CITATION: The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153
DIVISIONAL COURT FILE NO.: 264/19 DATE: 20200520
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Penny and Kristjanson JJ.
BETWEEN:
THE SOCIETY OF UNITED PROFESSIONALS
Applicant
– and –
NEW HORIZON SYSTEM SOLUTIONS and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
Jeffrey M. Andrew and Balraj Dosanjh, for the Applicant
Daryn Jeffries and Alexandra Jamieson, for the Respondent New Horizon System Solutions
Aaron Hart and Lindsay Lawrence, for the Respondent Ontario Labour Relations Board
HEARD at Toronto: May 7, 2020
Swinton J.
Overview
[1] The applicant, The Society of United Professionals (“The Society”), seeks judicial review of three decisions of the Ontario Labour Relations Board (the “Board”) arising out of an application claiming that the respondent New Horizon System Solutions (“New Horizon”) committed unfair labour practices. The Society alleged that New Horizon had violated ss. 17 and 70 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A (the “Act”) by interfering with The Society’s representation of employees in the bargaining unit and by bargaining in bad faith. Both allegations were based on New Horizon’s refusal to disclose the Master Services Agreement (“MSA”), a commercial contract that governed its relationship with Ontario Power Generation (“OPG”).
[2] The Board rejected the allegation of a violation of s. 70, interference with representation obligations, in a decision dated November 19, 2018. It subsequently granted an order for partial disclosure of the MSA in a decision dated December 27, 2018, having found a violation of the duty to bargain in good faith. Finally, it rejected a further request by The Society to order disclosure of one further provision of the MSA in a decision dated January 17, 2019.
[3] For the reasons that follow, I would dismiss the application for judicial review, as the decisions of the Board were reasonable.
Factual Background
[4] New Horizon is a private company that provides technology services to OPG. It began operations around 2001 when OPG transferred approximately 580 of its employees involved in IT services to New Horizon. The Society was recognized by New Horizon as the bargaining agent for approximately 400 of the transferred employees whom it had previously represented at OPG. New Horizon also agreed to assume employees’ pension and benefits entitlements that were previously the responsibility of OPG.
[5] The commercial relationship between New Horizon and OPG has always been governed by the MSA, which expires in 2021. The MSA sets out business terms as between New Horizon and OPG, such as the scope of services, service level requirements, and performance standards. It includes a non-disclosure provision binding New Horizon. The Society is not a party to the MSA, and there is no reference to the MSA in the collective agreement between New Horizon and The Society
[6] At the time of the hearing of the applications before the Board, the number of employees represented by The Society had fallen to approximately 174 persons. This was largely due to headcount reductions that had occurred over the years in response to OPG’s desire for cost cutting.
[7] The collective agreement contains provisions respecting a voluntary surplus process (“VSP”). Eligible employees who accept an offer to terminate their employment may elect one of three options under the pension plan: transfer the commuted value to another retirement vehicle; draw a pension from the plan; or defer pension benefits until they turn 65. Employees who choose to take the commuted value of their pension become ineligible for certain post-retirement health care benefits (“OPEB”).
[8] The VSP process was engaged in March 2018 to deal with a proposed reduction of seven positions. The Society requested disclosure of a copy of the MSA, arguing that it needed the document in order to adequately represent affected employees during the VSP process, particularly with respect to information about the state of the pension plan. The pension plan had under funding issues. In May 2018, New Horizon advised The Society that if the pension plan were to be wound up at that time, there would be a short-fall, with the effect that benefits would be worth about 70% of their current value. The Society wanted the MSA, in part, to determine whether OPG had obligations to provide support to the pension plan.
[9] On April 17, 2018, The Society filed an unfair labour practice application to the Board under s. 96 of the Act, requesting a declaration that New Horizon’s refusal to provide access to the MSA, subject to various confidentiality provisions, unduly interfered with The Society’s representation obligations and thereby violated s. 70 of the Act.
[10] On May 17, 2018, The Society gave official notice to New Horizon to bargain a new collective agreement. In the notice, The Society requested an unredacted copy of the MSA. New Horizon denied the request, but agreed to provide certain updated financial and bargaining unit information that had changed since the parties’ previous round of negotiations.
[11] On June 8, 2018, The Society amended its application before the Board, asserting that New Horizon had also violated s. 17 of the Act by refusing to provide a copy of the MSA after The Society gave notice to bargain.
The Board Proceedings
[12] In its November 2018 decision, the Board rejected the allegation with respect to s. 70 of the Act, finding that the refusal of New Horizon to disclose the MSA did not constitute interference with the Society’s representation of employees. The Board refused to deal with the s. 17 allegation, the duty to bargain in good faith, on the basis that it was premature. However, the Board stated that The Society could bring back its application in an expedited manner once the parties had exchanged bargaining proposals.
[13] In the December 27, 2018 decision, the Board dealt with the s. 17 allegation and found that certain parts of the MSA should be disclosed because New Horizon had made bargaining proposals that required concessions from The Society. The Board ordered New Horizon to disclose portions of the MSA that concern (i) staffing levels and pricing, (ii) the description of work to be done by bargaining unit members, and (iii) pension obligations and liabilities. The Board was not satisfied that any other MSA content was reasonably connected to any of the concessions sought in New Horizon’s bargaining agenda
[14] On January 9, 2019, New Horizon met with the Society to review the unredacted portions of the MSA. While several parts of article 3.06 (Service Provider Employees) were disclosed, article 3.06(4) was not disclosed. Accordingly, on January 10, 2019, The Society requested that the Board review the Service Provider Employees section, including s. 3.06(4), to determine whether the entire section should be disclosed. New Horizons responded in writing on January 11. On January 17, The Society wrote to the Board asking that the decision be rendered quickly, as the parties were proceeding to interest arbitration on January 19.
[15] On January 17, 2019, the Board denied The Society’s application and concluded that article 3.06(4) of the MSA did not fall within the disclosure requirements set out in the December 2018 Decision. In reaching this conclusion, the Board relied on a statement from New Horizon’s counsel that the provision did not fall within the earlier disclosure order, asit related to OPG obligations.
The Issues on the Application for Judicial Review
[16] All the parties are agreed that the decisions of the Board are reviewable on a standard of reasonableness.
[17] The Society argues that the Board gave an unreasonably narrow interpretation to s. 70 of the Act, unreasonably found the s. 17 complaint to be premature in its November decision, and unreasonably failed to find that full disclosure of the MSA was required in order for New Horizon to meet its duty to bargain in good faith.
[18] New Horizon submits that the decisions were reasonable and consistent with the jurisprudence respecting both ss. 17 and 70. In addition, New Horizon argues that the application for judicial review should be dismissed as premature, because The Society failed to seek reconsideration by the Board before seeking judicial review.
Reconsideration is Not an Adequate Alternative Remedy
[19] New Horizon relies on Volochay v. College of Massage Therapists, 2012 ONCA 541, where the Court of Appeal confirmed that barring exceptional circumstances, courts should not interfere with an administrative proceeding until the proceeding has run its course (at para. 68). In determining whether to refuse to hear an application for judicial review where there is, for example, an internal appeal or review process in the statutory scheme, a court must decide whether the applicant has an adequate alternative remedy.
[20] New Horizon submits that the applicant should have asked the Board to exercise its power to reconsider its decisions pursuant to s. 114(1) of the Act. I disagree, for the reasons of the Divisional Court in United Brotherhood of Carpenters and Joiners of America, Local 249 v. Matrix North American Construction Ltd., 2019 ONSC 5647 at paras. 39-42.
[21] As the Supreme Court of Canada stated in Ellis-Don Ltd. v. Ontario Labour Relations Board, 2001 SCC 4, a failure to seek reconsideration from the Board before proceeding to judicial review is not an absolute prerequisite to judicial review (at para. 57).
[22] As the Divisional Court noted in Matrix, the Board has a discretion whether to grant reconsideration, and it does so only in limited circumstances (at para. 39). Had The Society sought reconsideration of the Board’s decisions on ss. 17 and 70, the Board would likely have rejected the request as an attempt to reargue the case. This is not a situation where The Society raises a procedural fairness issue or a conflict in the jurisprudence that the Board might wish to address in a reconsideration.
[23] Accordingly, I would not give effect to the argument that this application for judicial review is premature.
The Board Reasonably Concluded That There Was No Violation of s. 70
[24] Section 70 of the Act provides:
No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. (emphasis added)
[25] Both parties had agreed at the hearing before the Board that the leading cases on the interpretation and application of s. 70 are Hotel & Restaurant Employee CAW Local 448 v. The Millcroft Inn Ltd., 2000 12208 (Ont. L.R.B.) and Bernard v. Canada (Attorney General), 2014 SCC 13. In both these cases, the issue was whether s. 70 or a similar provision requires that a trade union be provided with contact information, such as home addresses and phone numbers, for the members of the bargaining unit it represents.
[26] In Millcroft, the Board set out the test for applying s. 70 (at para. 16):
A violation of section 70 of the Act does not require an anti-union animus. If the result of certain conduct is interference in the union’s capacity to represent its members, that can be sufficient to constitute a breach of the provision. The conduct may be lawful and bona fide; it may be free of any anti-union taint, yet if its effect is to harm the union’s capacity to represent its members, it may be a violation. It will be a violation if there is no business rationale for the interference.
In Bernard, the Supreme Court of Canada quoted the Millcroft decision with approval. In each of these cases, it was held that access to the employee contact information was necessary for the union to carry out its representative obligations.
[27] In the November 2018 decision, the Board summarized the test to be applied pursuant to s. 70 as follows (at para. 50):
The Board accepts the submissions of New Horizon counsel that in circumstances where a trade union seeks disclosure of an otherwise confidential business document or information in the period when no collective bargaining is underway, the document or information should at least be directly and concretely connected to information specific to employees covered by the collective agreement or some entitlement or right specifically arising in the collective agreement. Further, even if the document or information could be said to come within these parameters, that is not necessarily enough (on its own) to warrant disclosure. In each such case the issue will be whether refusal to disclose constitutes “interference” with the trade union under section 70 of the Act.
[28] The Society argues that the Board unreasonably restricted the scope of s. 70 when it said that the document sought must be directly and concretely connected to information specific to employees covered by the collective agreement or some entitlement or right specifically arising in the collective agreement. Rather, The Society submits that the Board should order the employer to disclose information that might assist or be of value to the trade union in representing employees. In support of this proposition, The Society relies on the following passage from Bernard (at para. 26):
The second and more theoretical rationale for the employer’s obligation to disclose home contact information is that the union must be on an equal footing with the employer with respect to information relevant to the collective bargaining relationship. Disclosure of personal information to the union is not like disclosure of personal information to the public because of the tripartite relationship between the employee, the employer and the union. To the extent that the employer has information which is of value to the union in representing employees, the union is entitled to it.
The Society then asserts that the disclosure of the MSA would have assisted it in advising and representing employees during the work reduction process.
[29] I accept New Horizon’s submission that the Board’s decision with respect to s. 70 was reasonable. The Board referred to the two leading cases, and correctly identified the fact that each dealt with a union’s right to contact information of bargaining unit members in order to carry out its representative functions. However, the Board also observed that s. 70 could cover more than disclosure of contact information. This is apparent in other cases such as Aluminum Brick and Glass Workers International Union v. Ford Glass Ltd., 1986 1480 (Ont. L.R.B.).
[30] However, Ford Glass does not stand for the broad right of disclosure that The Society seeks in the present case. There, the collective agreement contained benefit entitlements for employees that were contained in a Master Plan that was in the employer’s possession. The employer had allowed the union to review the Plan’s content at the employer’s office, but refused to provide a copy. The Board ordered disclosure of the Master Plan, because it was information to which a union should have access in carrying out its representational duties, and the employer had provided no business justification for refusing access (at para. 6).
[31] In Laurentian University Faculty Association v. Laurentian University, 2010 32256 (Ont. L.R.B.), the Board ordered disclosure of Notices of Decision under a workplace harassment policy if the decision affected a bargaining unit member, either as a complainant or a respondent.
[32] The Board considered these and other cases and explained why the refusal to provide the MSA would not constitute interference with The Society’s capacity to represent bargaining unit members. It stated (at para. 56):
In the Board’s view, the information sought by the Society in this application pursuant to section 70 of the Act is not information directly connected to individual employees or arising directly from the New Horizon/Society collective agreement. The MSA is a commercial services contract between New Horizon and OPG, the Society is a stranger to it and the MSA is nowhere referenced in the New Horizon the Society collective agreement (sic). In the Board’s view, the information the Society seeks through an unredacted MSA is, at best, information ancillary to the Society’s representation of its members.
[33] The Society candidly admitted that it sought to “push the envelope” in the present case with respect to the scope of the employer’s disclosure obligation. The Board rejected the invitation to do so. Its decision that refusal of disclosure of the MSA would not interfere with The Society’s capacity to carry out its representational obligations was consistent with the existing jurisprudence and justifiable on the facts of this case.
[34] It is important to remember that the MSA is third party information. It does not form part of the collective agreement, and it is not referred to therein. The Board reasonably concluded that the existence of provisions of the collective agreement dealing with pension and long-term disability benefits does not lead to the conclusion that the information contained in the unredacted MSA arises from the collective agreement.
[35] Accordingly, I would not give effect to the argument that the Board’s decision respecting s. 70 was unreasonable.
The Board Reasonably Concluded That the Section 17 Complaint was Premature
[36] That brings me to the prematurity issue with respect to s. 17 of the Act, the duty to bargain in good faith. Section 17 provides:
The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.
[37] The Board refused to deal with the merits of this aspect of the application in its November decision. While The Society had given a notice to bargain, the parties had not yet exchanged bargaining proposals. The Board observed that “whether a disclosure requirement for otherwise confidential business information should be made in the context of an application under section 17 of the Act is dependent on the proposals made by the party which holds the otherwise confidential information” (at para. 58).
[38] The Society argues that this was unreasonable. I disagree. The Board reasonably decided that it should consider the scope of the duty to bargain in good faith, and the disclosure required, in light of the bargaining demands of the employer. It also provided a streamlined process so that it could react quickly to a new request for disclosure. This was reasonable in the circumstances and, again, consistent with the Board’s jurisprudence.
The December Decision was Reasonable
[39] The application with respect to a violation of s. 17 was renewed after the parties had engaged in four days of negotiations in November. They had then agreed to proceed to interest arbitration, which was scheduled for January 19, 2019. On November 27, 2018, the parties signed a letter of understanding (“LOU”) that set some parameters around how the interest arbitration would be conducted.
[40] The Board considered the parties’ written submissions and issued its decision ordering partial disclosure of the MSA on December 27, 2018. It ordered the disclosure because New Horizon had sought concessions from The Society – for example, increasing the work week, contracting out and restrictions on work from home and accommodation. The Board ordered New Horizon to disclose portions of the MSA that concern (i) staffing levels and pricing, (ii) the description of work to be done by bargaining unit members, and (iii) Society-represented member pension obligations and liabilities.
[41] The Board set out a summary of the applicable principles found in the jurisprudence in para. 13 of the reasons. In applying those principles, the Board stated (at para. 14):
The Board is satisfied that the Society should have access to at least some unredacted portions of the MSA for the Society to be able to reasonably assess the bona fides of the [New Horizon] bargaining positions. The Board is not privy to the actual and specific collective bargaining proposals that [New Horizon] (or the Society) made during the November bargaining dates which have since been withdrawn pursuant to the terms of the LOU. The Board is satisfied, on the other hand, that the [New Horizon] bargaining agenda, which remains outstanding notwithstanding the terms of the LOU, seeks concessions from the Society. Moreover, the concessions sought are in respect of specific terms and conditions of employment and are not only exhortations to lower the cost of business (though they may also be that as well). In this respect, the [New Horizon] position that the Society should agree to ease or eliminate contracting out restrictions so that [New Horizon] has a better opportunity to capture more of the more profitable OPG “project” work is a weighty factor in driving the Board’s decision in this case. In the Board’s reading of the [New Horizon] bargaining agenda in this respect, it appears that [New Horizon] is concerned that there is going to be or may be a shift in the fundamentals of the commercial relationship between [New Horizon] and OPG, and the [New Horizon] bargaining position is focused on addressing that shift. Fairness requires that the Society have an opportunity to assess the bona fides of this position.
[42] The Society argues that the Board’s decision was unreasonable because it failed to order full disclosure of the MSA. It also claims that the disclosure came too late, after bargaining had ended.
[43] I disagree. The disclosure did not come after bargaining was complete. The parties were on their way to interest arbitration, and there was nothing to preclude further bargaining between the parties.
[44] Again, the Board followed the principles set out in the jurisprudence and applied it in the context of this case, exercising its expertise in matters of labour relations and collective bargaining. The decision is logical and justified, and the disclosure ordered was reasonable.
The January Decision was Reasonable
[45] The Society submits that the January decision, refusing the disclosure of article 3.06(4) of the MSA, was unreasonable. The Board based its refusal on a written statement from New Horizon’s counsel that the provision was not covered by the earlier disclosure order because the provision addresses OPG’s successor rights obligations or limitations (or lack thereof). The Society submits that the Board member should have inquired further into the content of this provision.
[46] I see nothing unreasonable in the Board’s decision. The Society had asked for a further disclosure on an urgent basis, writing to the Board on January 17, 2019 stating that they needed a decision right away because the parties were scheduled to begin their interest arbitration on January 19, 2019.
[47] The Board responded immediately, giving its decision with brief reasons on January 17. It accepted counsel’s statement as to the content of the provision and explained why. In the circumstances, its reasons were adequate and the decision reasonable.
Conclusion
[48] For these reasons, the application for judicial review is dismissed. Costs to New Horizon are fixed at $7,500 all inclusive payable by The Society. The Board does not seek costs.
Swinton J.
I agree _______________________________
Penny J.
I agree _______________________________
Kristjanson J.
Released: May 20, 2020
CITATION: The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153
DIVISIONAL COURT FILE NO.: 264/19 DATE: 20200520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Penny and Kristjanson JJ.
BETWEEN:
THE SOCIETY OF UNITED PROFESSIONALS
Applicant
– and –
NEW HORIZON SYSTEM SOLUTIONS and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: May 20, 2020