CITATION: United Brotherhood of Carpenters (Local 249) v. Matrix North American Construction Ltd., 2019 ONSC 5647
DIVISIONAL COURT FILE NO.: 51/18
DATE: 20190930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Thorburn, D. Edwards, Favreau JJ.
B E T W E E N :
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 249
Applicant
– and –
MATRIX NORTH AMERICAN CONSTRUCTION LTD., LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL AND LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 AND ONTARIO LABOUR RELATIONS BOARD
Respondents
Douglas J. Wray
for the Applicant
Daryn M. Jeffries and Allison Medjuck
for the Respondent Matrix North American Construction Ltd.
L.A. Richmond and Charlene Wiseman
for the Respondent Labourers International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 183
Andrea Bowker
for the Respondent Ontario Labour Relations Board
HEARD: May 22, 2019
FAVREAU J.:
Overview
[1] The applicant, the United Brotherhood of Carpenters and Joiners of America, Local 249 (the "Carpenters Union") seeks judicial review of a decision dated December 27, 2017 of the Ontario Labour Relations Board. In its decision, the Board confirmed a work assignment made by the respondent Matrix North American Construction Ltd. ("Matrix") to the respondent Labourers' International Union of North America, Local 183 (the "Labourers Union").
[2] The Carpenters Union argues that the Board's finding that economy and efficiency favoured giving the work to the Labourers Union was unreasonable because there was no evidence to support that finding and because the finding was made in a procedurally unfair manner.
[3] For the reasons that follow, the application is dismissed.
Legislative context
[4] The issue that gave rise to the Board's decision is what is referred to as a "jurisdictional dispute", which arises when an employer's work assignment leads to a disagreement between two unions over which union the work should be assigned to.
[5] Section 99 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, gives the Board the authority to resolve jurisdictional disputes.
[6] The Act does not set out any criteria by which jurisdictional disputes are to be resolved. However, the Board has developed the following list of factors for determining jurisdictional disputes:
a. The scope of the collective agreements at issue;
b. Trade agreements that might be relevant;
c. Employer practice;
d. Area practice;
e. Safety, skill and training; and
f. Economy and efficiency.
See, for example, Aecon Construction Group Inc. v. Labourers' International Union of North America, Local 506, 2008 7449 (ON LRB), at para. 3.
[7] The Board has also established that the burden of proof is on the union challenging the work assignment. The challenging union must prove that the work assignment was wrong, and not just that it would have been preferable for the work to be assigned to that union: International Union of Bricklayers and Allied Craftworkers, Local 23 v. Kel-Gor Ltd., 2004, at para. 9. In the event none of the factors listed above favors one union over the other union, the Board generally follows the employer’s choice: Ecodyne Limited v Labourers' International Union of North America, Local 1036, 1997 15496 (ON LRB), at para. 22. However, in recent cases, the Board has found that a composite work assignment is appropriate in some circumstances: Labourers' International Union of North America, Local 183 v United Brotherhood of Carpenters and Joiners of America, 2019 10479 (ON LRB), at paras. 77-78.
[8] Section 99(3) of the Act provides that the Board "is not required to hold a hearing to determine a complaint under this section". Section 99(5) gives the Board the power to make any "final order it considers appropriate after consulting with the parties".
[9] The Board's Rules of Practice and Procedure also address the process to be followed on a jurisdictional dispute.
Background facts
[10] Matrix was the general contractor for a gas-fired power generating plant in Napanee. In performing the work, Matrix was bound by collective agreements with the Labourers Union and the Carpenters Union.
[11] The work on the project started in February 2015. In mid-January 2016, Matrix hired a third party scaffolding company to set up an on-site scaffolding yard. Matrix assigned all the work related to erecting and dismantling the scaffolding to the Carpenters Union. However, Matrix assigned the work of "tending" the scaffolding to the Labourers Union.
[12] The "tending" work included:
a. The bundling of scaffolding in the on-site scaffolding yard; and
b. The delivery of bundled scaffolding using a telehandler to the point of erection.
[13] The Carpenters Union filed a grievance on February 1, 2016, alleging that Matrix should have assigned the bundling and delivery work to its members. The Labourers Union then brought an application to the Board, seeking a determination that Matrix's work assignment was appropriate.
The Board's decision
[14] In its decision dated December 27, 2017, the Board found that there was no basis for interfering with Matrix's decision to assign the disputed work to the Labourers Union.
[15] The Board made the decision based on written consultation briefs prepared by the parties, books of documents, and oral submissions made at a pre-consultation conference held on April 26, 2016.
[16] In its decision, the Board reviewed the six factors listed above for determining jurisdictional disputes, and noted that the parties agreed that all factors were neutral except for two. The Carpenters Union took the position that area practice favoured assigning the work to its members, and the Labourers Union took the position that this was a neutral factor. The Labourers Union took the position that it was favoured by the economy and efficiency factor whereas the Carpenters Union took the position that this was a neutral factor.
[17] The Board disagreed with the Carpenters Union that area practice favoured assigning the work to its members, and found that this factor was neutral. In making this finding, the Board rejected the Carpenters Union's argument that Matrix should be viewed as a "scaffolding-specific specialty contractor" and held that scaffolding-specific examples were not relevant to the assessment of area practice. Once scaffolding-specific examples were eliminated from the assessment of area practice, there were very few examples that supported a finding that area practice favoured the Carpenters Union. The Board found that this factor was therefore neutral.
[18] The Board agreed with the Labourers Union that economy and efficiency favoured assigning the work to its members. Relying on Aecon, the Board made the following finding:
- I am satisfied on the material filed that Matrix, as a general contractor, had members of Labourers deployed at various places and at various tasks at all time on the Project and likely will to its conclusion. This is why it is efficient that it be able to deploy and re-deploy members of Labourers as needed to do the general tending associated with the scaffolding, and that general tending forms the core of the Disputed work.
[19] The Board went on to make the following additional finding in support of its conclusion that economy and efficiency favoured the Labourers union:
- Although no party addressed this directly it appears to me that the bundling and movement of scaffolding material in this case appears to have less to do with scaffolding per se and much more to do with the general movement of material on a construction site, a task that, with exceptions, is usually assigned to members of the Labourers. I say this because the bundling is directed by a CJA L. 249 member employed by the Supplier, that is to say, the exercise of scaffolding expertise for the purposes of selecting the pieces to be bundled is being exercised by a CJA L. 249 member and any and all erection and dismantling tasks are undertaken by CJA L. 249 members.
[20] The Board concluded that, given its finding that all factors were neutral except economy and efficiency, which favoured the Labourers Union, there was no reason to interfere with Matrix's assignment of the disputed work to the Labourers Union.
Positions of the parties and issues on the application
[21] On the application, the Carpenters Union seeks an order in the nature of certiorari quashing the Board's decision and remitting the matter back for a re-hearing before another member of the Board. The applicant does not challenge the Board's finding that area practice is a neutral factor, but, rather, focuses on the finding that economy and efficiency favour the Labourers Union. The Carpenters Union makes the three following arguments in support of the application:
a. There was no evidence to support the Board's finding that economy and efficiency favoured assigning the work to the Labourers Union;
b. Even if there was evidence in support of the Board's finding, there was insufficient evidence and the decision was therefore unreasonable; and
c. The decision was procedurally unfair because the Carpenters Union was not given an opportunity to address the Board's finding, at paragraph 31 of the decision, that the work at issue related to the movement of materials more generally rather than to scaffolding specifically.
[22] The Labourers Union disagrees that the decision was unreasonable or procedurally unfair, and makes the two following preliminary arguments:
a. The application is moot because, even if the Board erred in finding that the factor of economy and efficiency favours assigning the work to the Labourers Union, all factors would then be neutral and Matrix's work assignment would prevail; and
b. The application is premature because the Carpenters Union did not seek a reconsideration of the decision pursuant to section 114(1) of the Labour Relations Act.
[23] Matrix supports the arguments made by the Labourers Union. The Board takes no position on whether the decision was reasonable or procedurally unfair or whether the issues it raises are moot, but supports the Labourers Union's argument that the application is premature.
[24] Given that the preliminary issues would dispose of the application without the need to consider the merits, I first address whether the application is moot or premature, and then address the standard of review and the issues raised by the Carpenters Union.
Preliminary issues raised by the Labourers Union
Whether the application is moot
[25] I do not agree with the Labourers Union that the issues on the application are moot.
[26] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court of Canada held that a case is moot when it no longer presents a "live controversy":
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot…
See also: Payne v. Wilson, [2002] OJ No 256 (C.A.), at paras. 15-17; Tamil Co-operative Homes Inc. v. Arulappah, 2000 5726 (ON CA), at para. 13; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, at paras. 24-25; and Stewart v. Office of the Independent Police Review Director, 2013 ONSC 7907 (Div. Ct.), at paras. 17-19.
[27] As reviewed above, the test developed by the Board for determining jurisdictional disputes requires consideration of six factors. The challenging union has the burden of persuading the Board that the employer’s choice was wrong. Where consideration of the factors does not establish that the employer’s choice was wrong, generally the Board’s practice is to respect the employer’s choice. However, as indicated above, some recent decisions of the Board suggest that, in some cases, it is appropriate for the Board to make a composite work assignment.
[28] In this case, there were only two factors at issue, namely area practice and economy and efficiency. The Board found that area practice is a neutral factor, and the Carpenters Union does not challenge that finding on this application. The Board then found that the factor of economy and efficiency favours the Labourers Union, and this is the only finding the Carpenters Union challenges. The three issues raised by the Carpenters Union on this application are all directed at this finding. The Carpenters Union argues that the evidence on the record did not support the Board’s finding that economy and efficiency favoured assigning the work to the Labourers Union, and that the Board’s finding on this issue was procedurally unfair because the Carpenters Union was not given an opportunity to address the Board’s finding at paragraph 31 of the decision. The Labourers Union argues that this makes the issue moot because, even if the Board’s findings with respect to economy and efficiency were unreasonable or procedurally unfair, the outcome of the Board’s decision would have been to respect Matrix’s decision to assign the work to the Labourers Union.
[29] At first blush, the Labourers Union’s argument is attractive, but, in my view, the issue is not moot as that term is traditionally used by the courts. Mootness refers to a change in circumstances that makes the issue raised academic. This is evident from the passage in Borowski quoted above, where the Supreme Court refers to mootness arising from events that occur after the litigation is commenced that affect the relationship between the parties. Similarly, the cases cited by the Labourers Union referred to above all involved situations where there was a change in circumstances between the parties subsequent to the commencement of the litigation or the launching of an appeal. In this case, there is no change in circumstances. Rather, the Labourers Union’s argument is that, even if the issues raised by the Carpenters Union were wrongly decided by the Board, the Board’s error would not have a material impact on the outcome of the case. This may be a valid argument, but it is not about mootness. In the context of an application for judicial review, this argument may be relevant to consideration of the appropriate remedy, and whether, even if the Court were to accept that the Board’s decision was unreasonable or procedurally unfair, the Court should exercise its discretion not to grant a remedy because doing so would be futile: Stenlund v. Ontario (Minister of Natural Resources and Forestry), 2019 ONSC 4889 (Div. Ct.), para. 68; and Aware Simcoe: Environmental and Social Solutions Inc. v. Corporation of the County of Simcoe, 2015 ONSC 5344 (Div. Ct.), at para. 88.
[30] The Board is highly specialized and in the best position to assess an appropriate remedy. Given the Board’s recent decisions in which the remedy in jurisdictional disputes was a composite crew, in my view, it is not possible to conclude that the Board would inevitably have respected the employer’s choice if it had found that economy and efficiency was a neutral factor.
[31] In any event, given my finding below that the Board’s decision is reasonable and that it is not procedurally unfair, there is no need for this Court to speculate on the remedy the Board would have granted if it had found that all factors were neutral.
Whether the application is premature
[32] The Labourers Union argues that the application is premature because the applicant should have sought a reconsideration of the decision by the Board before making an application for judicial review.
[33] It is well established that judicial review will not be granted where the applicant has failed to exhaust available internal remedies. In such cases, the Court will generally dismiss the application as premature unless there are extraordinary circumstances. The Court of Appeal for Ontario explained the rationale for this principle in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-69:
[68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.
[69] The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:
Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]
[34] In this case, determining whether the application is premature turns on whether the Board’s internal review process is an adequate alternative remedy.
[35] Section 114(1) of the Labour Relations Act gives the Board the power to reconsider its own decisions:
114 (1) 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.
[36] Reconsideration is not a mandatory step in the Board’s proceedings, but rather a discretionary power conferred on the Board.
[37] The Board has developed its own rules and guidelines in relation to reconsiderations. The Board’s rules of procedure require that a request for reconsideration be filed within 20 days of the decision. In addition, Bulletin #19 issued by the Board describes the circumstances where the Board may reconsider its own decision as follows:
Pursuant to Section 114(1) of the Labour Relations Act, the Board may in its discretion reconsider any decision if it considers it advisable to do so. Generally, the Board will not reconsider its decision unless:
a) Where the decision contains an obvious error;
b) Where the request raises important policy issues which have not been adequately addressed;
c) Where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously, and which could, if accepted, make a difference to the decision; and
d) Where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make. (see for example: Audio Visual Services (Canada) Corporation, 2017 85671 (ON LRB))
Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. (See John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096.) If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision.
[38] Notably, the Board’s website cautions that the “Board has historically granted requests for reconsideration in very limited circumstances”.
[39] Therefore, unlike an internal appeal process, the right to reconsideration is not a mandated step in the Board’s process. Rather, while section 114(1) of the Labour Relations Act gives the Board the power to reconsider a decision, it is a discretionary power and it is evident that Board only exercises its discretion in limited circumstances.
[40] In Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] S.C.J. No. 5, at para. 57, the Supreme Court of Canada held that a party is not required to seek reconsideration by the Board prior to bringing an application for judicial review, although there may be circumstances in which it is preferable to do so:
There was also some discussion in this Court about the failure of the appellant to ask for reconsideration. However, even the Board conceded that in the circumstances, reconsideration did not constitute an absolute prerequisite to judicial review. In the present case, it might have been a good tactical move that would perhaps have elicited some information from the Board about its consultation process, but the principles of judicial review did not require the use or exhaustion of this particular remedy. Of course, in some cases, failure to seek reconsideration might be a factor to be weighed by superior courts when determining whether to grant a remedy in an application for judicial review.
[41] Accordingly, while the Labourers Union suggests that a request for reconsideration must be made in relation to all decisions of the Board absent extraordinary circumstances, there is no basis for making such a finding. There may be cases in which it is appropriate to require reconsideration before an application for judicial review is brought; for example, where there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue: Labourers' International Union of North America, Local 183 v. Daniels Group Inc., 2019 ONSC 3164 (Div. Ct.), at paras. 9-10. Similarly, reconsideration may be an adequate alternative remedy where the Board made an error in a step in the administrative decision making process: S. & T. Electrical Contractors Ltd. v. Iron Workers District Council of Ontario, 2017 ONSC 2926 (Div. Ct.), at paras. 3-5. However, given the limited scope for review, there is no basis for finding that parties before the Board should generally request a review by the Board before seeking judicial review.
[42] In this case, in my view, the application is not premature. The issues raised on the application do not engage conflicting decisions on matters of policy that the Board should be given an opportunity to decide. While the applicant does raise an issue of procedural fairness, as addressed below, this does not involve a situation in which the Board failed to follow a mandated step in its decision making process that could have affected the outcome.
[43] Therefore, in my view, this application is not premature.
Issues raised by the applicant
Standard of review
[44] The standard of review applicable to the merits of a decision of the Board on a jurisdictional dispute is reasonableness: Labourers International Union of North America, Local 183 v. Carpenter's District Council of Ontario, 2017 ONSC 6780 (Div. Ct.), at paras. 26-29.
[45] Reasonableness involves consideration of the existence of justification, transparency and intelligibility within the decision-making process, and consideration of whether the decision falls within a range of possible acceptable outcomes that are defensible in respect of the facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.
[46] There is no standard of review on matters of procedural fairness. The issue for the Court is whether the appropriate level of fairness was accorded: Tembec Enterprises Inc. v. United Steelworkers IWA Council 1-1000, 2009 30451 (Div. Ct.), at para. 25.
Whether the decision was reasonable
[47] The applicant argues that the evidence before the Board did not support the finding that economy and efficiency favoured assigning the work to the Labourers Union. Specifically, the applicant takes issue with the Board’s finding at paragraph 30 of the decision that the Labourers Union had its members “deployed at various places and at various tasks at all time on the Project” and that this is why it was “efficient that it be able to deploy and re-deploy members of Labourers as needed to do the general tending associated with the scaffolding”. The applicant argues that there was no evidence to support this finding as it relates to the bundling of scaffolding and that there was insufficient evidence as it relates to the trasnport of scaffolding.
[48] It is not the role of this Court of reweigh the evidence before the Board. A decision may be unreasonable if there was no evidence to support an essential finding; however, this Court will not interfere with a decision of the Board if there is some probative evidence that can logically support the Board’s finding: 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 24643 (Div. Ct.), at paras. 26-29; and Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), at para. 12. Therefore, in order to interfere with the Board’s decision, this Court would have to find that there was no probative evidence that could logically support the Board’s finding that economy and efficiency favoured assigning the work at issue to the Labourers Union.
[49] Based on the record before the Board, in my view, there is no reason to interfere with the Board’s finding that economy and efficiency favoured the Labourers Union in respect of both the movement and the bundling of scaffolding. The record does include evidence that supports the Board’s finding.
[50] First, it is worth noting that, as reviewed above, the Labour Relations Act does not require the Board to hold a hearing for the purpose of deciding a jurisdictional dispute. The Board has developed its own practice, which involves receiving written submissions from the parties and holding a consultation with the parties. Accordingly, the “record” before the Board on a jurisdictional dispute includes the written and oral argument made by the parties.
[51] With respect to the movement of scaffolding, the Carpenters Union concedes that the Labourers Union’s written submissions did provide some support for the Board’s finding that the members of the Labourers Union who were already on the site could move the scaffolding. The written submissions included declarations by two union representatives to the following effect:
The factor of economy and efficiency favours the assignment of the work in dispute to the Labourers’. In particular, the general tending work involving transportation of the bundled scaffolding material using telehandlers to the point of the scaffold build cannot be efficiently performed by members of the Carpenters.
The time spent performing the transportation of scaffolding material varies from day to day, and does not always take up the entirety of the day for some of he labourers who perform this work. Members of the Labourers who perform this work use their telehandlers to transport a variety of materials throughout the day, including but not limited to racks of bundled scaffolding material. Assigning telehandlers to members of the Carpenter to perform this work alone would result in inefficient allocation of machinery on the project, resulting in some or all of these machines going idle for the majority of the day. Conversely, if only one telehandler were assigned to the Carpenters to perform this work, this would result in a significant slow-down and inefficiencies in the delivery of scaffolding material to the point of the scaffold builds, resulting in the Carpenter on Matrix’s scaffold crews sitting idle and waiting for materials for a large portion of the day.
[52] The applicant argues that this is not sufficient. However, this certainly constitutes some evidence in support of the Board’s finding. In any event, as pointed out by the Labourers Union, there was additional information before the Board to support the finding that efficiency and economy favoured assigning the transport of scaffolding to the Labourers’ Union. For example, mark-up meeting minutes, which are referred to at paragraph 21 of the Board’s decision, state that “Labourers members are engaged generally in a number of respects tending other trades on the Project and are already staffed up, so to speak, to do that”. In addition, the record included a declaration from one of Matrix’s representatives that, in his view, “scaffolding can be erected and dismantled more quickly by members of the Carpenters when another trade is responsible for bundling and transporting the scaffolding materials to and from the base of the scaffold erection site”.
[53] With respect to the bundling work, the Carpenters Union argues that there was no evidence to support the Board’s finding. However, the passages from the mark-up meeting minutes and the declaration from the Matrix representative referred to above address both bundling and transportation.
[54] I find that the Board’s decision was reasonable. The applicant had the burden of demonstrating that the employer’s choice was wrong, not just that giving the work to the applicant would have been preferable. The Board’s finding that economy and efficiency favoured the Labourers Union for both bundling and transporting the scaffolding was supported by evidence in the record. It is not this Court’s role to reweigh the evidence or to consider whether it would have been preferable to assign the work to the applicant. The decision falls well within the range of reasonable outcomes.
Whether the decision was procedurally unfair
[55] The applicant argues that the decision was procedurally unfair because the parties were not given an opportunity to make submissions on the Board’s finding, at paragraph 31 of the decision, that the bundling and movement of scaffolding had more to do with the general movement of materials than with which of the unions was responsible for scaffolding work.
[56] There are certainly circumstances in which the failure to give the parties an opportunity to address an issue that forms part of a decision constitutes a breach of procedural fairness. However, there is no basis for making such a finding in this case.
[57] I agree with the Labourers’ Union that paragraph 31 was not necessary to the Board’s conclusion that economy and efficiency favoured the Labourers Union. Paragraph 30 is clearly conclusory in finding that it was more efficient to assign the work to the Labourers Union because its members were already deployed throughout the site at different tasks. Whether the work is properly defined as part of the scaffolding work or not is irrelevant to this determination.
[58] In any event, the Board stated at the beginning of paragraph 31 that no party addressed the issue “directly”, suggesting that it was addressed indirectly. In effect, the Labourers Union did address the issue of whether the bundling and movement of scaffolding forms part of the scaffolding work by making a distinction between “trade tending” and “general tending”, arguing that the movement and bundling of scaffolding were part of “general tending”. While the applicant may not have addressed this issue in its submissions to the Board, it should have been evident that the Board may consider this issue in its reasons, and it did have an opportunity to do so in responding to the Labourers Union’s submissions.
[59] Therefore, there was no breach of procedural fairness in this case.
Conclusion
[60] For the reasons above, the application for judicial review is dismissed.
[61] As agreed between the parties, the Labourers Union is entitled to costs in the amount of $5,000 to be paid by the Carpenters Union, and no costs are to be paid by or to Matrix or the Board.
FAVREAU J.
I agree _______________________________
THORBURN J.
I agree _______________________________
D. EDWARDS J.
RELEASED: September 30, 2019
CITATION: United Brotherhood of Carpenters (Local 249) v. Matrix North American Construction Ltd., 2019 ONSC 5647
DIVISIONAL COURT FILE NO.: 51/18
DATE: 20190930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Thorburn, D. Edwards, Favreau JJ.
B E T W E E N :
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 249
Applicant
– and –
MATRIX NORTH AMERICAN CONSTRUCTION LTD., LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL AND LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 AND ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: September 30, 2019