CITATION: ASL Agrodrain Limited v. International Union of Operating Engineers, 2019 ONSC 7194
DIVISIONAL COURT FILE NO.: 19-DC-2492
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Favreau and Copeland JJ.
BETWEEN:
ASL AGRODRAIN LIMITED
Applicant
– and –
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 AND ONTARIO LABOUR RELATIONS BOARD
Respondents
Andrew J. McCreary and Colin J. Youngman, for the Applicant
Katherine Ferreira, for the International Union of Operating Engineers, Local 793, Respondent
Aaron Hart, for the Ontario Labour Relations Board, Respondent
HEARD at Ottawa: November 21, 2019
Swinton J.
Overview
[1] ASL Agrodrain Limited (the “Employer”) has brought an application for judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated February 12, 2019, as well as a reconsideration decision dated March 22, 2019. The decisions resulted in the certification of the International Union of Operating Engineers, Local 793 (the “Union”) as the bargaining agent for heavy equipment operators employed by the Employer in a particular geographic area.
[2] The Employer argues that it was denied procedural fairness when the Board found that the Employer’s pleadings did not raise a prima facie case with respect to the status of a group of 18 employees. In my view, there was no denial of procedural fairness, and the Board’s decisions were reasonable. Therefore, I would dismiss the application for judicial review.
Background
[3] The Employer is a construction company based in Osgoode, Ontario. On September 6, 2018, the Union brought an application for certification respecting heavy equipment operators employed by the Employer in the construction industry in Ottawa and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sectors.
[4] The application was brought pursuant to s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “Act”), which permits certification without a representation vote. Pursuant to s. 128.1(13), the Board may certify a trade union on the basis of union memberships (known as “card-based certification”) if more than 55 per cent of the bargaining unit employees are union members as of the application date.
[5] The Union and the Employer disagreed about the number of employees in the bargaining unit. The Union estimated there were 49 people in the proposed bargaining unit, while the Employer estimated there were 76 people in the unit. On September 14, 2018, the Board issued an initial order, which stated that these status disputes would be determined in accordance with Information Bulletin No. 9, Resolving Disputes in Certification Applications in the Construction Industry. The Board also directed the Employer to file a statement of its position with respect to the Union’s challenges to names on the list of employees. The Board required the Employer to give reasons for its position and “the basic facts on which it relies.” The Board then said, “The basic facts should include at least where the individual was working and what the responding party asserts the individual was doing.” The Employer was also directed to provide relevant documents, such as payroll records.
[6] The parties exchanged their status submissions. Following a Case Management Hearing on November 21, 2018, 42 active status disputes remained. As well, the Union took issue with the sufficiency of the material facts pleaded by the Employer, arguing that the Employer’s pleading failed to comply with Information Bulletin No. 9 and the Board’s earlier direction concerning status submissions. The parties then agreed to have this preliminary issue determined on the basis of written submissions.
The Board’s Decision of February 12, 2019
[7] The Board dealt with a number of status issues in this Initial Decision, but of significance for the present application for judicial review is the treatment of a group of 18 heavy equipment operators. All the status submissions respecting these individuals were framed in a similar fashion:
Mr. [Name] worked at [jobsite] on the application date. He worked for [x] hours exclusive of breaks. On the application date, he operated a [equipment] to … [work performed]. (Initial Decision at para. 26).
[8] The Board held that the Employer’s pleadings were deficient and failed to raise a prima facie case for the inclusion of the group of 18 in the bargaining unit. The Board cited past cases that set out the standard of pleading required, which was described as follows (Initial Decision at para. 31):
… an employer must properly plead exactly what work tasks it states each individual performed on the application filing date did, for how long each of those work tasks were performed, and, when appropriate, the tools that each individual used to perform those work tasks. (emphasis added)
[9] Pleading the time spent on work tasks is necessary because the test for determining whether an individual is employed in the bargaining unit turns on whether the individual “performed work of the applicant trade union for a majority of their time on the application date” (Information Bulletin No. 9, p. 1). The Employer’s pleading was held to be deficient with respect to the group of 18, because it failed to specify the hours each individual worked with respect to the named equipment.
[10] The Board rejected the Employer’s request that it be allowed to amend its pleadings. The Board considered the interests of the group of 18 employees in expressing their wishes respecting representation by the Union, but concluded that there would be significant prejudice to the Union if pleadings were amended so long after the application date.
[11] Accordingly, the names of the group of 18 individuals were removed from the list of employees. The Board then determined that the Union had the requisite membership support among the employees and granted certification on the basis of the card count.
The Reconsideration Decision
[12] The Employer sought reconsideration, and the same Vice-Chair heard and determined that request. Again, the Vice-Chair gave detailed reasons why the request was refused. In particular he rejected the Employer’s argument that it had been denied procedural fairness, because of an alleged lack of notice of the standard of pleading that the Board would impose. He also rejected an argument of reasonable apprehension of bias.
Issues
[13] In this application for judicial review, the Employer again argues that the Board denied it procedural fairness, because the Board imposed pleading requirements that were not set out in Information Bulletin No. 9 or the preliminary decision in November 2018. Those requirements are said to be more stringent than those found in the Information Bulletin or the direction. According to the Employer, it had no notice that a higher standard would be imposed and no opportunity to meet that higher standard.
[14] The Employer also argues that the Board should have at least accorded it the opportunity to amend its pleadings, rather than make a determination about certification on the basis of the pleadings found to have been deficient.
The Standard of Review
[15] To the extent that the Employer bases its argument on procedural fairness, there is no need for this Court to deal with the standard of review. The Court must determine whether the appropriate level of procedural fairness was provided (Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805 at para. 37).
[16] However, the Employer also argues that the Board should have granted it an opportunity to amend its pleadings and provide particulars with respect to the group of 18. In my view, this is not an argument based on procedural fairness. Rather it is an attack on the merits of the Board’s decision on the appropriate remedial response to inadequate pleadings. As such, the standard of reasonableness applies to the review of this aspect of the Board’s decision.
Analysis
There was no denial of procedural fairness
[17] The Employer argues that it was denied notice of the standard to be applied by the Board in assessing the adequacy of the pleadings. It argues that the Information Bulletin and the direction of the Board in November 2018 set out the standard to be met in status disputes: an employer is to plead “the basic facts upon which it relies, including at least where the individual was working and what the employer asserts the individual was doing” (Information Bulletin, p. 2, emphasis added). The Employer submits that it had a legitimate expectation of the standard to be met, given these documents. However, the Board is said to have imposed a more stringent standard of pleading, adding the requirement to plead the type of work and the hours that the employee worked at each type of work. According to the Employer, the imposition of this standard was done without notice and contrary to the Employer’s legitimate expectations.
[18] In my view, there was no denial of procedural fairness. The Board in this case applied a standard of pleading that has long been established in its past cases dealing with status disputes in the construction industry. The Employer, represented by counsel (although not the counsel in this application for judicial review), should have been aware of the pleading requirements from that case law, as well as the Information Bulletin and direction.
[19] Both the Information Bulletin and the direction of the Board required the Employer to plead the “basic facts” on which it relied in support of its position on the status of the disputed individuals. What constitute “basic facts” for purposes of a pleading is context specific. The “basic facts” necessarily vary with the test that ultimately will be applied to resolve a dispute.
[20] In status disputes in the construction industry, the Board looks to the type of work an employee was doing on the application date, the location of the work, and, significantly, the hours that the employee spent on different types of work. To be included in the bargaining unit, the employee must have been doing the type of work of the applicant trade union for a majority of their time on the application date. This is clearly set out on p. 1 of the Information Bulletin.
[21] Moreover, the Board’s jurisprudence clearly sets out the test to be applied in a determination of status disputes in the construction industry. The test was first articulated in Gilvesy Enterprises Inc., [1987] OLRB Rep. February 220 at para. 21, and it continues to be followed (see, for example, Govan Brown & Associates Limited, 2018 27199 (OLRB) at paras. 18-19). The Board focusses on the date of the application, asking whether the person whose status is in dispute was employed by the respondent employer, was at work on that date and, if so, “the work that that person spent the majority of his time doing on the date of application.”
[22] Accordingly, the Board in the present case reasonably observed that there should have been no surprise to the Employer as to the test that would need to be met to show that an individual was to be included in the bargaining unit – the individual must have spent a majority of his or her time doing bargaining unit work for the Employer on the application date (Initial Decision at para. 29).
[23] In my view, there should have been no surprise about the Board’s requirement that both the work done and the time spent on that work must be pleaded in a status dispute, given the Board’s past jurisprudence (see, for example, Labourers International Union of North America, Ontario Provincial District Council v. Finn Way General Contractor Inc. at para. 11). Indeed, it bears repeating the following quotation from Ex-L Excavating and Site Services (a division of Encora Enterprises Ltd.),2016 66689 at para. 16 (cited in the Board’s reasons at para. 29):
There are certain principles that flow from these cases. The party that says a name should remain on the list bears the onus of proof. In this case, that is the Employer. In order to meet that onus, a party must plead “material facts” concerning the work performed by the persons in dispute. Material facts are those facts which let the opposite party know with some clarity, as well as the Board reviewing the matter, what the person in dispute is alleged to have been doing on the date of the application. The purpose of this is partly to let the party opposite know the case it has to meet, as well as to be able to investigate the opposite party’s allegations in a timely manner. Its further purpose is to allow the Board panel reviewing the matter to conclude that the facts as pled could lead the Board to determine that the person in dispute was performing work in the applied for bargaining unit for the majority of the time on the date of application if proven at hearing. The Board will only refer status disputes to hearing where, after a review of the parties’ submissions, the Board determines that there is a matter to be litigated.
[24] Information Bulletin No. 9 is a guide, not a statute. It provides information and guidance with respect to pleadings, but it should be read and understood within the larger context of the applicable legislative provisions and the Board’s jurisprudence on the issue of pleadings and the resolution of status disputes. I do not accept the Employer’s argument that it had no notice of the Board’s pleadings requirements, including the need to provide information on the work done and the amount of time devoted to that work on the application date.
[25] I also disagree with the Employer’s argument that there was a significant change in the pleadings requirement in 2012, when the earlier requirement, established in 2010, to plead “a detailed statement of the facts upon which it relies in support of its position” was amended to “the basic facts upon which it relies, including at least where the individual was working and what the employer asserts the individual was doing.” One sees in the case law from 2010 that the Board insists on detailed pleadings respecting status disputes in an application for certification in the construction industry, including information about the work done by an employee and the hours spent on union work on the application date.
[26] There was no denial of procedural fairness here, nor the application of a new and higher standard respecting pleadings of which the Employer had no notice.
[27] The Employer also argues that it met the pleadings requirement, because it provided information and documentation about where each individual was working and what the Employer asserts he or she was doing during the day. The Employer also suggests that it is implicit that the individuals worked the full day with the same equipment.
[28] The Union quite rightly argued that it was not its role nor the Board’s to piece together what each of the employees did throughout the day by going through the documents provided by the Employer.
[29] These arguments of the Employer are really an attack on the merits of the Board’s decision that the pleadings were inadequate. The Employer takes the words “at least” in the Information Bulletin and the direction as determinative. However, the instruction, read as a whole, is to provide “basic facts” relative to the issue to be determined. That issue is whether the employer has made out a prima facie case that the disputed individuals are in the bargaining unit, with the result that a hearing may be required to actually determine their status.
[30] Deference is owed by this Court to the Board’s determination about the adequacy of the pleadings, a determination that draws on the Board’s specialized expertise, particularly in a construction industry certification case. The Board found that the pleadings were inadequate because there was no information about the time spent working by the group of 18 with the named equipment. While the Employer argues that it was implicit that these individuals worked all day with the particular equipment, the Board was not satisfied this was the case, given the importance of the time element in the test for inclusion in a construction industry bargaining unit. In my view, the Board’s decision fell within a range of reasonable and acceptable outcomes, and its decision was clearly explained and justified.
The refusal to permit amendment of the pleadings
[31] The Employer also takes issue with the Board’s refusal to permit it to amend its pleadings and to provide particulars respecting the group of 18 individuals. Again, this is not an issue of procedural fairness; rather, it is an attack on the merits of the Board’s remedial decision. Accordingly, the standard of review is reasonableness.
[32] The Board gave careful reasons for its refusal to allow an amendment. It was well aware that one purpose of the Act, as set out in s. 2, is to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees. The Board was aware of the impact of its decision on the excluded employees (see para. 40 of the Initial Decision). However, it was also concerned about the prejudicial effect on the Union if further information were provided months after the date of application (at para. 45).
[33] In its Reconsideration Decision, the Board elaborated on its concern about prejudice to the Union because of delay in providing particulars of the work done by the group of 18 on the application date. For example, at para. 47, the Board stated,
The Board’s case law establishes that time is of the essence when it comes to providing particulars regarding status disputes in the construction industry. It would have been almost impossible to remedy the failure on the part of the responding party had it been directed to advise the applicant many months after the application filing date whether “the 18 operators operated equipment for the majority/entirety of the day.”
The Board concluded that the prejudice caused by a five month delay would have been impossible for the Union to overcome (at para. 49).
[34] Given the prejudice to the Union, the Board’s decision to refuse the request to provide further particulars was a reasonable exercise of its discretion and consistent with the Board’s jurisprudence. There is no basis for judicial intervention.
Conclusion
[35] Accordingly, this application for judicial review is dismissed. Costs to the Union are fixed at the agreed amount of $9,000. The Board does not seek costs.
Swinton J.
I agree _______________________________
Favreau J.
I agree _______________________________
Copeland J.
Released: December 12, 2019
CITATION: ASL Agrodrain Limited v. International Union of Operating Engineers, 2019 ONSC 7194
DIVISIONAL COURT FILE NO.: 19-DC-2492
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Favreau and Copeland JJ.
BETWEEN:
ASL AGRODRAIN LIMITED
Applicant
– and –
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 AND ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: December 12, 2019