COURT FILE NO.: 532/08
DATE: 20090609
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, LOW AND BRYANT JJ.
B E T W E E N:
THE MACKENZIE CONSTRUCTION GROUP INC.
Applicant
- and -
THE INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL UNION 1891 and ONTARIO LABOUR RELATIONS BOARD
Respondents
John Rowinski, for the Applicant
Ronald Lebi, for the Respondent, International Union of Painters and Allied Trades, Local Union 1891
Leonard Marvy, for the Ontario Labour Relations Board
HEARD at Toronto: June 9, 2009
SWINTON J.: (Orally)
[1] The applicant, the Mackenzie Construction Group Inc. (“Mackenzie”), applies for judicial review of the Reconsideration Decision of the Ontario Labour Relations Board (“the Board”) dated July 25, 2008.
[2] In its July 14, 2008 decision, the Board granted the application of the respondent, the International Union of Painters and Allied Trades, Local Union 1891 (“the Union”), certifying the Union as the bargaining agent of painters, apprentices and drywallers in the employ of Mackenzie for certain geographical regions in Eastern Ontario.
[3] Mackenzie requested a reconsideration of the July 14 order, which reconsideration was denied by the decision of the Board dated July 25, 2008. In the Request for Reconsideration, Mackenzie said the following in support of its request:
The Mackenzie Construction Group is the general contractor and all work is sub contracted for all jobs.
[4] The Board’s Form A-49 directs a requesting party to read Information Bulletin No. 19 before completing the form. Both the form and the Information Bulletin make it clear that the requesting party must include complete representations in support of its request.
[5] Subsection 114(1) of the Ontario Labour Relations Act, S.O. 1995, c.1, Sch. A provides that the Board may, at any time, if it considers it advisable to do so, reconsider any decision. The applicant argues that it was denied procedural fairness because the Board failed to request that Mackenzie provide further evidence in support of its position before denying the Request for Reconsideration.
[6] The Board’s approach to a request for reconsideration is set out in Information Bulletin No. 19. It provides under the title “General Guidelines”:
Generally, the Board will not reconsider its decision unless the requesting party has new evidence that would be practically conclusive of the case and that it could not have reasonably obtained earlier, or the party has new objections or arguments that it had no opportunity to raise earlier. Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. (See John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096). If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision.
[7] The following are our conclusions. First, the affidavit evidence is inadmissible except for paragraphs 12, 13 and 14 of Mr. Mackenzie’s affidavit, which go to the issue of procedural fairness.
[8] Second, in our view, there was no denial of procedural fairness. The Board fully considered Mackenzie’s reconsideration request. As the Board observed, no reason was offered by Mackenzie for its failure to file a response to the application for certification in a timely way. As well, Mackenzie provided no evidentiary support for the statement that it had no employees of its own.
[9] Mackenzie had an opportunity and an obligation to establish some factual basis for the Board to reconsider its original decision. Mackenzie did not provide a reason for its failure to respond to the initial certification application, nor did it set out any factual issue that it wished the Board to consider in support of its assertion that it had no employees. The Board found that there was some prejudice to the Union.
[10] In our view, the decision, based on the material before the Board, was reasonable, and there was no denial of procedural fairness.
[11] Therefore, the application for judicial review is dismissed.
COSTS
[12] I have endorsed the Application Record, “This application is dismissed for oral reasons delivered by Swinton J. on behalf of the Court. Costs to the Union fixed at $4,000.00, all inclusive, payable by the applicant.”
___________________________
SWINTON J.
___________________________
LOW J.
___________________________
BRYANT J.
Date of Reasons for Judgment: June 9, 2009
Date of Release: June 15, 2009
COURT FILE NO.: 532/08
DATE: 20090609
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, LOW AND BRYANT JJ.
B E T W E E N:
THE MACKENZIE CONSTRUCTION GROUP INC.
Applicant
- and -
THE INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL UNION 1891 and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 9, 2009
Date of Release: June 15, 2009