Court File and Parties

CITATION: Board of Governors of Exhibition Place v. IATSE local 58, 2021 ONSC 3780

COURT FILE NO.: 546/20

DATE: 2021-05-26

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MCWATT A.C.J.S.C.J., SACHS AND J.A. RAMSAY JJ.

BETWEEN:

The Board of Governors of Exhibition Place Applicant

– and –

The International Alliance of Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, local #58 Respondent

– and –

Jesse Nyman, Arbitrator Respondent

COUNSEL: Greg McGinnis for the Applicant Katherine Ferreira for the Respondent IATSE local 58

HEARD: May 18, 2021 at Toronto by videoconference

Reasons for Decision

J.A. Ramsay J.

[1] This is an application for judicial review of the decision of an arbitrator made under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. The arbitrator has decided that the Applicant employer has breached the collective agreement but has not yet decided damages. Normally this court would consider an application for judicial review to be premature at this point. In the exceptional circumstances of this case, including the fact that the parties agreed that the decision under review would apply to far more than the three grievances dealt with in the decision, we agreed with the parties that hearing the application would save, rather than waste, resources. It would also provide for a more expeditious resolution of the matters in dispute, which is consistent with the goal of labour relations dispute resolution and in the interests of the administration of justice. For that reason, we decided to hear it.

[2] The parties agree that the standard of review is reasonableness.

[3] The facts are not in dispute. Exhibition Place is the well-known park on Lake Ontario that houses the Canadian National Exhibition, BMO field (home of the Argonauts and Toronto F.C.), the Queen Elizabeth Exhibit Hall and various other events and venues on the grounds. IATSE local 58 is the bargaining agent for stage employees who work at Exhibition Place. The Governors of Exhibition Place leased a part of the park for construction and operation of a hotel, Hotel X.

[4] Hotel X hosted four events in the spring of 2018. They involved installation and removal of a temporary stage and operation of lights and sound equipment. Hotel X used contractors who are not represented by IATSE. IATSE filed three grievances in relation to the four events.

[5] The arbitrator allowed the grievances and held that the Applicant breached the collective agreement by permitting Hotel X to use non-union workers or by leasing the premises to Hotel X for that purpose. He based his decision on article 1.1 of the collective agreement, which defined union work, article 18.1 in which the Applicant agreed that it would not permit union work to be done on the grounds of Exhibition Place except by members of the union, and section 7.8(a) of the lease between the Applicant and Hotel X in which the Applicant acknowledged that if the Hotel did so, the Applicant would be in breach of the collective agreement.

[6] The Applicant argues that the arbitrator’s interpretation of the agreement was unreasonable in two main respects – it extended the union’s jurisdiction beyond the bounds of the agreement, and it fundamentally misconstrued article 18.1, the ban on contracting union work outside of the bargaining unit.

The extent of the union’s jurisdiction

[7] Article 1.1 of the agreement provides:

1.1 The Employer recognizes the Union as the sole bargaining agent for all stage employees engaged by the Employer to perform work on theatrical productions or concerts and their operating systems on any temporary or permanent stage, or on other events for which stage employees are engaged, on the Grounds of Exhibition Place in the City of Toronto, save and except non-working supervisors and persons above the rank of non-working supervisors

[8] Articles 1.6 and 1.7 state that the union’s only jurisdiction is what is expressed in the agreement. Article 3.1 reserves management rights to the employer subject only to limitations expressed in the agreement.

[9] The Applicant submits that “stage employees” (also referred to as “stage hands”) is a term of art that refers to a specific craft. It says that a craft unit of stage hands is limited to employees engaged in live theatre or performances in the entertainment industry.

[10] In support of this argument the Applicant cited three decisions of the Labour Relations Board. None of the cases purports to limit the work of stage employee to stage hands who work at concerts and live theatre. In IATSE, Local 129 v. Brantford (City), and IATSE, Local 58 v. Theatrecorp Ltd., IATSE sought a craft bargaining unit for stage employees rather than an all-employee bargaining unit. In IATSE, Local 58 v Audio Visual Services (Canada) Corporation, the Labour Relations Board certified IATSE as the bargaining agent for audio/visual technicians and riggers. The cases support the proposition that there is a craft of stage employees who work at concerts and theatrical events, but, as the arbitrator said, they did not oblige him to find that the bargaining unit in the present case was so limited.

[11] The arbitrator decided that the work done at the events that were the subject of the grievances was encompassed by article 1.1. He relied on the words “or on other events for which stage employees are engaged” in the article, as well as evidence of union members who testified that the work done at the grieved events was the same sort of work that they had done elsewhere at Exhibition Place for decades. He also relied on several other articles in the collective agreement, which speak to the Applicant’s obligations in relation to events other than concerts and theatrical events. According to the arbitrator, “The only way that these provisions make any sense is if the jurisdiction of IATSE under the Collective Agreement applies to all of these type of events.” (Award, para. 61).

[12] The Applicant submits that the arbitrator erred in relying on the evidence of past practice as article 1.7 of the agreement provides that “should the Employer assign employees work outside the jurisdiction of the Union, under this Article, such assignment does not extend the union’s jurisdiction under this Article.” It also argues that the Arbitrator erred in his analysis in para. 61. According to the Applicant, the other provisions mean that if stage employees are used at other types of events, the Union is their sole bargaining agent and the employer is bound by the provisions of the collective agreement, they do not mean that stage employees must be used for events other than concerts and theatrical events.

[13] Contrary to the submission of the Applicant, there is nothing in Article 1.7 that refers to the use of extrinsic evidence or that prohibits the arbitrator from using extrinsic evidence to aid in his determination of what “stage employees” meant in the context of the collective agreement at issue. The cases cited by the Applicant did not define the craft of stage hand for all purposes. Reference to the non-exhaustive definition in the words of the agreement itself and the decades-long practices known to both parties were reasonable ways to interpret what the words of the article meant to them.

[14] Further, while the Applicant may not agree with the arbitrator’s analysis in paragraph 61, this does not mean that analysis was unreasonable. There is nothing irrational about concluding that the reference to stage employees working at “other events” in Article 1.1, and the provisions in the collective agreement that set out the employer’s obligations in relation to other events, meant that the parties contemplated something more by the use of the term “stage employee” than an employee who only works in live theatre and concerts.

Misinterpretation of article 18.1

[15] This is the Applicant’s main complaint.

[16] Article 18.1 of the collective agreement provides:

18.1 The Employer will not rent, lease, license or otherwise permit a third party to perform work on the Grounds of Exhibition Place that would fall under the jurisdiction of the Union under this Agreement unless the work is performed by employees under this Agreement or is performed by an entity bound to a collective agreement with the Union.

[17] The arbitrator said this:

70. As noted above, Exhibition Place is a multi-venue, multi-event location. Some venues are owned and operated by the Board, some are managed by third parties and some are leased to third parties. The Board's business includes hosting events and permitting third parties to host events on the Grounds of Exhibition Place. In this context it would make sense that IATSE would seek to protect its bargaining rights by securing a prohibition on the Board allowing a third party to perform work within its work jurisdiction on the Grounds of Exhibition Place without using IATSE members. That is why Article 18.1 provides that the Board may not rent, lease or license a third party to perform work on the Grounds of Exhibition Place that falls within IATSE' s work jurisdiction. Of course, there can be a multitude of commercial forms in which the Board transfers rights to conduct an event at Exhibition Place to a third party and that is why Article 18.1 has a catchall of "or otherwise permit.” The structure of Article 18.1 is that it lists three common methods by which the Board transfers rights to third parties to host an event at Exhibition Place, but the words "or otherwise permit" clarify that the list is a non­exhaustive list of examples.

[18] Pointing to this paragraph, the Applicant submits first that the arbitrator engaged in circular reasoning by starting with the premise that article 18.1 meant what the union said it meant, because that is what the union would have bargained for.

[19] The words of paragraph 70, as a whole, do not bear that interpretation. The arbitrator observed that the union had a motive to bargain for the provision as he interpreted it. He also looked at the words of the agreement and the nature of the Applicant’s business. That does not imply circular reasoning.

[20] The Applicant then argues that the reasonable interpretation of the contract was that it prohibited the Applicant from renting, leasing or licensing property or permitting it to be used for the purpose of performing work within the union’s jurisdiction. It goes on that since the Applicant did not lease the property to Hotel X for that purpose, but rather for the purpose of building and operating a hotel, it was not in breach of the agreement. Furthermore, the Applicant submits that the use of the word “permit” implies at a minimum that the Applicant must have known of Hotel X’s intention to use its property for the purpose of performing work within the union’s jurisdiction.

[21] Even if the Applicant’s interpretation could be one interpretation of article 18.1, it is far from the only reasonable interpretation of that provision. Article 18.1 does not contain the words “for the purpose of.” The use of the word “otherwise” before “permit” makes it reasonable to find, as the arbitrator did, that in the context of Article 18.1 “permit” is a catch all term for acts such as “rent”, “lease” or “license” rather than an indication that the Applicant’s action must in some way be intended or purposeful.

[22] The record does not support the contention that the arbitrator’s decision was the result of anything but an internally coherent and logical chain of analysis. His decision was based on the words of the collective agreement considering their context and the parties’ intention. The result is justifiable on the evidence. The decision was not unreasonable.

Conclusion

[23] The Application is dismissed. The parties have agreed that in this event the Applicant is ordered to pay costs fixed at $7,500.

J.A. Ramsay J.

I agree. McWatt A.C.J.S.C.J.

I agree. Sachs J.

Released: May 26, 2021