CITATION: Bur-Met Contracting Ltd. et al v. Carpenters District Council et al, 2013 ONSC 375
COURT FILE NO.: DC-12-010
DATE: 2013-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bur-Met Contracting Ltd., Bur-Met Northern Ltd., CSW Construction Ltd., Overall Plastering Ltd., Woodcrest Construction Limited
Fawzia Saeed Cockar, for the Applicant
Applicants
- and -
Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669, Ontario Labour Relations Board, Attorney General of Ontario and the Attorney General of Canada
Melissa Kronick, for the Respondent, Capenters District Council and United Brotherhood of Carpenters and Joiners of America, Local 1669
and
Respondents
Leonard Marvy for the Respondent, Ontario Labour Relations Board
HEARD: January 14, 2013, in Thunder Bay, Ontario
McCartney J.
Decision
[1] This is a motion for an interim order to stay the decision of the Ontario Labour Relations Board (OLRB) dated September 6, 2012. The decision was the result of an Application by the Respondents the Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669 (the Carpenters Union) against the Applicants in the present motion (Bur-met). The Board made the following finding:
a) declares, pursuant to subsection 1(14) of the Act, that Bur-Met Contracting Ltd., Bur-Met Northern Ltd., CWS Construction Ltd., Overall Plastering Ltd., and Woodcrest Construction Limited are one employer for the purposes of the Act; and
b) declares that Bur-Met Contracting Ltd., Bur-Met Northern Ltd., CWS Construction Ltd., Overall Plastering Ltd., and Woodcrest Construction Limited are bound to the Carpenters’ Provincial ICI Agreement, to the Non-ICI, and to the EPSCA Agreement.
[2] By Notice of Application dated October 1, 2012, the Applicants herein (Bur-Met) commence proceedings for judicial review of the OLRB’s September 6, 2012 decision, along with the companion decision of August 9, 2012. Three similar Applications which resulted from the September 6, 2012 decision are set for hearing before the OLRB on Friday January 18, 2013. Consequently, Bur-Met wishes to stay the decision of September 6, 2012 pending the judicial review.
[3] There is a three part conjunctive test which must be satisfied by the moving party before an interim stay can be granted. That test is as follows:
A strong prima facie case for review on the merits of the Application for judicial review. The standard of review in such a review being reasonableness.
The Applicant would suffer irreparable harm if the stay is not granted.
The balance of convenience favours the granting of the stay.
See Sobeys Inc. v. U.F.C.W. Local 1000a 1993 8659 (ON SC), [1993] 12 O.R. (3d) 157
See Dunsmuir v. New Brunswick [2008] S.C.C. 9
A Strong Prima Facie Case for Review
[4] Even though Bur-Met did not provide a factum on the motion, it can be gleamed from the draft factum filed on the judicial review, and from submissions by counsel, that lack of procedural fairness was the main complaint of the decision of the OLRB because:
i. Sixty nine day Notice of Hearing is not adequate
ii. The Board improperly refused an adjournment request – and refused to hold a hearing in Thunder Bay.
iii. It is alleged that the Board exceeded is jurisdiction by ordering production of numerous documents without considering their relevancy
iv. Section 1(5) and 69(13) of the Ontario Labour Relations Act are reverse onus provisions and thus unconstitutional.
[5] Regarding (i.) above sixty nine days would seem to me to be adequate notice, at least to set a date to commence a hearing.
[6] Regarding (ii.) above Bur-Met’s position does not appear to be correct. The whole matter was dealt with at an earlier hearing on August 15, 2012. The decision on that date, a portion of which is repeated in the September 6, 2012 decision would indicate that as long as the hearings commenced on the first fixed date i.e. August 21, 2012, then thereafter, not only would consideration be given to continuing the hearings in Thunder Bay, but the Carpenters Union would agree to this. Furthermore, the OLRB indicated that Bur-Met was still at liberty to give reasons why the hearings could not start in Toronto on August 21 – but since there was no further communication, the matter proceeded in Toronto on August 21, with no one appearing for Bur-Met. I fail to see how under these circumstances one would conclude any procedural unfairness.
[7] Regarding (iii.) above, the OLRB decision of July 27, 2012 would seem to explain what happened. On that date the OLRB dealt with a request from the Carpenters Union for production – and the refusal by Bur-Met's counsel to produce any documents. The OLRB thereupon made an order that Bur-Met explain why the demanded productions were inappropriate having regard to the issues in the case by August 2, 2012. When no response was received, the Board on August 9, 2012 ordered the requested documents be made available to the Carpenters Union in Thunder Bay by August 16, 2012. Apparently no documents were ever produced. Since the Board had ordered Bur-Met to produce certain documents or explain why they should not, and having received no response whatsoever, Bur-Met was in no position to complain that it was not given the opportunity to set out its position on production – nor to refuse to deliver any production based on relevancy.
[8] Finally, with respect to (iv.) above Bur-Met states that section 1(5) and section 69(13) of the Ontario Labour Relations Act (the basis for the production order) are unconstitutional since they set up a reverse onus requiring businesses, when they are under common control – or when a business bound by a collective agreement sells, to adduce facts at the hearing material to the allegation. However, as was pointed out these sections deal with an obligation to produce evidence not a reverse legal onus, and thus should not be considered unconstitutional.
[9] For all of the above reasons, I find that the Respondent Bur-Met has not established a strong prima facie case for review.
[10] Even though my finding that Bur-Met has failed to establish a strong prima facie case disposes of the motion, I will deal briefly with the other 2 parts of the test.
Irreparable Harm
[11] The second part of the test states that the applicant must establish that irreparable harm i.e. harm that cannot be compensated for in damages would occur if relief were not granted. There is not sufficient evidence before me to be able to conclude irreparable harm if the relief were refused.
Balance of Convenience
[12] In this third part of the test, the court is to consider which party would suffer the greater harm from the granting or refusal of the order. Since it appears clear that other applications are presently before the Board based on the September 6, 2012 ruling, the results of which could clearly negatively affect Bur-Met, and since nothing further can happen to the Carpenters Union until the results of the judicial review are known, the balance of convenience here seems to be in favour of Bur-Met.
[13] For all of the above reasons, the motion is dismissed.
Costs
[14] Carpenters Union has asked for costs in the amount of $7,500.00. While I feel they are entitled to costs herein the amount requested is excessive. Costs are fixed at $3,500.00 all inclusive to be paid by the Applicants to the Carpenters Union.
“Original Signed by”
The Hon. Mr. Justice J. F. McCartney
Released: January 16, 2013
CITATION: Bur-Met Contracting Ltd. et al v. Carpenters District Council et al, 2013 ONSC 375
COURT FILE NO.: DC-12-0010-00
DATE: 2013-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bur-Met Contracting Ltd., Bur-Met Northern Ltd., CSW Construction Ltd., Overall Plastering Ltd., Woodcrest Construction Limited
Applicant
- and –
Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669, Ontario Labour Relations Board, Attorney General of Ontario and the Attorney General of Canada
Respondents
DECISION
McCartney J.
Released: January 16, 2013
/mrm