness was addressed by the Supreme Court in Southam[^1] where the Court stated that if the defect is apparent on the face of the tribunal’s reasons, the decision was patently unreasonable, but if it takes some significant searching to find the defect, then it is not patently unreasonable. This is obviously a very high standard of review, which has variously been described as “clearly irrational”[^2] or as “so flawed that no amount of curial deference can justify letting it stand.[^3]”

The Statute

[10] Section 99 comes into play when the Board receives a complaint that, inter alia, “an employer” is assigning work to persons in a particular trade union or in a particular trade or craft rather than to persons in another. As noted above, the obligation to employ members of a particular union for particular kinds of work is an important feature of construction CBAs. The Board has extensive powers, including the power to alter bargaining units and the power to “make any interim or final order it considers appropriate after consulting with the parties.” (section 99(5)). This extraordinarily broad power is left entirely to the Board to administer. There are no statutory directions, guidelines or limitations directing the Board as to the factors to be considered or the weight to be given to those that are considered. The Board has developed a body of arbitral jurisprudence, but the Legislature has left the Board to exercise its discretion according to the infinitely variable facts as they arise.

The Board’s Decisions

[11] As noted, the statute refers to “an employer” assigning work. Accordingly, the Board set out to determine who was the employer for the purposes of section 99. The Board considered each of PCL, Colonial or RJW. This was a matter of importance because the “consideration of the usual criteria” applied in section 99 cases “could lead to different conclusions depending on who the employer is.”[^4] Among the criteria developed by the Board in its jurisprudence are a consideration of the CBA connections of the employer and a consideration of the employer’s past practices in the assignment of similar work. The identity of the employer is clearly central to these considerations. At paragraph 12, the Board noted that the dispute has arisen because PCL allegedly violated its CBA obligations by subcontracting to an employer with whom Bricklayers and Labourers have no CBA, and then complicated the situation by encouraging Colonial to violate its CBA by a further subcontract to RJW. It went on to consider the Board jurisprudence as to the effect of subcontracting: was a subcontract an assignment of work by the general contractor? Was the act of subcontracting devoid of labour relations consequences? It concluded that the involvement of both general contractor and subcontractors in the litigation of a jurisdictional dispute was important for the process.

[12] The Board next turned to the position of PCL, a matter on which the applicants in the present case say the Board acted in a patently unreasonable fashion. At paragraph 24, the Board stated that no one had made PCL a party, nor had PCL provided any materials or any explanation of its practice in the assignment of work. Further, the Board said:

“I do not see how PCL could be made subject of a direction regarding an assignment in this case. Counsel for Labourers 527 insists that PCL can be made subject of a direction in this case as it has been given notice of these proceedings and has chosen not to participate. In support of this submission, he cites Comstock Canada[^5] and Ontario Hydro[^6] . Both of those cases are distinguishable as the employer that chose not to participate was named as a party to the proceeding. In the circumstances of this case it would not be appropriate [to] make a direction against PCL. Therefore, the practice and preference of PCL is less significant in the overall determination of this case.”

[13] The Board then went on to consider Colonial and RJW and concluded that the practice of Colonial in assigning work to the competing unions was of greater significance than the practice of RJW, which had no union practice prior to the Museum job. The Board then made the important finding that the “criteria of employer practice favours the claim of [Plasterers ]”.

The “Party” Issue

[14] This finding, and in particular the alleged elimination of PCL from further consideration because it was not a party, was vigorously attacked before us by counsel for the applicant Bricklayers. The decision was patently unreasonable: fatally flawed by the clearly erroneous finding that PCL was not a party. This finding skewed the entire proceeding by wrongly eliminating the general contractor whose CBA ties were to the Bricklayers and Labourers. We were referred to the definition of “party” which includes anyone named in an application. The various applications and related documents all name PCL. Therefore the Board was in error.

[15] These arguments were made to the Board in the reconsideration application before being made to us. In the March 2, 2006 decision, the Board addressed the status of PCL, noting that PCL was not named as a “responding party”, but as an “interested party” entitled to notice of the proceedings. No one had asked the Board to make PCL a responding party, nor did anyone assert any claim to relief against PCL. At paragraph 9, the Board said that an entity is generally named as a responding party when relief is being sought from it, and as an interested party when no relief is sought from it but it has some interest in the proceedings.

[16] An examination of the documents in which PCL was named discloses that there are different areas in the Board’s forms for “responding parties” and “other” parties. PCL appears in the latter class. Thus, while the definition is broad, the practice seems, not surprisingly, to be as the Board describes it.

[17] Returning to the Board’s March decision, at paragraph 10, the Board pointed out that, as no relief was claimed against PCL, fairness would prevent the grant of relief in the circumstances. In the reconsideration application, Labourers asked for an order that the Board order PCL to assign the disputed work to Bricklayers and Labourers. At paragraph 11, the Board points out that nowhere in the materials filed did anyone assert that PCL had made an assignment or that it should be directed to make an assignment of the work. Bricklayers and Labourers did not rely on any assignment of work by PCL; they asserted that the assignment by RJW to themselves ought to be confirmed. The Board concluded:

I can only assume that the parties crafted their pleadings carefully and deliberately and chose not to describe the contract from PCL to [Colonial] … as an assignment by PCL.

[18] In my view, the clarification of the position in the reconsideration order entirely answers the submission that the Board made an egregious error in dealing with the position of PCL. There was no error. It was entirely reasonable for the Board to conclude that PCL’s practices should be given less weight in the circumstances. However, the Board did not, as submitted, entirely eliminate PCL from consideration. There may have been some infelicity of expression, but the Board was not acting irrationally or without any line of reasoning that could take it to its conclusion. The Board did not conclude, as counsel for Labourers submitted, that no order could be made against PCL simply because PCL had chosen not to participate actively. On the contrary, the Board felt that it could not in fairness have made any order when no one had made any allegation against PCL. It was not of a mind to make such an order in any event, because the circumstances did not make it appropriate to do so.

The “Local Area” Issue

[19] The applicant disagreed with the Board’s consideration of the factor of the general practice of contractors in the local area in the assignment of work to one union or the other, arguing that the Board failed to assess the practice at various construction sites in the area (number 15 of the 32 areas into which Ontario is divided for this purpose). The applicant presented evidence of many projects where such work had been assigned to them, whereas the Plasterers advanced only a few. The Board acknowledged that by far the greater amount of such work was performed by the members of Bricklayers and Labourers, but, the applicant submitted, despite that fact, the Board patently unreasonably favored the Plasterers.

[20] The Board did consider this factor in its reasons, beginning at paragraph 26. It pointed out that most of the evidence relied on was related to “single trade contractors” that is, contractors with CBA ties to only one side of the two contending parties in this dispute. As it happened, most of the local contractors had such ties with Bricklayers and Labourers. However, the Board appears to have given consideration to the jurisprudence brought to its attention by Plasterers to the effect that the Board customarily gives little weight to work assignments made by contractors who are bound by CBAs with only one of the two competing unions. The Board considered other local area factors with care and, in the end, acknowledged that this factor may have favoured the applicant although the CBA obligations of Colonial favoured assignment to the Plasterers. This may not have been the clearest part of the decision, but it is clear that the Board considered the local practice and the predominant position of Bricklayers and Labourers in it, as well as the jurisprudence. One may disagree with the weight given to these matters in the conclusion about the local area factor, but the analysis cannot be described as irrational.

[21] This concludes the discussion of the matters that were pressed in argument. In my view, the Board conducted a thorough and careful review of the factors that Board jurisprudence has evolved as relevant and helpful. There is an evident line of reasoning leading to the conclusions reached. The decision reached was not patently unreasonable.

[22] For these reasons, I would dismiss the application.

Lane J.

Leitch R.S.J.

Hambly J.

DATE: April 12, 2007

[^1]: Canada (Director of Investigation and Research v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at paragraph 57. [^2]: Canada (Attorney General) v. P.S.A.C. 1993 125 (SCC), [1993] 1 S.C.R. 941, 963-4. [^3]: Ryan v. Law Society (New Brunswick), (2003) 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.), paragraph 52. [^4]: December reasons, paragraph 10. [^5]: [1993] O.L.R.B. Rep. Aug 740 [^6]: [1994] O.L.R.B. Rep June 752