CITATION: Trisect Construction Corporation v. Labourers’ International Union of North America, 2019 ONSC 1790
DIVISIONAL COURT FILE NO.: 087/18 DATE: 20190319
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, D.L. CORBETT, and M. EDWARDS JJ.
BETWEEN:
TRISECT CONSTRUCTION CORPORATION
Mark D. Contini, for the Applicant
Applicant
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and ONTARIO LABOUR RELATIONS BOARD
Ronald Lebi, for the Respondent Labourers’ International Union of North America
Alexandra Clark, for the Respondent Ontario Labour Relations Board
Respondents
HEARD at Toronto: March 19, 2019
D.L. CORBETT J. (Orally)
[1] The applicant, Trisect, applies for judicial review from a decision of the Ontario Labour Relations Board certifying the respondent Union as bargaining agent for four workers at a construction job site at a hotel in Kitchener. Trisect also seeks to review several rulings made by the Board relating to the scope of the questions Trisect could ask one of its witnesses, Reg Dupuis.
[2] Trisect was general contractor and construction manager of the hotel project. It engaged Performance Abatement Services Corp. (“PASC”) to perform interior demolition work. Difficulties arose with PASC and Trisect became more directly involved in the demolition work. The Union took the position that six demolition workers were Trisect employees and applied for certification as their bargaining agent.
[3] After some preliminary litigation skirmishes, the issue on the application was distilled as to whether four specific persons on the job site were employed by Trisect as of the filing date of the certification application.
[4] Trisect’s position was that none of the four persons were employed by Trisect. During the course of Trisect’s examination-in-chief of its site superintendent, Reg Dupuis, Trisect sought to ask Mr. Dupuis about his relationship with other on-site workers (not the four were the subject matter of the Union’s certification application).
[5] The question that was posed was as follows:
Q.: Leaving aside Denis Royals, was there any significant difference between your relationship at the Project with the four employees that the Union is seeking to add to Schedule “A” and the other 13 workers who were paid by Performance and who signed-in on the Sign-In sheet and wrote “Performance” under the heading “Company”?
The Union objected to this question. The Board, in an oral ruling, found the question to be irrelevant to the issues before it and disallowed the line of questioning, a decision it upheld in a subsequent written reconsideration decision.
[6] Trisect says this decision was unfair. The Union argues that it was reasonable. This is the focus of the judicial review before us.
Jurisdiction and Standard of Review
[7] This Court has jurisdiction for this application pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act. The parties agree that the standard of review of the impugned decision is reasonableness: Dunsmuir v. New Brunswick (2008) 2008 SCC 9, 291 DLR 4th 577 (SCC).
Argument
[8] Trisect makes three arguments before us:
(1) The evidence of Mr. Dupuis’ dealings with on-site workers was excluded unreasonably, and this exclusion had a material effect on the proceedings;
(2) The ruling was based unreasonably on the absence of a pleading in the alternative that if Trisect employed the four workers, there were about 14 workers in the same position as the four subject persons of the application; and
(3) The unreasonable rulings were so material to the overall result that Trisect was denied a fair hearing.
[9] Trisect expressly acknowledged that it was not pursuing the fourth argument set out in its factum, that the Board’s ultimate decision was unreasonable that Trisect was the employer and the Union should be certified as bargaining agent for its construction workers. This concession was reasonable. The Board’s decision on the merits was fact and credibility based and on its face is a reasonable decision.
[10] For the reasons that follow, the application for judicial review is dismissed.
Issue #1
[11] We do not accept that the impugned line of questioning was disallowed unreasonably. The Board’s reasoning is captured well in its written reconsideration ruling on this point at paras. 4 and 5, which I quote as follows:
Counsel for the applicant objected to the final question posed by counsel for Trisect, on the basis that the information sought was not arguably relevant. Counsel for the union queried whether Trisect was now inappropriately attempting to add persons to the list of employees. Counsel for Trisect replied that that was not his aim. He noted that the union had limited itself to adding four individuals to the list, but that there appeared to be a far greater number of construction labourers working at the Project. In fact, in its submission of April 4, 2016, Trisect had noted that there were 14 construction labourers engaged by PASC at the Project, over and above the four identified by the union. Counsel for Trisect wished to explore with the witness whether, as far as the witness was concerned, there was any difference in kind between the union’s four additions to the list and the other thirteen individuals whose names appeared on the Site Sign-In Sheet.
I ruled in favour of the applicant. I observed that I did not see the arguable relevance of Mr. Dupuis’s answer in light of the way that Trisect had framed its case. Trisect’s position in this matter is that there were no employees in the bargaining unit because the individuals whom the applicant seeks to represent are employed by PASC, not Trisect. Trisect did not take an alternative position that, should the Board find that Trisect was the employer of the four individuals in question, then it was also the employer of all the other remaining individuals engaged by PASC who were working at the Project on the date of application.
The Board concluded, that there was no issue before it about the status of the 14 other workers. Mr. Dupuis’ view of his relations with these 14 people was therefore not relevant.
[12] Trisect argues that this was unfair because the Union cross-examined Mr. Dupuis on voice recordings of conversations between him and some of the 14 other workers. These recordings were relied on by the Board in finding Mr. Dupuis was directing them on the job site (see the Merits Decision, paras. 94 – 101). Not only was this line of inquiry relevant, argues Trisect, but it was pursued by the Union and relied on by the Board in its certification ruling.
[13] We do not accept this argument. The Board found that this line of cross-examination could be relevant to the status of the four persons in dispute - the only issue it had to decide (see Reconsideration Decision, para. 10).
[14] We also do not accept that the Board made a finding that Mr. Dupuis’ relations with the other 14 workers made them employees in the same way as the four workers who were the subjects of the application. This is not the use made of this evidence by the Board.
[15] Paragraphs 90 and 91 of the Merits Decision introduced this section of the reasons. They read:
In summary, I reject Trisect’s submissions concerning the credibility of the union’s witnesses. Their evidence is generally reliable.
What of the credibility of Dupuis and Royal?
[16] Paragraph 100 concludes this section of the Merits Decision. The final two sentences of para. 100 read as follows:
It is not possible to listen to those recordings and conclude otherwise. As a result, where Dupuis’ testimony conflicts with that of the union’s witnesses, I prefer their evidence.
[17] The Board used the Union’s cross-examination on the voice recordings of Mr. Dupuis to decide credibility. It decided the merits of the certification motion on the basis of the evidence it accepted, preferring the Union’s evidence to that of Mr. Dupuis on the basis of credibility findings.
Issue #2
[18] Trisect argues that the Board erred in finding that Trisect had to plead in the alternative a challenge to the size of the bargaining unit if it wished to pursue the impugned line of questioning. We do not accept this argument. First, that was not the Board’s ruling. As quoted above, when the impugned question was asked, and objection was taken, Trisect expressly stated that it was not raising an issue about the size of the bargaining unit. The Board was entitled to proceed on the basis of Trisect’s statement in this regard. Thus Trisect expressly confirmed to the Board at the time that this was not an issue it was raising. It cannot raise this issue for the first time at a judicial review before us, and that is what is trying to do.
[19] If Trisect had told the Board, at the time the objection was raised, that it did wish to pursue an alternative issue about the size of the bargaining unit, then the Board would have had to decide whether to permit that, given the history of the proceeding. The Board did not make that ruling however because it was not asked to.
[20] Given this history, there is no issue here: the Board decided the objection on the basis of the issues, as framed and confirmed by the parties, at the time of the objection.
[21] We would add that we do not see merit in the argument that Trisect could pursue an alternative theory or alternate theory without having pleaded it or otherwise having raised that alternative theory in advance or without obtaining a ruling from the Board. As argued by counsel for the Ontario Labour Relations Board, the Ontario Labour Relations Act sets out a process for identifying who the parties say are the persons within the proposed bargaining unit (see Ontario Labour Relations Act, s. 128.1(3) and (4)). This is an important aspect of managing the process. We do not need to rule on whether Trisect should have been permitted to pursue this issue at the hearing, because it did not ask to do so. We wish to be clear, however, that such a decision would be within the Board’s discretion.
[22] The Board’s ruling and reconsideration decision are reasonable. It follows, therefore, that they were not unfair to Trisect, and so the third point raised in this judicial review does not arise.
[23] For these reasons, the application for judicial review is dismissed.
SACHS J.
[24] I have endorsed the back of the Application Record of the Applicant Trisect Construction Corporation as follows: “This application is dismissed for reasons given orally Corbett J. As agreed by the parties, Trisect shall pay the Respondent Union its costs of this application fixed in the amount of $5,000, all inclusive.”
___________________________ D.L. CORBETT J.
I agree
SACHS J.
I agree
M. EDWARDS J.
Date of Reasons for Judgment: March 19, 2019
Date of Release: March 21, 2019
CITATION: Trisect Construction Corporation v. Labourers’ International Union of North America, 2019 ONSC 1790
DIVISIONAL COURT FILE NO.: 087/18 DATE: 20190319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, D.L. CORBETT, and M. EDWARDS JJ.
BETWEEN:
TRISECT CONSTRUCTION CORPORATION
Applicant
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J.
Date of Reasons for Judgment: March 19, 2019
Date of Release: March 21, 2019