CITATION: Roni Excavating Limited v. International Union of Operating Engineers, Local 793, 2011 ONSC 4079
COURT FILE NO.: 580/10
DATE: 20110712
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Swinton and Durno JJ.
B E T W E E N:
RONI EXCAVATING LIMITED AND/OR 865217 ONTARIO INC. O/A IRON EXCAVATING AND GRADING AND/OR NIRO BROS. EXCAVATING & GRADING INC. AND/OR IRON TRIO INC. AND/OR ORIN LANDSCAPING INC.
Applicant
- and -
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793
Respondent
Jonathan Cocker, for the Applicant
Melissa Atkins-Mahaney, for the Respondent
Voy Stelmaszynski, for the Ontario Labour Relations Board
HEARD AT TORONTO: June 13, 2011
Swinton J.:
Overview
[1] The applicant Employer, Roni Excavating Limited and/or 865217 Ontario Inc. o/a Iron Excavating and Grading and/or Niro Bros. Excavating & Grading Inc. and/or Iron Trio Inc. and/or Orin Landscaping Inc. has been found to be a single employer under the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A (“the Act”). It seeks judicial review of two decisions of the Ontario Labour Relations Board (“the Board”): the first, on October 1, 2010 certifying the respondent, the International Union of Operating Engineers, Local 793 (“the Union”), to represent certain employees of the applicant and the second, on November 10, 2010, refusing to grant reconsideration of the earlier decision.
[2] For the reasons that follow, I am of the view that the Board’s decisions are reasonable, and the application for judicial review should be dismissed.
Factual Background
[3] The Employer is a construction company operating throughout the greater Toronto area, primarily engaged in residential excavation and site development.
[4] On Saturday, September 18, 2010, the Union filed an application with the Board for certification under s. 128.1 of the Act, which is part of the construction industry provisions of the Act. Section 128.1 allows the trade union to elect to have its application for certification based on membership card evidence, rather than on a vote.
[5] On September 21, 2010, the Union provided the Board with a certificate of delivery, indicating that it had hand delivered the application to the Employer on September 20, 2010. In its application, the Union indicated that there were six employees in the proposed bargaining unit on the date of the application, and it submitted union membership cards for those employees.
[6] On September 22, 2010, around 10:20 AM, the Board sent the Employer its Confirmation of Filing Form (Form B-59) by facsimile. Page one of the form stated that the Union had delivered its application to the Employer on September 20, 2010, and this was the “Delivery Date.” Enclosed were Notice to Employees of Application for Certification, Construction Industry and a Confirmation of Posting form.
[7] The Notice to Employees had a Date of Delivery on its first page of September 20, 2010. In the form, the Board described its usual practice in a s. 128.1 application. If the Board is satisfied by the membership cards submitted that more than 55% of the employees in the bargaining unit are union members, the Board may certify without a vote. The Board also stated that this type of application is usually considered on the day following the filing of the response.
[8] Pursuant to s. 128.1(3) of the Act and Rule 25.5 of the Board’s Rules, an employer must respond to a union’s application for certification within two days after receiving notice. On September 23, 2010, the Employer provided its written response to the application, noting that the Union’s application excluded 38 employees from the bargaining unit.
[9] On Monday, September 27, 2010, the Union sent submissions to the Board, copied to the Employer’s counsel, arguing that the Employer’s responding materials were late and should not be considered.
[10] On October 1, 2010, the Board issued its decision, in which it certified the Union as the bargaining agent for the applicant’s employees. The Board declined to consider the Employer’s submissions. It held that a party seeking to have the Board exercise its discretion to consider information filed late under s. 128.1(3) must request the Board to do so and give reasons. Given there was no request here, the Board did not consider the response.
[11] On October 8, 2010, the Employer informed the Board that the Union’s application had not been delivered on September 20, 2010, but rather on September 21, 2010. As such, its response was timely. Consequently, it would be requesting reconsideration and an opportunity to call evidence in relation to the delivery date.
[12] On October 13, 2010, the Union provided submissions supporting the September 20, 2010 delivery date. This led the Employer to provide two affidavits, on October 15, 2010, supporting its submission that the delivery date was September 20, 2010. One of those affidavits, from the receptionist, indicated that she received the documents on September 21, 2010 and stamped the envelopes with the dates. She did not give them to Connie Niro, the president of two of the companies, on that day because Ms. Niro was away from the office, returning on the 23rd. I note there is no explanation as to why the material was not given to either of the two other individuals named on the envelopes.
[13] On October 29, 2010, the Employer sought reconsideration of the certification decision. In its materials, it stated that the Union’s application had been delivered on September 21, 2010, and so the response was timely. In the alternative, it asked the Board to exercise its discretion to relieve against the time limits, because the delay was caused by the Union’s improper representation to the Board as to the date of delivery.
[14] On November 10, 2010, the Board declined the request for reconsideration. It found that the Employer had failed to explain why it made no effort to explain its delay until October 8, 2010. The Employer should have been aware of the Union’s stated delivery date from the Board’s fax of Form B-59 on September 22, 2010. As well, the Union’s position was clear in the submissions dated September 27, 2010 that alleged the Employer’s response was untimely.
[15] The Board held that reconsideration is not available where the party requesting it cannot show that evidence that could materially affect the Board’s determination was not known to the party beforehand. The Employer did not meet this test, particularly in light of the Union’s reply submissions on September 27, 2010.
The Standard of Review
[16] The parties are agreed that the standard of review is reasonableness with respect to the interpretation and application of the Act.
Analysis
[17] At the hearing of this application for judicial review, Employer’s counsel focused on the reconsideration decision. He conceded that given the material before the Board, it could reasonably come to the decision to certify, as it believed that the Employer’s materials were submitted late, and no request for an extension had been made.
[18] The Employer submits that the Board must grant a reconsideration request and hold a hearing where there are allegations of fraud that are both material and determinative of the matter in issue. Therefore, the Board’s decision, on reconsideration, was unreasonable. Its failure to consider the fraudulent misrepresentation by the Union and its refusal to grant the Employer a hearing on this issue constituted a breach of the rules of natural justice.
[19] The Employer also argues that the Board was in breach of s. 64(1) of the Act, which allows the Board, at any time, to declare that a trade union no longer represents the employees in the bargaining unit if the Board finds that the union has obtained a certificate by fraud.The Employer relies on two decisions of the Board: Wallcraft Painting and Decorating Ltd., [1989] O.L.R.B. Rep. March 306 (at para. 8) and Russell H. Stewart Construction Company Limited, [1990] O.L.R.B. Rep. Jan. 79 (at para. 3).
[20] As well, the Employer relies on s. 110(16) of the Act, which confers the power on the Board to determine its own practice and procedure, but requires the Board to “give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.”
[21] The suggestion that the Board was in “breach” of s. 64(1) of the Act is inappropriate. The Board is not in violation of that provision because it refused to hold the requested hearing. At most, a trade union can be found to have committed fraud, with the result that a certificate can be revoked by the Board pursuant to s. 64(1).
[22] Moreover, I note that the submissions made by the Employer to the Board in support of the request for reconsideration do not mention of s. 64(1) of the Act, nor do they use the word “fraud”. At most, they allege that the Union misrepresented the delivery date for the application and request an extension of time for their submissions. Misrepresentation can be innocent or negligent, as well as fraudulent. Therefore, there is no merit to the Employer’s submission that the Board ignored an allegation of fraud and erred in focusing on timeliness.
[23] In its reconsideration decision, the Board set out the test normally applied, making reference to Sarnia Jail, [1997] O.L.R.D. No. 3512 at para. 2:
... the Board will generally not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or where a party seeks to make representations which it has had no previous opportunity to make.
[24] The Board refused to grant the request for reconsideration because it was not satisfied that the Employer had new evidence which it could not have obtained with reasonable diligence before the initial decision. The Board found as a fact that the Employer had notice of the delivery date issue at the latest on September 27 with the Union’s reply submissions (Reasons, para. 21). The Board rejected the Employer’s argument that it did not need to respond to those submissions, stating (at para. 27):
The responding parties’ argument that it could ignore in their entirety the applicant’s submissions of September 27th squarely addressing the issue of the response’s timeliness because they were “unilaterally submitted” is farfetched and unpersuasive. At least reading those submissions would have put the responding parties on notice that the applicant had a different “belief” about the delivery date.
[25] In my view, the Board’s decision not to grant the request for reconsideration was reasonable. The Board was not required to hold a hearing just because misrepresentation by the Union was alleged. In Wallcraft, above, the Board had cogent evidence before it of possible prohibited conduct by the employer during a certification campaign. In Stewart, above, the Board concluded that the allegations raised by an employee “suggest a serious abuse of the Board’s process, which may constitute fraud” (at para. 3).
[26] In the present case, the Board inquired into the circumstances and concluded that the applicant should have been aware that timeliness was an issue before the Board issued its initial decision and raised the issue earlier. At the latest, the Employer knew on September 27 that the Union was arguing that the Employer’s response was untimely because the application was delivered on September 20, 2010. The Employer provided no plausible explanation to the Board as to why it chose not to address the delivery issue in a timely manner. Therefore, the Employer did not meet the test for reconsideration, as it had not shown that the evidence it sought to adduce was not available earlier. Nor is this a case where the Employer has been denied the opportunity to make representations that it had no previous opportunity to make.
[27] The Board’s reconsideration decision falls within a range of reasonable outcomes, given the record before it, and there was no denial of procedural fairness by it. Therefore, it is deserving of deference.
Conclusion
[28] For these reasons, the application for judicial review is dismissed.
[29] The Board does not seek costs, and none are awarded.
[30] The Union shall have costs of the application. While Union counsel submitted a bill of costs at the end of the hearing, the Employer’s counsel did not provide a bill of costs, and no submissions were made on quantum.
[31] If the parties cannot agree on the quantum, Employer’s counsel shall make brief written submissions on the Union’s bill of costs within 15 days of the release of this decision, with the Union responding within 10 days.
Swinton J.
Jennings J.
Durno J.
Released: July 12, 2011
CITATION: Roni Excavating Limited v. International Union of Operating Engineers, Local 793, 2011 ONSC 4079
COURT FILE NO.: 580/10
DATE: 20110712
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Swinton and Durno JJ.
B E T W E E N:
RONI EXCAVATING LIMITED AND/OR 865217 ONTARIO INC. O/A IRON EXCAVATING AND GRADING AND/OR NIRO BROS. EXCAVATING & GRADING INC. AND/OR IRON TRIO INC. AND/OR ORIN LANDSCAPING INC.
Applicant
- and -
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: July 12, 2011