Court File and Parties
CITATION: Bricklayers, Masons Independent Union of Canada, Local 1 v. Prescott Masonry & Restoration Inc., 2019 ONSC 3793
DIVISIONAL COURT FILE NO.: 018/18 DATE: 20190618
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R.S.J. MORAWETZ, SWINTON, and TZIMAS JJ.
BETWEEN:
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, THE MASONRY INDUSTRY EMPLOYERS COUNCIL OF ONTARIO CANADA MASONRY CENTRE, ONTARIO LABOUR RELATIONS BOARD
Respondents
Counsel:
Ronald Lebi, for the Applicant
Steven Bosnick and Michael McCreary for the Respondent, Brick and Allied Craft Union of Canada, Local 2
Michael Fenrick, for the Respondent, LIUNA Local 183
David J. Bannon, for the Respondent, Masonry Industry Employers Council of Ontario
Alexandra Clark, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: June 18, 2019
Oral Reasons for Judgment
BY THE COURT (Orally)
[1] The Applicant, Bricklayers, Masons Independent Union of Canada, Local 1 has brought a motion to set aside the order of Kiteley J. of April 26, 2019 which denied its request to file the Affidavit of Andrea Bowker sworn May 17, 2019 as part of its record in its application for judicial review of a decision of the Ontario Labour Relations Board.
[2] On a motion to vary or set aside under s. 21(5) of the Courts of Justice Act the law is settled. The panel will not as a matter of course engage in a hearing de novo; rather the panel will intervene only if there has been an error of law or palpable and overriding error of fact, see Stamm Investments Ltd. v. Ryan, 2016 ONSC 6293 (Div. Ct.), at para. 10.
[3] Brick 1 argues that the Ontario Court of Appeal decision in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.) should no longer be followed given that a court on judicial review can review for unreasonable findings of fact. It seeks to use the Bowker affidavit to show that the Board’s findings of fact were unreasonable. Brick 1 concedes that this is not a case where the Board made findings of fact in the absence of evidence.
[4] We see no error of law by Kiteley J. She was bound to follow Keeprite which was followed by the Court of Appeal in Windsor Board of Education v. Windsor Womens Teachers’ Association (Ontario) [1991] O.J. 2148 and has been followed by the Divisional Court in a number of cases including 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. IBEW Loc. 626, [2009] O.J. 2011 and most recently in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644. It has also been applied by the Federal Court of Appeal in Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22 at paras. 20 and 23.
[5] Accordingly the motion is dismissed.
R.S.J. MORAWETZ
[6] I have endorsed the Motion Record as follows: “This Motion is dismissed with costs fixed in the amount of $5,000.00 to Brick 2 and $5,000 to Masonry Industry. No costs for or against LIUNA and OLRB.”
___________________________ R.S.J. MORAWETZ
SWINTON J.
TZIMAS J.
Date of Reasons for Judgment: June 18, 2019
Date of Release:
CITATION: Bricklayers, Masons Independent Union of Canada, Local 1 v. Prescott Masonry & Restoration Inc., 2019 ONSC 3793
DIVISIONAL COURT FILE NO.: 018/18 DATE: 20190618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. MORAWETZ, SWINTON, and TZIMAS JJ.
BETWEEN:
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, THE MASONRY INDUSTRY EMPLOYERS COUNCIL OF ONTARIO CANADA MASONRY CENTRE, ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Oral Reasons for Judgment: June 18, 2019
Date of Release: