Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2019 ONSC 3164
CITATION: Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2019 ONSC 3164
DIVISIONAL COURT FILE NO.: 535/18
DATE: 20190523
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THORBURN, D. EDWARDS, and FAVREAU JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
THE DANIELS GROUP INC., and THE BUILDING UNION OF CANADA, and ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Ron Lebi, for the Applicant
Lisa Bolton, for the Respondent The Daniels Group Inc.
Robert Gibson, for the Respondent The Building Union of Canada
Aaron Hart for the Respondent Ontario Labour Relations Board
HEARD at Toronto: May 23, 2019
ORAL REASONS FOR JUDGMENT
D. EDWARDS, J. (Orally)
[1] This is an application for judicial review brought by the Applicant Labourers’ International Union of North America, Local 183 (“LIUNA”) seeking to quash two decisions of the Ontario Labour Review Board (“Board”) dated February 14, 2018 and August 21, 2018. The decisions are in relation to an application for certification filed by LIUNA on April 26, 2016 pursuant to s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“Act”) in which it sought to be certified as the exclusive bargaining agent for a group of construction employees of the Respondent, The Daniels Group Inc. (“Daniels”). In its decision dated February 14, 2018, the Board declined to exercise its discretion to convert LIUNA’s application from a s. 128.1 application to one under s. 8 of the Act and determined that they would not order a vote under s. 128.1. In its decision dated August 21, 2018, the Board determined that the Building Union of Canada (“Building Union”) had not abandoned its bargaining rights and dismissed the Daniels’ Application as untimely.
[2] The Respondents raise a preliminary issue as to whether the application for judicial review is premature as the Applicant did not seek reconsideration by the Board pursuant to s.114(a) of the Act.
[3] The Respondents argue that the issues raised involve conflicting Board decisions on the issue of the nature of the Board’s discretion under s. 128.1 of the Act.
[4] The Applicant claims that there is no conflict, and in any event, it is not the practice to request a re-consideration, unless there is an issue of an alleged breach of procedural fairness or natural justice.
[5] In Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2011 SCC 4, at para. 57., the Supreme Court of Canada held that the failure of the applicant to seek reconsideration of a decision by the Board was not a bar to an application for judicial review, although in some cases, failure to seek reconsideration might be a factor to consider by the court in determining the appropriate relief.
[6] However, in our view the court still retains the discretion to dismiss an application for judicial for review as premature in appropriate circumstances.
[7] As was held in S & T Electrical Contractors Ltd. v. Iron Workers District Council of Ontario, 2017 ONSC 2926, at para.4:
It is well-established that a party must generally exhaust all available remedies before embarking on an application for judicial review. As Gillese J.A. said in Toth Equity LTD vs. Ottawa (City) at paragraph 34:
It is an important principle of the administrative law that, absent exceptional circumstances, a party must exhaust any available adequate alternative remedy within the administrative process before pursuing an application for judicial review.
[8] Section 114(1) of the Act states:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction declaration or ruling.
[9] The Board has developed a practice of granting reconsideration of decisions in limited circumstances, including “where the request raises important policies issues which have not been adequately addressed” as noted in the Board’s reconsideration decision in S. & T. Industrial Inc., [2017] O.L.R.D. 2247, at para. 27 (On. L.R.B.).
[10] In this case, we agree that there are decisions of the Board that appear to be in conflict regarding the nature of the Board’s discretion under s.128.1 and that may raise important policy issues that relate to the interpretation of the Board’s home statute: Interior Drywall Design Inc., 2013 28195 (On. L.R.B.); Penegal Trim, & Supply Ltd., 2013 59905 (On. L.R.B.); Waterloo (Municipality), 2013 76968(On. L.R.B.); Acmar Masonry Inc., 2007 6023; and Quanta Telecom Canada et al., 2018 119125 (On. L.R.B.).
[11] Had a reconsideration been requested, the Board, which is an expert tribunal, would have had the opportunity to address these conflicting decisions on the interpretation of its home statute.
[12] Therefore, in these circumstances we find that reconsideration offers an adequate alternative remedy to the Applicant that should be followed prior to judicial review.
[13] As in the S&T Electrical Contractors Ltd. decision, we see no exceptional circumstances that would warrant the applicant proceeding directly to the Divisional Court.
[14] We note that section 114(1) does not have any timelines. However, Rule 18.3 of the Ontario Labour Relations Board Rules of Procedure provides that “no request for reconsideration will be considered where it is filed more than 20 days after the date of the Board’s decision, except with the permission of the Board.” The Respondents agree that, should the applicant seek reconsideration, they will not raise the issue of timeliness.
[15] We note that the application was brought to the Board in 2016 and we hope, therefore, that the Board will move expeditiously to address the issue of reconsideration.
[16] We therefore dismiss the application for judicial review.
THORBURN J.
[17] I have endorsed the record dismissing the application for judicial review with costs to the responding party in the amount of $3,000.00.
D. EDWARDS J.
I agree
THORBURN J.
I agree
FAVREAU J.
Date of Reasons for Judgment: May 23, 2019
Date of Release: May 28, 2019
CITATION: Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2019 ONSC 3164
DIVISIONAL COURT FILE NO.: 535/18
DATE: 20190523
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THORBURN, D. EDWARDS, and FAVREAU JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
THE DANIELS GROUP INC., and THE BUILDING UNION OF CANADA, and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
D. EDWARDS J.
Date of Reasons for Judgment: May 23, 2019
Date of Release: May 28, 2019