CITATION: Labourers Int’l Union of North America v. SNC-Lavalin Inc., 2011 ONSC 6125
DIVISIONAL COURT FILE NO.: 482/10
DATE: 20111014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROWN R.S.J., DAMBROT AND HOY JJ.
BETWEEN:
LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL
Applicant
– and –
SNC-LAVALIN INC., SNC-LAVALIN GROUP INC. AND SNC-LAVALIN POWER ONTARIO INC. AND ONTARIO LABOUR RELATIONS BOARD
Respondents
Lorne A. Richmond and Charlene Wiseman, for the Applicant
Jeffrey P. Mitchell and Lisa C. Cabel for the Respondents, SNC-Lavalin Inc., SNC-Lavalin Group Inc. and SNC-Lavalin Power Ontario Inc.
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: October 14, 2011
DAMBROT J. (orally)
[1] This is an application brought by the Labourers International Union of North America, Ontario Provincial District for judicial review of the decision of the Ontario Labour Relations Board, dated September 22, 2010, dismissing the Union’s application for certification against SNC-Lavalin Group Inc. and SNC-Lavalin Power Ontario Inc. (collectively “SNC”) and to have SNC declared a “related employer”. In dismissing the application the Board found that SNC was not the employer of David Doucette and Lucien Desrochers, two construction labourers working on an SNC job site.
[2] In 2006, SNC entered into a contract with Ontario Power Generation Inc. to design and construct a new hydro electric generation station. In September, 2007, SNC contracted with 1041536 Limited, which was owned by David Witty, to provide construction management services at the project. Mr. Witty was the sole employee of his company. Shortly after his arrival, Mr. Witty had difficulties with the performance of the then project management group, Louisbourg. Eventually SNC ended its contract with Louisbourg and, by the end of the day on October 30, 2007, Louisbourg was off the site.
[3] During Louisbourg’s departure, Mr. Witty and Damien Kulasingham, a vice president of SNC, discussed how to ensure that the essential site service work, including maintaining the water pumps, would be carried out. Mr. Kulasingham explicitly told Mr. Witty that under no circumstances was he to hire labourers on behalf of SNC as SNC was not a signatory to a collective agreement, and the direct hiring of trades was not in the SNC business model.
[4] On October 30, Mr. Doucette told Mr. Witty that he and Mr. Desrochers, who had been working for Louisbourg, wanted to stay and continue to work. Mr. Witty told them that SNC would not hire them, but that he needed two people to watch the pumps. He entered into a “gentleman’s agreement” with them to stay and look after the pump watch, and he would ensure that they got paid. If he could not get them hired by another contractor, he said that he would put them on his company’s payroll. The two men began their pump watch duties that evening. They were both aware that they were not employed by SNC, and would not be paid by SNC.
[5] At the same time, Mr. Kulasingham negotiated with Vector to take over responsibility for the site services. Vector was a signatory of a collective agreement with the Union, and agreed to do anything that was needed including taking on the two labourers. This agreement was not communicated to Mr. Witty until November 10, 2007. Ultimately Vector paid the two labourers retroactive to October 30.
[6] The Union raises the following grounds of appeal. First, it says, the decision of the Board is unreasonable because:
(1) the Board’s decision was made on the basis of irrelevant considerations and by ignoring relevant considerations;
(ii) the Board’s determinations were contradicted by the party’s positions and evidence; and
(iii) the Board deprived the Union of the opportunity to pursue rights under the Labour Relations Act.
In addition, the Union argues that:
(iv) the Board breached the principles of natural justice.
[7] There is no dispute that in relation to the Board’s findings of fact raised in the first three grounds, the standard of review is reasonableness and that this Court owes deference to the Board, but with respect to the allegation of a breach of natural justice, there is no standard of review and no deference is owed to the Board.
[8] With respect to the first ground, the Union says that the Board allowed labour relations reality to be trumped by commercial form and to be eclipsed by employer intentions and employee perception. In particular, the Union says that because the Board found that Mr. Witty exercised fundamental control over the employment of the two labourers, it should have concluded that SNC was the employer. It erred in avoiding that conclusion solely because of SNC’s avowed intention not to be the employer, and the employees’ understanding flowing from their knowledge of this intention.
[9] We are satisfied that the Board’s decision about the identity of the employer is a decision on a matter that is at the heart of the Board’s jurisdiction, falls well within the range of possible acceptable outcomes and meets the reasonableness standard. We are not entitled to interfere. In our view, this argument is really an effort to re-argue the merits of the case, which is not permissible.
[10] In any event, we are satisfied that the Board identified the correct factors (the so-called York Condominium factors) in making the decision, and did not err in its application of them. The relative significance of the various factors depends on the circumstances of the particular case, a question that falls squarely within the expertise of the Board. The Board did not find that SNC exercised fundamental control over the work of the two labourers. It found that Mr. Witty did, but that he was not exercising fundamental control on behalf of SNC. This finding is, in our view, reasonable on the evidence before the Board. We would not give effect to this ground of appeal.
[11] With respect to the second ground of appeal, the applicant says that having erroneously decided that SNC was not the employer, the Board raised the possibility, in the absence of evidence and contrary to the position of either party, that Witty’s numbered company or some other entity may have been the employer. The applicant submits that it is unreasonable for a tribunal to make findings on the basis of “no” evidence. It says that it is even more unreasonable, and breaches the principles of natural justice, to make findings of fact that contradict the positions of the parties. This, says the Union, contributed to the ultimate conclusion that SNC was not the employer.
[12] There are several flaws in this argument. First and foremost, the Board’s comment about the possibility that the numbered company or some other entity was the employer is not a finding of fact and does not invite the scrutiny the applicant asks us to apply to it. Furthermore, this argument is tautological. If the Board raised the possibility that the numbered company was the employer after it decided that SNC was not the employer, then the raising of this possibility could not logically have contributed to the conclusion that SNC was not the employer.
[13] In any event, the only necessary issue for the Board to decide was whether or not SNC was the employer. Once it decided that SNC was not the employer, it was not necessary for the Board to decide who the actual employer was. The mere raising of the possibility that an entity might have been the employer without any evidentiary foundation, and even contrary to the positions of the parties, could have had no impact on the decision. It could not render the Board’s decision unreasonable. The fact is however, that there was some evidence lead in the hearing supporting the conclusion that either David Witty or his company was the employer. The Union was alive to this issue, as evidenced by its cross-examination of Mr. Witty some seven months before the Union presented its evidence. It had ample notice of this issue, and ample time to respond. Indeed, it make detailed submissions respecting this issue. We would not give effect to this ground of appeal.
[14] With respect to the third issue, the Union says that the failure of the Board to identify who the employer was deprived the Union of the ability to obtain certification of the true employer. While a finding about who the employer was might have been useful to the applicant, there was no obligation on the Board to make one. Its failure to do so does not make the Board’s decision unreasonable. The material issue was whether or not SNC was the employer. The Board’s finding that SNC was not the employer was reasonable. There is no merit to this ground of appeal.
[15] With respect to the fourth issue, the applicant says that the Board violated the basic principle of natural justice that the parties are entitled to know the case to be met and to have a fair opportunity to respond. This occurred, it says, because the Board originally identified the issue to be determined as whether the employer was SNC or Vector, but ultimately decided only that the employer was not SNC and might have been some other entity. This argument is also without merit. To succeed in this proceeding, the applicant had to establish that SNC was the employer. The Union could never have been in doubt about this. While it might have helped SNC’s case to succeed in establishing that the employer was Vector, neither party had to establish who the true employer was if it was not SNC, and neither party could have been in doubt about this. The Union knew precisely the case it had to meet. It claimed that SNC was the employer and SNC denied it. The Union failed to make its case.
[16] For all of these reasons, the application is dismissed.
BROWN R.S.J.
COSTS
[17] Costs fixed at $10,000.00, inclusive of disbursements and HST to be paid by the applicant to the respondent SNC.
DAMBROT J.
BROWN R.S.J.
HOY J.
Date of Reasons for Judgment: October 14, 2011
Date of Release: November 14, 2011
CITATION: Labourers Int’l Union of North America v. SNC-Lavalin Inc., 2011 ONSC 6125
DIVISIONAL COURT FILE NO.: 482/10
DATE: 20111014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROWN R.S.J., DAMBROT AND HOY JJ.
BETWEEN:
LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL
Applicant
– and –
SNC-LAVALIN INC., SNC-LAVALIN GROUP INC. AND SNC-LAVALIN POWER ONTARIO INC. AND ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 14, 2011
Date of Release: November 14, 2011