Ontario Labour Relations Board, 2019 ONSC 1167
DIVISIONAL COURT FILE NO.: 752/18
DATE: 20190219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
AUDIO VISUAL SERVICES (CANADA)
Stephen Shore and Michael Comartin, for the
CORPORATION
Applicant / Moving Party
Applicant / Moving Party
- and -
ONTARIO LABOUR RELATIONS BOARD,
Ronald Lebi and Katherine Ferreira,
And INTERNATIONAL ALLIANCE OF
for IATSE, Loc. 58
THEATRICAL STAGE EMPLOYEES,
MOVING PICTURE TECHNICIANS,
Andrea Bowker, for the OLRB
ARTISTS AND ALLIED CRAFTS OF THE
UNITED STATES, ITS TERRITORIES,
AND CANADA, LOCAL 58
Respondents / Responding Parties
Heard at Toronto: February 1, 2019
DECISION
D.L. Corbett J.
[1] By decision dated October 26, 2018 (the “Order”), the Ontario Labour Relations Board (“OLRB”) certified the respondent (“IATSE, Local 58”) as the exclusive bargaining agent for a group of the applicant’s (“PSAV’s”) employees. PSAV asks this court to stay the Order pending final determination of its application for judicial review.
Test for a Stay Pending Judicial Review
[2] The general test for a stay has three parts:
(a) Is there a serious issue to be tried on the merits?
(b) Would the applicant suffer irreparable harm if the stay is not granted?
(c) Does the balance of convenience favour granting the stay?[^1]
[3] Where, as here, the application involves judicial review of a specialized tribunal, which is reviewable on a standard of deference, the moving party must show a serious issue to be tried that the decision below was unreasonable. This blended standard has led this court to conclude that the moving party must show a strong prima facie case that it will succeed on the judicial review.[^2]
[4] The test is conjunctive: the moving party must satisfy the court of each of the three branches of the test. The overriding principle that underlies the RJR MacDonald test is to preserve a reasonable state of affairs so that justice may be done at the end of the judicial review.
Disposition
[5] For the reasons that follow, PSAV has not shown that it will suffer irreparable harm if the stay is not granted, and thus the motion must be dismissed. Given this conclusion, it is not necessary to consider the first and third branches of the RJR MacDonald test.[^3]
Irreparable Harm
[6] PSAV argues that it will suffer irreparable harm in two respects if the stay is not granted:
(a) it will be forced to choose between pursuing its judicial review application or complying with its obligations under the Ontario Labour Relations Act[^4] to bargain in good faith with the intention of entering into a collective agreement; and
(b) it will be forced to expend resources engaging in collective bargaining that will be unrecoverable if its judicial review application succeeds.
The Obligation to Bargain in Good Faith
[7] PSAV is correct in stating that it is obliged to bargain in good faith with the intention of entering into a collective agreement: this is trite law. PSAV is also correct in stating that its judicial review application is premised on its position that it should not have to bargain with and enter into a collective agreement with IATSE, Local 58. PSAV is not correct when it says that it cannot bargain in good faith while simultaneously pursuing judicial review.
[8] What PSAV must do, as matters now stand, is reserve its rights in the event that it succeeds in the judicial review. If it finds itself in a position where its reservation of rights is imperiled, it may seek directions from the OLRB.
[9] This situation comes up regularly (judicial review of a Board decision on certification). It almost never leads to a stay motion. There are two reasons for this:
(a) It was open to PSAV to try to expedite its judicial review. It could have filed its judicial review application immediately after the Board rendered its decision, and sought direction from the Divisional Court for an early date for the judicial review, and, if thought necessary, case management to support an early date. PSAV did not do this. It proceeded in the ordinary course.[^5] Indeed, by the return of this motion, PSAV had not yet perfected its application. At the return of this motion I obtained a date of June 25, 2019 for hearing of the application (4.5 months hence). PSAV advised that it could perfect the application within ten days of the hearing; it is ordered to do so no later than February 28, 2019.[^6]
(b) In the usual course, good faith collective bargaining is often not concluded prior to return of an application for judicial review of a certification decision. Thus the contingency that underlies the negotiations will usually be removed before the negotiation process concludes.
[10] During oral argument, counsel for IATSE, Local 58, made it clear that his client does not seek to have PSAV abandon its rights to pursue judicial review of the Order as a component of the duty to bargain in good faith. He agreed that any progress the parties make towards a collective agreement pending judicial review will be subject to whatever the court decides on the judicial review. This is surely a matter of common sense.
[11] Nowhere is there a reported case of an employer having its rights to judicial review frustrated by the collective bargaining progress. Nowhere is there authority from the OLRB that an employer must waive its rights to judicial review to discharge its obligation to bargain in good faith. The imagined irreparable harm here is chimerical.
[12] Finally, it is possible that the parties may disagree on what is required by the obligation to bargain in good faith while judicial review is pending (and, indeed, during any subsequent proceedings taken to the Court of Appeal or to the Supreme Court of Canada). The OLRB has original jurisdiction to address those issues. PSAV argued that the Board “doesn’t care” about the Divisional Court or what may happen on a judicial review. If, by that, PSAV meant that the Board is not constantly looking over its shoulder because there is a pending judicial review, then that is as it should be. But that is very different from suggesting that the Board would require the Moving Party to waive its rights to judicial review as an incident of good faith bargaining. There is no authority to support that argument, and if the Board should make such a ruling, it would be open to an affected party to seek review of that decision in this court.
[13] There is some old authority to support PSAV’s argument. About 40 years ago, Lerner J., in Re Dylex Ltd. and Amalgamated Clothing & Textile Workers Union Toronto Joint Board et al., granted a stay, relying on prior authority holding:
As a matter of practice, practitioners in the field of labour law in Ontario have not generally sought to enforce arbitration board decisions while judicial review proceedings are pending ... and for all practical purposes have treated such proceedings as operating to effect a stay of the award. The respondent company relied on the practice in not observing the award and the union knew this.[^7]
[14] A lot of proverbial water has flowed under the jurisprudential bridge since the decision of Lerner J. in 1977 and it is no longer sound authority on this issue. First, expert administrative tribunals are now accorded much more deference in this court than they were in the 1970’s. Second, the test for a stay has changed: American Cyanamid[^8] (from which the test in RJR MacDonald was derived), did not enter Ontario law until two months after the decision of Lerner J. in Re Dylex Ltd.[^9] Third, there is greater appreciation today that administrative decisions are not presumptively contingent pending appeal or judicial review: the obverse side of PSAV’s argument is that the collective rights of its workers have been vindicated by the Order, and delay implementing the Order is a continuing derogation of those rights. The certification process before the Board unfolded over about two years, and during that period the workers did not have the benefit of a collective agreement. Now that a certification order has been made, it is time to start negotiating a collective agreement, and that process should begin with as little further delay as is reasonably possible. And finally, the practice described by Robins J. (as he then was), relied upon by Lerner J. in 1977, is simply not the practice today in 2019.
Unrecoverable Process Costs
[15] PSAV did not emphasize this aspect of its motion during oral argument, and rightly so.
[16] Both sides will incur unrecoverable process costs if negotiations commence and judicial review leads to reversal of the certification decision. This prejudice is mutual and not disproportionate. Only the members of IATSE, Local 58, will suffer prejudice if negotiations are delayed until the end of legal process, and their rights to bargain collectively are ultimately confirmed. This is in no way comparable to cases where an employer will be required to pay unrecoverable funds to employees pending judicial review.[^10]
[17] Mutual prejudice, in terms of unremarkable[^11] process costs, does not constitute “irreparable harm” within the meaning of the test in RJR MacDonald. Otherwise, every certification decision, and a great many other OLRB decisions, would entail irreparable harm, a position that finds no support in current jurisprudence.
Order and Costs
[18] The motion for a stay of the Board’s order is dismissed, with costs from PSAV to IATSE, Local 58 fixed at $5,000, inclusive, payable within 30 days. There shall be no costs for or against the Board. The judicial review shall proceed on June 25, 2019. PSAV shall perfect its application no later than February 28, 2019. Any party may seek case management directions from this court if anything arises that could impact on the application proceeding as scheduled.
D.L. Corbett J.
Released: February 19, 2019
Ontario Labour Relations Board, 2019 ONSC 1167
DIVISIONAL COURT FILE NO.: 752/18
DATE: 20190219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AUDIO VISUAL SERVICES (CANADA) CORPORATION Applicant / Moving Party
- and -
ONTARIO LABOUR RELATIONS BOARD, and IATSE, LOCAL 58 Respondents / Responding Parties
DECISION
D.L. Corbett J.
Released: February 19, 2019
[^1]: RJR MacDonald Inc. v. Canada, [1995] 3 SCR 199.
[^2]: Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1992), 10 OR (3d) 729, paras. 4-5 (Div. Ct.).
[^3]: In argument it was suggested that the court must consider each branch of the test sequentially. I was unable to find any authority to support this contention, which is inconsistent with the conjunctive nature of the test.
[^4]: Labour Relations Act, 1995, SO 1995, c.1, Sched. A.
[^5]: During oral argument I indicated that there was a good chance that the court would not have permitted the parties to “jump the queue” and would not have convened a special panel to hear this application early: for the other reasons given in this decision, the case does not present as having that kind of urgency. However, “jumping” the queue and entering the queue early are two different things: it is merely a matter of administrative case management to schedule a matter on the earliest regularly available date, at an early stage in the case, on effective commitments to filing deadlines from the parties (supported if necessary by case management) to make sure that the parties are ready to proceed on the date scheduled. Approached in this way, if, in November 2018, the moving party had sought a return date for the application, it likely could have been heard, in the ordinary course, in around March or April 2019, rather than at the end of June.
[^6]: Ordinarily a date is not set until the application has been perfected; I provided the parties with the date of June 25th on the basis of PSAV’s assurance that it would perfect the application promptly.
[^7]: Re Dylex Ltd. and Amalgamated Clothing & Textile Workers Union Toronto Joint Board et al. (1977), 17 OR (2d) 448 (HCJ), quoting Int'l Woodworkers of America and Patchogue Plymouth, Hawkesbury Mills (1976), 14 OR (2d) 118 at 121, per Robins J. (as he then was).
[^8]: American Cyanamid v. Ethicon Ltd., [1975] 2 WLR 316.
[^9]: Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. et al. (1977), 17 OR (2d) 505, which was decided in November 1977; Re Dylex Ltd. was decided in September 1977.
[^10]: Windsor Airline Limousine Services v. Ontario Taxi Union CAW Local 1688 (2002), 162 OAC 259 (Div. Ct.). By analogy to civil appeals: orders for the payment of money to the other side are stayed automatically; orders to take other steps (even if they involve expense) are not so stayed.
[^11]: There is nothing in the record to suggest that the process costs involved are in any way out of the ordinary.```