CITATION: Labourers’ International Union of North America, Ontario Provincial District Council v. Swaby, 2015 ONSC 2761
DIVISIONAL COURT FILE NO.: 485/13 DATE: 20150427
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
S.F.J. CZUTRIN, HARVISON YOUNG AND GRAY JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL
Applicant
– and –
RUDYARD A. SWABY, ZZEN GROUP OF COMPANIES LIMITED AND ONTARIO LABOUR RELATIONS BOARD
Respondents
L. A. Richmond, for the Applicant
John-Paul Alexandrowicz and Jonathan A. Maier, for the Respondent, Zzen Group of Companies Limited
Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: April 27, 2015
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J. (ORALLY)
[1] This is an application for judicial review of three decisions of the Ontario Labour Relations Board (“the Board”). In 2013, the Board declared that the Labourers’ International Union of North America, Ontario Provincial District Council (“the Union”) no longer represents the employees of Zzen Group of Companies Limited, for whom it had been the bargaining agent with respect to construction labourers and other employees of Zzen.
[2] All three decisions arise out of a construction industry application under s. 63 of the Labour Relations Act, 1995, S.O. 1995. c. 1, Sched. A. The Board rejected the Union’s argument that a hearing should be held in order that the Union’s allegations could be examined. Rather, it held that the application should be dealt with on the basis of the pleadings which it held were not sufficiently particularized so as to require a hearing into allegations of employer interference.
[3] The parties are agreed that the standard of review is reasonableness. Mr. Richmond, for the Union, raises a number of grounds in support of the central submission that the decisions are unreasonable and should be set aside.
[4] The central argument is that the Board failed to give adequate consideration to the effect of an earlier determination in which the Board dismissed an application by Mr. Swaby on the basis of interference by the employer. This decision was rendered by the Board on May 1, 2013 but the application had been initiated on February 12, 2010. The Board made findings that the employer had been complicit in the application by Mr. Swaby in a number of respects.
[5] In its interim decision in this matter dated June 11, 2013, a case review, the Board found that the Union had not provided any specific factual allegations on which the Board could make a finding that the employer was involved in initiating the application. It held that there was no logical connection between the two. The second decision in this matter dated June 19, 2013 confirmed the result of the representation vote that had taken place on May 3, 2013. Reconsideration was denied on September 27, 2013.
[6] The Union asserts that the taint arising from the first decision continues does not magically disappear as of a certain date and gives rise in this case to an inescapable imprint that it was continuing when this application was filed. It therefore submits that the Board acted unreasonably in failing to consider the effect of the taint more seriously. It should have considered whether there was more than onus on the employer and Mr. Swaby to answer the allegation of employer interference and the continuing taint in this sort of application. It should therefore, in the Union’s submission, have held a hearing to determine this matter rather than determining the matter without a hearing as it did and allowing the representation vote to be counted.
[7] The issue can be simply stated, “Was it unreasonable for the Board to say that this had to be treated as a new application and that the Union was required to spell out its allegations with some particularity?” The Union submits that it was irrational for the Board to dismiss the application without an inquiry and asks that the decisions be quashed and that the application be sent back for a hearing by a new panel.
[8] While the Union acknowledges that there is no reverse onus provision that applies, it alleges that the facts of the earlier application were continuing and should have been treated as providing an ongoing taint so as to require a hearing.
[9] We see nothing irrational about the Board’s decision in the circumstances of this case in determining that the pleadings were not sufficient to warrant a further hearing. This is particularly so in a case where the underlying facts in the earlier application arose three years prior to the current application and where the statute does not impose a reverse onus on the employer.
[10] We do not agree that the Board was not alive to the “reality that the Union is likely at an informational disadvantage relative to the opposing parties.”
[11] In our view, the Board was clearly alive to these submissions that were made before it. It was also alive to the fact that the onus of proof is upon the Union. The Board was clearly of the view that a three year gap between the facts giving rise to this case and those giving rise to the earlier application was sufficient so as to require the Union to allege something arising in 2013 with particularity. It found that the Union did not do so. In so finding it began with the expectations of parties at the case review stage emphasizing the requirement that sufficient cogent facts be pleaded. At paragraph 7 of its Reasons, it stated:
The responding parties have not provided any specific factual allegations on which the Board could make a finding that the intervenor was involved in the initiation of this application. What the Board found had occurred in connection with the first application took place prior to that first application having been made, more than three years prior to the applicant having filed this application. There is nothing set out in the responding parties’ submissions that logically connects what the Board found had happened before February 2010 to the conduct of the applicant and the intervenor in April 2013, proximate to the time this application was filed.
[12] The Union submits that the case law supports its position. However, the case law upon which it relies are unfair labour practice cases in which there is a specific reverse onus provision which requires the employer to rebut the allegations against it: Radio Shack, 1979 817 (ON LRB) and Tate Andale Canada Inc., 1993 7913 (ON LRB).
[13] In our view, these conclusions were open to the Board on the record before it. We see nothing irrational or unreasonable in the manner in which the Board dealt with this application. The decision meets the standard of justification, intelligibility and transparency and falls within the range of possible acceptable outcomes: Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, at para. 47.
[14] The application is dismissed.
COSTS
[15] The Application Record is endorsed to read, “For oral reasons given application dismissed. Costs fixed at $7,000 (as agreed) payable by the applicant to the respondent Zzen Group of Companies Limited.”
___________________________ HARVISON YOUNG J.
S. F. J. CZUTRIN
GRAY J.
Date of Reasons for Judgment: April 27, 2015
Date of Release: May 5, 2015
CITATION: Labourers’ International Union of North America, Ontario Provincial District Council v. Swaby, 2015 ONSC 2761
DIVISIONAL COURT FILE NO.: 485/13 DATE: 20150427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.F.J. CZUTRIN, HARVISON YOUNG AND GRAY JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL
Applicant
– and –
RUDYARD A. SWABY, ZZEN GROUP OF COMPANIES LIMITED AND ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: April 27, 2015
Date of Release: May 5, 2015