CITATION: Ontario Sheet Metal Workers’ & Roofers’ Conference v. Ellis-Don Limited, 2010 ONSC 3783
DIVISIONAL COURT FILE NO.: 437/09 and 92/10
DATE: 20100629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
ONTARIO SHEET METAL WORKERS’ AND ROOFERS’ CONFERENCE
Applicant
– and –
ELLIS-DON LIMITED, ELLIS DON CORPORATION and ONTARIO LABOUR RELATIONS BOARD
Respondents
AND B E T W E E N:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 586
Applicant
-and –
ELLIS DON CORPORATION and ONTARIO LABOUR RELATIONS BOARD
Respondents
Stephen B. D. Wahl, for the Applicant, Ontario Sheet Metal Workers’ and Roofers’ Conference
Ronald N. Lebi, for the Applicant, International Brotherhood of Electrical Workers, Local 586
Mark D. Contini, for the Respondents, Ellis-Don Limited and Ellis Don Corporation
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: June 29, 2010
WILTON-SIEGEL J. (ORALLY)
[1] These two applications for judicial review are being heard together as they raise a common issue.
[2] The International Brotherhood of Electrical Workers, Local 586 (the “Electrical Workers”) applies to this Court to set aside an arbitral decision of the Ontario Labour Relations Board (the “Board”) dated August 5, 2009 pursuant to a construction industry grievance.
[3] The Ontario Sheet Metal Workers’ and Roofers’ Conference (the “Sheet Metal Workers”) applies to set aside another arbitral decision of the Board dated December 2, 2009.
[4] In each case, the Board found that a Working Agreement dated February 16, 1965 between Ellis-Don Limited (“Ellis-Don”) and Essex & Kent Counties Building and Construction Trades Council did not confer bargaining rights on the applicants.
[5] The parties are agreed that the standard of review is one of reasonableness as contemplated by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 291 D.L.R. (4th) 577. For the reasons set out in paragraph 31 of the Board’s factum, we reject the Electrical Workers’ submission that the comments made by Vice-Chair McKee in paragraph 6 of the decision dated August 5, 2009 in any way modify this standard.
[6] In each decision, the Board found that the two-paragraph Working Agreement was not a collective agreement. The applicants do not challenge this finding.
[7] The Board also found in each case that the Working Agreement cannot be said to create or reflect recognition rights in favour of the applicants, and as such, was not a recognition agreement.
[8] We are satisfied that this finding in each decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
[9] We are also satisfied that the decision-making process used in each case was transparent, intelligible and justifiable.
[10] There is nothing in the Working Agreement that provides for any explicit recognition of, or the creation of, bargaining rights in favour of the applicants. In each case, the Board read the agreement as a whole and found the first paragraph to be of paramount importance. In each case, the Board also drew a distinction between an agreement to be bound by all the provisions and conditions of the respective collective agreements of the applicants attached to the Working Agreement covering all classifications of employees and an agreement to be bound to the respective collective agreements.
[11] The Board concluded that the proper way to read the words “bound by” is to read them as synonymous with “abide by”. In each case, the Board found that Ellis-Don agreed to abide by the provisions and conditions of the collective agreement but did not agree to be bound to the collective agreement.
[12] There is ample support for this interpretation in the Working Agreement. If the intention of the parties had been to bind Ellis-Don to the collective agreements, it would not have been necessary to refer to “all the provisions and conditions covering all classifications of employees” in paragraph 1. If that had been the intention, all that would have been required was a statement that Ellis-Don agreed to be bound to the collective agreements.
[13] Further, if that had been intended, the parties would have expressed Ellis-Don’s involvement as a binding obligation as if it had been a signatory to the collective agreements or had executed the collective agreements as a party thereto. While this language appears in paragraph 2, it was expressly omitted from paragraph 1.
[14] Lastly, paragraph 2 is restricted in its operation to changes and renewals of the provisions and conditions in the collective agreements. The inclusion of language by which Ellis-Don agrees to be bound by such changes or renewals “to the same extent as though [it] had executed such agreements” cannot be used to introduce bargaining rights as a result of subsequent developments when they were not granted at the time the Working Agreement was entered into.
[15] The applicants submit in the alternative, that the provisions of the collective agreements conferred bargaining rights and that by agreeing to be bound by those provisions, Ellis-Don indirectly conferred bargaining rights in favour of the applicants. Whether or not execution of the collective agreements would have conferred bargaining rights, which is disputed by Ellis-Don, the finding of the Board that the Working Agreement was limited in effect to binding Ellis-Don to provisions and conditions covering employees, rather than to a collective agreement, precludes such a finding.
[16] The Sheet Metal Workers also submitted that there had been a denial of natural justice because:
(i) The delay in delivering reasons of over two years resulted in unfairness which was aggravated by the Board’s refusal to deal with an application to terminate the proceeding pursuant to s.115.1 of the Labour Relations Act; and
(ii) When the decision dated December 2, 2009 was delivered, it obviously simply echoed the analysis of the decision released on August 5, 2009 with no opportunity having been given to the Sheet Metal Workers to make submissions upon the August 5, 2009 decision.
[17] First, we observe that the Sheet Metal Workers took no steps to obtain relief under s.115.1 until the decision of August 5, 2009, which was unfavourable to the position of the Sheet Metal Workers, was released. No prejudice caused by the delay was demonstrated. Delay alone is not sufficient to establish prejudice, even in labour relations matters where delay is to be avoided. (See Electrical Workers v. K2 Contracting Inc., [2003] O.J. No. 2680 (Div. Ct.)).
[18] Second, there is no evidence that the decision of December 2, 2009 was not arrived at as a result of an independent analysis based on the evidence and submissions to the arbitrator in that proceeding. The Sheet Metal Workers are unable to rebut the presumption of regularity of the Board’s proceedings.
[19] Third, while the Sheet Metal Workers applied for relief under s.115.1 of the Labour Relations Act, they made no request to re-attend or otherwise make further submissions to the arbitrator regarding the significance of the August 5, 2009 decision.
[20] For these reasons, both applications are dismissed.
WILTON-SIEGEL J.
JENNINGS J.
SACHS J.
JENNINGS J.
[21] I have endorsed the back of the Record in Sheet Metal: “The application is dismissed for oral reasons delivered today. On consent, costs fixed at $5,000.00 payable by each of Sheet Metal Workers and Electrical Workers, for a total of $10,000.00, forthwith.”
JENNINGS J.
SACHS J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: June 29, 2010
Date of Release: September 29, 2010
CITATION: Ontario Sheet Metal Workers’ & Roofers’ Conference v. Ellis-Don Limited, 2010 ONSC 3783
DIVISIONAL COURT FILE NO.: 437/09 and 92/10
DATE: 20100629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
ONTARIO SHEET METAL WORKERS’ AND ROOFERS’ CONFERENCE
Applicant
– and –
ELLIS-DON LIMITED, ELLIS DON CORPORATION and ONTARIO LABOUR RELATIONS BOARD
Respondents
AND B E T W E E N:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 586
Applicant
-and –
ELLIS DON CORPORATION and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
WILTON-SIEGEL J.
Date of Reasons for Judgment: June 29, 2010
Date of Release: September 29, 2010