CITATION: Metropolitan Toronto Apartment Builders Assn. v. Labourers’ International Union of North America, 2014 ONSC 5775
DIVISIONAL COURT FILE NO.: 52/14
DATE: 20141002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND RAMSAY JJ.
BETWEEN:
METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION (“MTABA”), DURHAM RESIDENTIAL CONSTRUCTION LABOUR BUREAU (“DRCLB”) and TORONTO RESIDENTIAL CONSTRUCTION LABOUR BUREAU (“TRCLB”) (collectively hereinafter referred to as “the Builders”)
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 (the “Union”)
Respondent
Susan L. Crawford and David M. Chondon, for the Applicants
Chris G. Paliare and Andrew K. Lokan, for the Respondent, LIUNA, Local 183
HEARD at Toronto: October 2, 2014
SWINTON J. (orally)
[1] The applicants are three builders associations who are in a collective bargaining relationship with the respondent union. These associations consist of construction companies bound by collective agreements with the union.
[2] The applicants seek judicial review of an interim award dated December 5, 2013 rendered by an interest arbitrator. The arbitrator had been appointed by the parties to settle the terms of renewal of three collective agreements in the residential construction sector pursuant to a Letter of Understanding (“LOU”) in the parties’ expired collective agreements.
[3] The LOU contemplates an expedited arbitration process, as it requires the arbitrator to render an award containing the terms of a new collective agreement within seven days after a hearing is completed. The arbitrator is given broad jurisdiction by paragraph. 5.
[4] The applicants sought to argue before the arbitrator that certain disputed provisions in the expired collective agreements (the subcontracting and cross-over clauses and certain related Letters of Understanding), contravene sections 45, 77, 79 and 90.1 of the Competition Act, R.S.C. 1985, c. C-34, and so they should not be included in the collective agreements. Those sections of the Act deal with conspiracies, agreements or arrangements between competitors (s. 45), exclusive dealing, tied selling and market restrictions (s. 77), abuse of dominant position (s. 79) and agreements or arrangements that prevent or lessen competition substantially (s. 90.1).
[5] The arbitrator concluded that he had jurisdiction to interpret and apply provisions of the Competition Act in the arbitration proceeding to the extent that the provisions were relevant to the matters before him. However, he exercised what he considered to be his discretion not to determine the competition law issues. He did so because “the essential nature of the dispute” engaged competition law issues, not labour relations, and the dispute was better determined by the Competition Tribunal or the courts. He observed that he had no jurisdiction to find the disputed provisions of the collective agreement illegal until a finding by the Competition Tribunal that the conduct was contrary to Part VIII of the Act (that is, the allegations of a contravention of sections 77, 79 and 90.1). Morever, the expertise to deal with the underlying issues of market definition and market effects and the necessary expert economic evidence is found in the Competition Tribunal, rather than among labour arbitrators. The arbitrator also expressed reluctance to engage in the interpretation of s. 90.1 when the Tribunal had yet to do so, and he concluded that the procedure under the legislation would be more efficacious in protecting the interests of other potentially affected parties. In his view, the processes under the Competition Act were a “better fit” for determining the Part VIII issues.
[6] While he understood that these arguments did not apply to the criminal conspiracy provision in s. 45, he concluded that it made no sense to sever consideration of s. 45 from the rest of the case.
[7] The applicants do not take issue with the decision of the arbitrator on his jurisdiction to deal with issues under the Competition Act. However, they argue that he erred in holding that he had discretion to defer the competition law issues to the Tribunal and courts, and that he “abdicated his responsibility” in not dealing with the merits of these issues.
[8] I agree with the union’s submission that the nature of the question under review is the arbitrator’s exercise of discretion. Questions concerning the exercise of discretion are subject to judicial review on a standard of reasonableness, not correctness as the applicants submit (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53). This is not a question regarding the jurisdictional lines between competing and specialized tribunals that attracts a standard of correctness in accordance with para. 61 of Dunsmuir.
[9] In my view, the arbitrator’s decision was a reasonable one given the context in which he was operating.
[10] The arbitrator reasonably concluded that he had the discretion to defer the competition law issues to the Tribunal or the courts. Paragraph 5 of the LOU gave him a broad jurisdiction to decide the issues necessary to award new collective agreements. Nothing in the LOU required him to decide the issue whether an existing provision is unlawful.
[11] The arbitrator’s decision to defer these issues for consideration by the Tribunal or the courts was also reasonable. First, only the Competition Tribunal had the economic expertise and the jurisdiction to determine the legality of conduct covered by Part VIII of the Competition Act. Second, a decision applying s. 45 of the Act would have ramifications beyond the parties to the arbitration. Third, if the applicants want a consideration of the legality of the disputed provisions in the context of the entire Competition Act, as apparently they do, it was reasonable to expect them to employ the procedures available through the Competition Act and to seek a determination before the one body that can determine all the issues. Fourth, the arbitrator was appointed to determine the terms of new collective agreements and to do so in an expedited process. The issues raised by the applicants would have greatly complicated and prolonged the process of reaching a collective agreement, which this application amply demonstrates, and this would not be fair to the employees nor in the interests of good labour relations.
[12] For these reasons, the application for judicial review is dismissed.
COSTS
[13] I have endorsed the back of the Application Record, “This application is dismissed for oral reasons delivered today. Given the number of issues raised and the complexity of the matter, costs to the Union are fixed at $25,000 all inclusive.”
SWINTON J.
NORDHEIMER J.
RAMSAY J.
Date of Reasons for Judgment: October 2, 2014
Date of Release: October 7, 2014
CITATION: Metropolitan Toronto Apartment Builders Assn. v. Labourers’ International Union of North America, 2014 ONSC 5775
DIVISIONAL COURT FILE NO.: 52/14
DATE: 20141002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND RAMSAY JJ.
BETWEEN:
METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION (“MTABA”), DURHAM RESIDENTIAL CONSTRUCTION LABOUR BUREAU (“DRCLB”) and TORONTO RESIDENTIAL CONSTRUCTION LABOUR BUREAU (“TRCLB”) (collectively hereinafter referred to as “the Builders”)
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 (the “Union”)
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 2, 2014
Date of Release: October 7, 2014