Court File and Parties
CITATION: Bricklayers, Masons Independent Union of Canada, Local 1 v. Prescott Masonry & Restoration Inc., et al. 2019 ONSC 2579
DIVISIONAL COURT FILE NO.: 018/18
DATE: 20190426
CORRECTION DATE: 20190507
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Bricklayers, Masons Independent Union of Canada, Local 1, Applicant
AND:
Prescott Masonry & Restoration Inc., Brick and Allied Craft Union of Canada, Local 2, Masonry Industry Employers Council of Ontario, Labourers’ International Union of North America, Local 183, Masonry Industry Employers Council of Ontario, Masonry Centre and Ontario Labour Relations Board, Respondents
BEFORE: Kiteley J.
COUNSEL: Ronald Lebi, for Bricklayers, Masons Independent Union of Canada, Local 1 Mike McCreary and Steven Bosnick, for Brick and Allied Craft Union of Canada, Local 2, Respondent David Bannon, for the Masonry Industry Employers Council of Ontario, Respondent Michael Fenrick, for the Labourers’ International Union of North America, Local 183 Alexandra Clark, for Ontario Labour Relations Board
HEARD at Toronto: April 8, 2019
Endorsement
[1] The Applicant (“Brick Local 1”) has perfected an Application for Judicial Review of a decision of the Ontario Labour Relations Board (the “Board”). This is a motion by the Applicant for an order confirming that the affidavit of Andrea Bowker sworn on May 17, 2018, is properly included in the record before the court in connection with the hearing of the Application. For the reasons that follow, the motion is dismissed.
Background
[2] This case involves a dispute between rival trade unions in which Brick and Allied Craft Union, Local 2 (“Brick Local 2”) claimed that Brick Local 1 was controlled by Labourers’ International Union of North America, Local 183 (“Local 183”) to such a degree that its collective agreement with Prescott Masonry & Restoration Inc. (“Prescott”) violated the provisions of the Labour Relations Act, 1995 (the “Act”) that govern the Industrial, Commercial and Institutional sector of the construction industry. Specifically, the proceedings under review concerned an application to terminate bargaining rights and an unfair labour practice complaint under section 66 and 96 of the Labour Relations Act. The decision of the Board is dated December 7, 2017.[^1]
[3] After several preliminary decisions, the Board heard testimony from four principal witnesses and a few less significant witnesses. The 47 page decision is structured as follows: Introduction paragraphs 1 - 4; Statutory Context paragraphs 5 – 9; Pleadings paragraphs 10 – 14; Witnesses paragraphs 15 - 22; History of Brick Local 1 paragraphs 23 – 28; Economic Change and the need for Alliances paragraphs 29 - 34; The Cooperation Agreement paragraphs 35 – 40; Masonry Council of Unions of Toronto and Vicinity paragraphs 41 - 49; The 2004-2007 MCUTV collective agreement paragraphs 50 – 52; An amendment to the Cooperation Agreement in 2007 paragraphs 53 – 54; Alterations in 2009 paragraphs 55 – 68; Structure of Brick Local 1 paragraphs 69 – 74; Negotiations paragraphs 75 -78; The MCUTV Collective agreement itself paragraphs 79 – 82; Enforcement of the MCUTV Collective Agreement paragraphs 83 - 94; Referrals paragraphs 95 – 96; Organizing paragraphs 97 – 103; Hiring of Brick Local 1 business representatives paragraph 104; Removal of business representatives/Board members paragraphs 105 – 106; Dues Reconciliation Process paragraphs 107 – 114; Other Matters paragraph 115; Analysis paragraphs 116 – 154; Prescott paragraphs 156 – 158; Conclusion paragraphs 159 - 162; Consequences paragraphs 163 – 181.
[4] The Board issued a final decision that determined, among other things that Local 183 was in control of Brick Local 1 to such an extent and in such manner that it violated s. 162 as indicated in the following excerpt:
I conclude that Prescott, Brick Local 1, Labourers Local 183 and MCAT have entered into an agreement that included entering into a collective agreement as part of that “other arrangement”, the result of which is to place Labourers Local 183, in reality, as the union party that represents bricklayers in the industrial, commercial and institutional sector. Given the Ministerial Designation applicable to Labourers International Union of North America and its affiliates like Labourers Local 183, it may not do so under any circumstances. That is the arrangement to which Prescott made itself a party when it executed the MCUTV collective agreements.
While Labourers Local 183 does engage to some extent in the institutional functioning of Brick Local 1, even in 2009 to the extent of nominating Executive Board members, Brick Local 1 maintains an institutional independence. Mr. Meiorin appears to be correct in his assertion that he had the final word. No doubt he retains sufficient political influence among the members of Brick Local 1 that Labourers Local 183 was not prepared to cross him on that point. When Mr. Pasquale was discharged (after Mr. Rzepiel said that refusal was not an option) the Labourers Union found him a job elsewhere in the Labourers’ organization.
However, all of the primary functions of Brick Local 1, and indeed the primary functions of any union, are all controlled and executed from within the organization of Labourers Local 183. From organizing, bargaining a collective agreement, referrals to employment, the provision of some benefits (health and welfare) enforcement and grievances and the setting of the budget of Brick Local 1 through the allocation of dues, all of the functions of Brick Local 1 are in the control of Labourers Local 183. All that has been left to Brick Local 1 is the ability, to a limited extent, to manage its own household when a dispute breaks out among those who are employees or officers of Brick Local 1.
Cumulatively, these factors all point to a reality whereby Labourers Local 183 has made an arrangement that places it, for all practical and indeed many legal purposes, as the bargaining agent in control of the terms and conditions of the employment of bricklayers and stone masons in the industrial, commercial and institutional sector.
[5] The Board concluded as follows:
For these reasons, the Board sees no labour relations purpose in making any of the declarations sought by BACU Local 2. The Board has a discretion to refrain from making an order under any application made under section 96, and there is no labour relations purpose in doing so here.
Accordingly, in Board File No. 0145-14-R the Board terminates the collective agreement between Prescott and BACU Local 2 as it was signed at a time when Brick Local 1 had bargaining rights for bricklayers and bricklayers’ apprentices. In Board File No. 3440-14-U the Board sees no labour relations purpose in doing more than making the finding that it made at paragraph 159 of this decision.
Application for Judicial Review
[6] The Application for judicial review was started on January 8, 2018 and it sought an order quashing the decision except for the first sentence of paragraph 180. The grounds for the application are as follows. First, at the outset of the proceeding, after having dismissed most of the unfair labour practice complaint filed by Brick Local 2, the Board defined the scope of the case before it, the issue to be decided and the evidence. Despite this, Brick Local 1 alleges that the Board’s decision makes legal and factual findings and determines issues well beyond the scope of the case as the Board itself defined it and thereby denied the Applicant natural justice and procedural fairness. Second, the decision improperly and incorrectly records the evidence and rests on numerous unreasonable findings of fact as well as findings of fact in the absence of evidence and contrary to the evidence. Third, the Board’s analysis of section 162(2) was incorrect and unreasonable. Fourth, the Board’s conclusion that Brick Local 1 and Labourers’ Local 183 entered into an “arrangement” contrary to section 162(2) was unreasonable and incorrect. The Notice of Application indicated that the Applicant intended to rely on the affidavit of Andrea Bowker to be sworn.
Affidavit of Andrea Bowker
[7] The affidavit was sworn on May 17, 2018 at a time when Bowker was an associate lawyer employed by Koskie Minsky LLP. The following is taken from the affidavit:
The Decision inaccurately recited the evidence before the Board. Further, the Decision makes numerous unreasonable findings of fact, as well as findings of fact that were not supported by any evidence, or that were contrary to the evidence before the Board.
Some of the factual issues and/or errors set out in the Decision are trivial or likely the result of typographical errors. Others are more significant. They are all listed below without regard to their importance, in the order that they are found in the decision.
[8] In paragraphs 5 – 72, the Bowker affidavit refers to 46 paragraphs of the decision and in each case includes her evidence as to whether there was any evidence on the point, or whether the conclusion was not supported by any evidence or was contrary to the evidence.
[9] After the application was perfected, an issue arose about reliance on the affidavit and this motion was brought.
Positions of the Parties
[10] During submissions, Mr. Lebi advised, for the first time, that the order he sought was that the court give leave for his client to rely on the Bowker affidavit to challenge only 28 paragraphs of the decision. As indicated in paragraph 161 of the decision, the Board concluded that the “primary functions” were all controlled and executed from above. The Board referred to organizing, bargaining, referrals to employment, benefits, enforcement and grievances, and setting the budget through the allocation of dues. The paragraphs of the Bowker affidavit that Brick Local 1 asks to have before the court on the hearing of the Application for Judicial Review relate to those findings as indicated in paragraph 27 of Mr. Lebi’s factum:
- The affidavit of Andrea Bowker demonstrates that these findings were unreasonable. In particular, the Affidavit demonstrates:
(a) at paras. 13 to 14 and 55 to 58, that the Board’s finding with respect to the control exercised by Local 183 of the setting of the budget of Brick Local 1 was unreasonable, contrary to the evidence, and made in the absence of evidence;
(b) at paragraphs 31 to 40, that the Board’s finding with respect to the control exercised by Local 183 of organizing by Brick Local 1 was unreasonable, contrary to the evidence, and made in the absence of evidence;
(c) at para. 50 to 53, that the Board’s finding with respect to the control exercised by Local 183 of bargaining by Brick Local 1 was unreasonable, contrary to the evidence, and made in the absence of evidence;
(d) at paras. 67 to 69, that the Board’s finding with respect to the control exercised by Local 183 of referrals to employment by Brick Local 1 was unreasonable, contrary to the evidence, and made in the absence of evidence; and
(e) at paras. 25 to 27 and 29 to 30, that the Board’s finding with respect to the control exercised by Local 183 of the provision of benefits enforcement and grievances by Brick Local 1 was unreasonable, contrary to the evidence, and made in the absence of evidence. Emphasis added
[11] Mr. Fenrick supported the position of the Applicant. Mr. Bosnick and Mr. Bannon made submissions in opposition to the motion. Ms. Clarke made submissions on the standard of review in the application for judicial review, pointing out that, consistent with the standard of review of reasonableness, the Board is not required to review every piece of evidence.
Legal Framework
[12] Section 2(3) of the Judicial Review Procedure Act provides that the decision of a tribunal must be based exclusively on the evidence admissible before it and on facts of which the tribunal may take notice. Furthermore, if there is “no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision . . . the court may set aside the decision”.
[13] Counsel referred to prior decisions on the issue of admissibility of evidence in an application for judicial review. In my view, the guiding principle remains the decision in Keeprite[^2] where the Court held that:
- . . . the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.
Analysis
[14] The motion record included a copy of the factum the Applicant served in connection with the hearing of the Application. As counsel for Brick Local 2 pointed out, it appears that the Applicant is not pursuing the first ground asserted in the Notice of Application, namely the breach of the rules of natural justice and lack of procedural fairness. As a result, the sole basis on which to justify the admissibility of the affidavit is that there is a complete absence of evidence on an essential point.
[15] As indicated above in paragraph 27 of the factum, the moving party asserts that the various paragraphs of the Bowker affidavit demonstrate that the Board’s findings were “unreasonable, contrary to the evidence and made in the absence of evidence”. In accordance with Keeprite, the only issue is whether there is a complete absence of evidence on an essential point.
[16] As indicated in paragraph 3 above listing the subject matters covered in the decision, as is apparent from the Bowker affidavit, and as demonstrated by paragraph 20 of the factum on behalf of Brick Local 2, the Board received evidence on the “primary functions” that had been the subject of findings. There clearly was some evidence. Assuming for the moment that there was “no evidence” on an issue relevant to the Board’s findings with respect to the “primary functions”, there is no evidence on this motion that such absence of evidence was on an essential point.
[17] Counsel for the Masonry Industry Employers Council pointed out that Ms. Bowker was the sole counsel representing Brick Local 1. She was responsible for presenting the case, including direct examination and cross-examination while simultaneously attempting to take notes of the proceeding to the best of her ability. I agree that, at its highest, Ms. Bowker’s affidavit can only be said to stand for the proposition that her notes of the evidence differ from the findings of fact and conclusions of the Board. Counsel for the Applicant takes the position that allowing the Bowker affidavit does not necessarily mean other counsel will file affidavits in response. However, given the content of the affidavit, I consider it likely that one or more counsel will swear an affidavit as to what his/her notes indicate the evidence was. I agree with counsel that this affidavit is an example of why the court is reluctant to admit such affidavits on judicial review.
[18] In order to justify the granting of leave to file the Bowker affidavit to the extent summarized in paragraph 27 of the moving party’s factum, the court must be satisfied that this is a “very exceptional” and “rare” circumstance in which the affidavit would demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point. The moving party has failed to meet that test.
Costs
[19] Mr. Lebi and Mr. Bannon agreed to costs in the amount of $2500 subject to success. Ms. Clarke did not seek costs nor did she expect that the Board would be ordered to pay costs. Mr. Fenrick took the same position on behalf of his client.
[20] Mr. Bosnick brought a costs outline that included fees of approximately $7500 (plus HST) and disbursements including HST of approximately $900. If the motion was dismissed, he asked for those partial indemnity costs. Mr. Lebi indicated that he would not critique the amount shown on the costs outline because his would have been similar. However he asked for an opportunity to make written submissions to the effect that generally it was a no costs regime in labour cases or if costs, much less than the costs sought.
[21] I decline to hear further submissions on the issue of costs. As indicated above, the affidavit of Bowker for which leave was sought challenged 46 paragraphs of the decision of the Board. It was only in his submissions that Mr. Lebi, in effect, conceded that half of the affidavit of Bowker was not admissible. As his factum indicates, counsel for Brick Local 2 obviously spent considerable time reviewing the entirety of the Bowker affidavit, comparing the allegations in the affidavit to the corresponding paragraphs of the decision, and providing to the court a detailed analysis. This is a case where the party whose counsel spent such considerable time ought not to be required to pay such fees and disbursements to its counsel. Given Mr. Lebi’s acknowledgement that the time he spent would not be dissimilar to the time Mr. Bosnick spent, I accept the costs outline on a partial indemnity basis.
ORDER TO GO AS FOLLOWS:
[22] The motion for leave to file the affidavit of Bowker sworn May 17, 2018 is dismissed. The affidavit is struck from the Application Record.
[23] The moving party shall pay costs to the Respondent Masonry Industry Employers Council of Ontario in the amount of $2500.00.
[24] The moving party shall pay costs to Brick Local 2 in the amount of $9,219.50 including fees, disbursements and HST.
Original signed by “Kiteley J.”
Kiteley J.
Date: April 26, 2019
Correction date: May 7, 2019
[^1]: 0145-14-R and 3440-14-U [^2]: Keeprite Workers’ Independent Union v. Keeprite Products Ltd., 1980 1877 (ON CA), 29 O.R. (2d) 513 (CA)