LBM Construction Specialties Inc. v. Ontario Labour Relations Board

CITATION: LBM Construction Specialties Inc. v. Ontario Labour Relations Board, 2016 ONSC 1927

DIVISIONAL COURT FILE NO.: 353/15
DATE: 20160317

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

ASTON, SWINTON AND PATTILLO JJ.

BETWEEN:

LBM CONSTRUCTION SPECIALTIES INC.
Applicant

– and –

ONTARIO LABOUR RELATIONS BOARD and ALLIED CONSTRUCTION EMPLOYEES LOCAL 1030, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Respondents

COUNSEL:
Susan L. Crawford, for the Applicant
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
Douglas J. Wray, for the Respondent, Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America

HEARD at Toronto: March 17, 2016

ORAL REASONS FOR JUDGMENT

SWINTON J. (ORALLY)

[1] The applicant seeks judicial review of a decision of the Ontario Labour Relations Board (the “Board”) certifying the respondent union on April 22, 2014, as well as its decision of June 24, 2015 refusing reconsideration.

[2] The applicant argues that the Board’s finding that the union delivered its application for certification in accordance with the Board’s rules was unreasonable, as well as its refusal to exercise its discretion to receive the applicant’s response. The applicant also argues that it was denied procedural fairness because the Board failed to comply with its obligation in Information Bulletin No. 6 to contact the applicant by telephone to inform it that an application for certification had been made.

Procedural Fairness

[3] Counsel for the applicant conceded that the issue of procedural fairness was not raised before the Board in the reconsideration hearing or any of its written material before the Board.

[4] In my view, this is fatal to the argument. Whether or not the Board complied with the Information Bulletin requires an evidentiary finding. The union and the Board were never alerted to this issue, and it is too late to raise this for the first time on judicial review.

The Reasonableness of the Decision

[5] While there is no question that the applicant did not receive the union materials before the certification application was considered, the Board concluded, on the evidence before it, that the material had been hand delivered within the meaning of the Board’s rules to a previous business address that had not been changed by the applicant in Ontario government records and also provided on an old business card in the union’s possession.

[6] The Board’s decision turns on an assessment of the evidence and the application of the Board’s jurisprudence. The applicant has not identified any misapprehension of the evidence. The Board considered the evidence relating to delivery and concluded that there was no ambiguity with respect to the location of the applicant’s business premises that required the union to make further inquiries. That conclusion was one the Board member was entitled to make, and it falls within a range of reasonable outcomes.

[7] Similarly, the Board’s refusal to exercise its discretion to set aside the certification decision was reasonable, given the Board’s finding of irreparable prejudice to the union if the certification decision was set aside (see para. 74 of the Board reasons).

[8] Accordingly, the application for judicial review is dismissed.

ASTON J.

COSTS

[9] I have endorsed the back of the Application Record, “This application is dismissed for oral reasons of Swinton J. on behalf of the panel. Applicant to pay costs to the respondent Union fixed at $5,000 all inclusive.”

SWINTON J.

ASTON J.

PATTILLO J.

Date of Reasons for Judgment: March 17, 2016
Date of Release: March 23, 2016

CITATION: LBM Construction Specialties Inc. v. Ontario Labour Relations Board, 2016 ONSC 1927

DIVISIONAL COURT FILE NO.: 353/15
DATE: 20160317

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

ASTON, SWINTON AND PATTILLO JJ.

BETWEEN:

LBM CONSTRUCTION SPECIALTIES INC.
Applicant

– and –

ONTARIO LABOUR RELATIONS BOARD and ALLIED CONSTRUCTION EMPLOYEES LOCAL 1030, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Respondents

ORAL REASONS FOR JUDGMENT

SWINTON J.

Date of Reasons for Judgment: March 17, 2016
Date of Release: March 23, 2016