CITATION: Kuehne + Nagel Ltd. v. Unifor, 2019 ONSC 6779
DIVISIONAL COURT FILE NO.: 392/19
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, DUCHARME and GOMERY JJ.
BETWEEN:
KUEHNE + NAGEL LTD.
Applicant
– and –
UNIFOR and ONTARIO LABOUR RELATIONS BOARD
Respondents
Richard J. Nixon and Duncan Burns-Shillington for the Applicant
Anthony Dale, for the Respondent, Unifor
Aaron Hart, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: November 22, 2019
GOMERY J. (Orally)
[1] The applicant Kuehne + Nagel Ltd. (K+N) seeks judicial review of two decisions by the Ontario Labour Relations Board (the “Board’). In the first decision on February 8, 2019, the Board dismissed K+N’s objection to certification of the respondent Unifor as the bargaining agent for employees at K+N’s distribution centre in Mississauga. In its second decision on April 8, 2019, the Board denied K+N’s request for reconsideration.
[2] K+N objected to certification under s. 15 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “LRA”). Section 15 provides that the Board “shall not certify a trade union … if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms”. K+N alleged that Unifor discriminated against its own employees on the basis of age in its own constitution and in collective agreements it reached on behalf of employees in other workplaces.
[3] The Board held that, even if the facts alleged by K+N in its objection were true, they did not engage s. 15 of the LRA. It accordingly dismissed the objection.
[4] In its application to this court, K+N contends that the Board’s decisions should be quashed because they were incorrect or unreasonable and procedurally unfair.
[5] Having reviewed the parties’ written arguments and having heard the oral arguments on behalf of K+N, the Court dismisses the application.
[6] On the procedural fairness issue, K+N’s principal complaint is that the Board did not hold an oral hearing and made its decision in the absence of evidence. We do not accept this argument. As noted by the Board in its reconsideration decision, rule 39.1 of its Rules of Procedure permits it to dismiss an objection without a hearing. In this case, there was no need to hold a hearing because the Board concluded that, even if the facts alleged by K+N were true, its s. 15 objection was unfounded. It therefore would have served no purpose to hold a hearing.
[7] K+N also complains that the Board limited the length of its reply submission. The Board has the power, under the LRA, to make rules about its practice and procedure. There is no indication that the Board failed to respect its own procedures or that they resulted in any unfairness. As noted in the reconsideration decision, K+N did not complain about the page limit for its reply before submitting it, and it was unable to identify any aspect of Unifor’s submissions that it was unable to address as a result of the page limit.
[8] In reviewing the Board’s decision on the merits, the standard of review is reasonableness. Reasonableness is the presumptive standard where a court is reviewing a decision by a specialized tribunal that was interpreting its home statute; Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 51 to 56; Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61, at paras. 39 and 41. The presumption is supported, in this case, by two broad privative clauses in the LRA, often characterized in caselaw as the strongest privative clauses in our law.
[9] In dealing with K+N’s objection, the Board interpreted s. 15 of its home statute, the LRA. It was not, as asserted by K+N, interpreting the Ontario Human Rights Code or the Canadian Charter. Equality rights are in any event closely connected to the Board’s function. As a result, the Board was not determining a question of law of central importance outside the scope of its expertise, as argued by K+N.
[10] K+N argued before the Board, and argues before this Court, that an objection under s. 15 should trigger a wide-ranging inquiry into the union’s practices at large, including any other collective agreement to which they are a party.
[11] The Board held that s. 15 must be interpreted in light of the purpose of the LRA, that is, to protect the right of employees to freely choose a bargaining agent. The discrimination alleged by K+N in its objection was unrelated to membership in the proposed bargaining unit, had not been raised by employees at K+N and indeed, had not been the subject of a discrimination complaint by any other person.
[12] We do not accept K+N’s submission that the Board’s decision is contrary to earlier decisions considering objections to trade union constitutions restricting membership to Canadian or U.S. citizens. They are distinguishable because the employers, in those cases, could be impacted as a result of allegedly discriminatory practices. K+N has no such direct interest here.
[13] We find the Board’s interpretation of s. 15 was reasonable. It applied accepted principles of statutory interpretation by considering the words of the provision in the context of the scheme and purpose of the LRA. It would have been unreasonable for the Board to interpret the literal meaning of the words of s. 15 in isolation, as urged by K+N. We do not agree that the Board’s interpretation is one that the words of the provision are not capable of bearing.
[14] We also agree with the Board’s observations at paras. 30 and following of the reconsideration decision that the interpretation urged by K+N would yield an absurd result and cause undue uncertainty and delay. K+N was effectively asking the Board to find that Unifor was disqualified to represent any employees in any workplace despite the absence of any mechanism in the LRA that would permit such a finding. On the interpretation suggested by K+N, every s. 15 objection would allow the employer to hijack the process to require a full forensic inquiry into all present and past conduct of a union.
[15] No K+N employee raised any allegations of discrimination. As the Board stated at para. 36 of the reconsideration decision: “Human rights matters should be litigated in proceedings that involve all of the relevant parties, where the decision-makers are in a position to order meaningful remedies in the event that discrimination is found”.
[16] The application is accordingly dismissed with costs of $7500 all-inclusive payable by K+N to Unifor.
D.L. CORBETT J.
[17] I have endorsed the Application Record as follows: “The application is dismissed with costs to the respondent Union fixed at $7500, payable by the applicant; no costs to or for the OLRB. Oral reasons given this day by Gomery J.”
Gomery J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Ducharme J.
Date of Oral Judgment Released: November 22, 2019
Date of Release: December 16, 2019
CITATION: Kuehne + Nagel Ltd. v. Unifor, 2019 ONSC 6779
DIVISIONAL COURT FILE NO.: 392/19
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, DUCHARME and GOMERY JJ.
BETWEEN:
KUEHNE + NAGEL LTD.
Applicant
– and –
UNIFOR and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
GOMERY J.
Date of Oral Judgment Released: November 22, 2019
Date of Release: December 16, 2019