Court File and Parties
CITATION: Labourers’ International Union of North America (Local 183) v. Allied Construction Employees (United Brotherhood of Carpenters and Joiners of America (Local 1030)), 2016 ONSC 745
DIVISIONAL COURT FILE NO.: 49/15
DATE: 20160308
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, H. SACHS and PATTILLO JJ.
APPLICATION UNDER the Judicial Review Procedure Act, R.S.O., 1990, c.J. 1, as amended and Rule 68 of the Rules of Civil Procedure; IN THE MATTER OF a decision of the Ontario Labour Relations Board dated November 13, 2014
BETWEEN:
LABOURERS’ INTERNATIONAL UNION of NORTH AMERICA, LOCAL 183 Applicant
– and –
Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America; Toran Carpentry Inc.; Group of Employees (Intervenor) and Ontario Labour Relations Board Respondents
COUNSEL: Paul J.J. Cavalluzzo and Elichai Shaffir, for the Applicant Douglas J. Wray, for the Respondent, Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: January 26, 2016
Reasons for Judgment
H. Sachs J.:
[1] This is an application for judicial review by the Labourers’ International Union of North America, Local 183 (“Labourers”) of a decision of the Ontario Labour Relations Board (the “Board”) certifying the Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America (“Carpenters”) to represent employees at Toran Carpentry Inc. (“Toran”).
[2] On this application, Labourers submits that the Board breached its duty of fairness and the rules of natural justice by denying its production request made in support of its challenge to the displacement application filed by Carpenters. That challenge was based on an assertion that the application was void on account of employer support, an assertion grounded in the admission that Toran had paid legal fees for the Intervenor, the “Group of Employees”, in other pending applications before the Board, including an application to terminate Labourers’ bargaining rights.
[3] Labourers’ allegation in the displacement application was that Toran’s funding arrangement with the Intervenor was ongoing and included funding its intervention in the displacement application. Labourers’ took the position that the displacement application was employer initiated as “Toran has evidently decided that Carpenters are its union of choice”.
[4] To support its assertion, Labourers sought production of documents or particulars about communications between Toran, the Intervenor and Carpenters relating to the “funding agreement” between Toran, the Intervenor and Carpenters and relating “to the payment of the legal fees incurred by the intervening employees in the course of this proceeding.”
[5] In its decision, the Board denied Labourers’ production request, finding that it “was based on no foundation”. It then went on to find that while the payment of legal fees that had been admitted might constitute evidence of employer support in the context of the termination application (which had been made three years ago and to which Carpenters was not a party), it did not constitute evidence of employer support in the context of Carpenters’ certification application. In the result, the Board proceeded to grant Carpenters’ application for certification.
[6] According to Labourers, by denying its production request, the Board deprived it of the opportunity to obtain important evidence that would have supported its case that Carpenters’ application was employer supported. This, in turn, constituted a breach of natural justice.
[7] I disagree. In my view, Labourers has mischaracterized the production issue as one of procedural fairness or natural justice. Properly characterized, the issue is one concerning the exercise of the Board’s discretion under clause 111(2)(b) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “Act”) and its Rules of Procedure. Section 111 of the Act, in part, states:
- (1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon by or under this Act.
(2) Without limiting the generality of subsection (1), the Board has power,
(a) to require any party to furnish particulars before or during a hearing;
(b) to require any party to produce documents or things that may be relevant to a matter before it and to do so before or during a hearing;
[8] Rule 40.6 of the Board’s Rules of Procedure states:
The Board may also require a person to provide any further information, document, or thing that the Board considers may be relevant to a case and to do so before or during a hearing.
[9] In the decision under review, the Board considered whether it should grant a production request and exercised its discretion not to do so. In doing so, it was exercising its statutory and discretionary powers under its governing statute. As the Divisional Court stated in International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 65617 (ON SCDC), 86 O.R. (3d) 508, at para. 58:
…the Supreme Court of Canada has confirmed that absent constitutional limitations, the exercise of powers by a board or tribunal in accordance with the express provisions of its governing statute cannot be attacked as a breach of natural justice: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, [2001] S.C.J. No. 17, at para. 22.
[10] The jurisprudence is clear that discretionary decisions of the Board involving the interpretation and application of its home statute, as well as rules and regulations enacted thereunder, are subject to review on a standard of reasonableness: see, for example, EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801, 123 O.R. (3d) 253.
[11] The reasonableness standard is concerned with whether there is “justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. Under this standard, the question before the reviewing court is not whether it agrees with the decision, as the standard allows for the possibility that there may be more than one reasonable answer to a particular question. A tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: see Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.
[12] A reasonableness review does not require the tribunal to consider and comment upon every issue raised by the parties (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708), nor does it “mean that every element of the reasoning given must independently pass a test for reasonableness” (Ryan, supra, at para. 56). For reviewing courts, the issue is whether the decision, viewed in the context of the record as a whole, is reasonable (Newfoundland Nurses, supra).
[13] In assessing the reasonableness of the Board’s decision, it is important to note that all parties agree that the leading authority on production in the labour relations context is the decision of the Board in Maplehurst Correctional Complex, [2003] OLRB Rep. March/April 242. In that decision, the Board addresses the “arguably relevant” standard for production and makes it clear that it will not order production of documents where the party asking for production is seeking to find out it if it has a case. Citing Jack Bird Plumbing & Heating Ltd. (decision, dated June 5, 2001, unreported, Board File Nos. 3206-00-R and 3886-00-R), the Board, in Maplehurst, endorsed this principle, at para. 8:
Document production is not ordered for the purposes of assisting a party in determining whether it has a case. A party must first establish the foundation for a case.
[14] From its reasons, it is clear that the Board concluded that, through its request for production, Labourers was hoping to determine whether it had a case for asserting that Toran had provided the Intervenor with funding in the displacement application. In the Board’s view, it had not established a foundation for this assertion. Considering the Board’s decision in light of: Labourers’ pleadings, its requests for production, the responses to those requests provided by the other parties and the governing jurisprudence – the decision under review was a reasonable one. Its reasoning is intelligible, justifiable and transparent and the conclusion falls within the range of possible and acceptable outcomes given the facts and the law.
[15] For these reasons, the application is dismissed. As agreed by the parties, Carpenters is entitled to its costs from Labourers, fixed in the amount of $5000.00, all inclusive.
H. SACHS J.
MOLLOY J.
PATTILLO J.
Released: 20160308
CITATION: Labourers’ International Union of North America (Local 183) v. Allied Construction Employers (United Brotherhood of Carpenters and Joiners of America (Local 1030)), 2016 ONSC 745
DIVISIONAL COURT FILE NO.: 49/15
DATE: 20160308
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, H. SACHS and PATTILLO JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION of NORTH AMERICA, LOCAL 183 Applicant
– and –
Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America; Toran Carpentry Inc.; Group of Employees (Intervenor) and Ontario Labour Relations Board Respondents
REASONS FOR JUDGMENT
H. SACHS J.
Released: 20160308