Enercare Home & Commercial Services v. UNIFOR, Local 975, 2021 ONSC 606
CITATION: Enercare Home & Commercial Services v. UNIFOR, Local 975, 2021 ONSC 606
COURT FILE NOS.: 515/17 and 521/17
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ducharme and Petersen JJ.
B E T W E E N:
ENERCARE HOME & COMMERCIAL
Richard Charney and Jennifer Hodgins
SERVICES LIMITED PARTNERSHIP,
for the Applicant Enercare
GANEH ENERGY SERVICES LTD. and
BEAVER ENERGY SERVICES LTD.
John Craig and Jackie VanDerMeulen
for the Applicants Ganeh and Beaver
Applicants
- and -
UNIFOR, LOCAL 975, PERRAS
Michael Church for the Respondent UNIFOR
MECHANICAL SERVICES LTD. and
ONTARIO LABOUR RELATIONS
Aaron Hart for the Respondent OLRB
BOARD
No one appearing for the Respondent Perras
Respondents
Heard at Toronto: October 21, 2019[^1]
REASONS FOR DECISION
D.L. Corbett J.:
[1] These applications require the court to consider the related employer provisions of the Labour Relations Act, 1995 (the “Act” or the “LRA”).[^2] Similar issues arose in another application taken under reserve in this court while this decision was under reserve.[^3] In Deloitte Restructuring v. UFCW Local 175, I review the principles related to successor employers and then apply those principles where the question is whether a receiver carrying on an employer’s business by court appointment under the Bankruptcy and Insolvency Act[^4] is a “successor employer” under the LRA. In this decision I trace the development of “related employer” provisions in the LRA where it is alleged that two independent contractors to which the employer contracts out work are “related employers” under the Act.
Summary and Disposition of this Case
[2] In this case, the Vice Chair of the Ontario Labour Relations Board found that the applicants, Enercare, Ganeh and Beaver, are “related” employers within the meaning of s.1(4) of the LRA.[^5] I conclude that the Vice Chair’s analysis was unreasonable because it failed to take account of bargaining history, the Collective Agreement, and relevant Letters of Understanding addressing Enercare’s longstanding contracting out practices (“LOUs”). This unreasonable analysis, in turn, led the Vice Chair to analyse other issues without regard to the proper context in which those issues arose.
[3] While I agree with Enercare, Ganeh and Beaver that there is good reason to doubt that a “related employer” declaration could be made reasonably in this case, the proper remedy is to send the case back for a fresh hearing in accordance with this court’s reasons. A proper contextual analysis of these issues has yet to be done and the Legislature has assigned the task of making that analysis to the Labour Board, not to this court.
[4] Therefore, for the reasons that follow, the Vice Chair’s decision is set aside and the case is remitted for a fresh hearing before a different Vice Chair.
Jurisdiction and Standard of Review
[5] This court has jurisdiction to conduct this judicial review pursuant to ss. 2 and 6 of the Judicial Review Procedure Act.[^6] The parties correctly agree that the standard of review of the Vice Chair’s decision is reasonableness. The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov confirms this standard of review.[^7]
Background
[6] Enercare sells, rents, installs and services residential water heaters and HVAC systems. Enercare and its predecessors have been in a collective bargaining relationship with UNIFOR, Local 975 and its predecessors for over 40 years.
[7] Enercare delivers its services through a combination of its own unionized employees and independent contractors. Enercare has significant “peaks” and “valleys” in demand for its services and use of independent contractors enables it to respond to these variations in demand.
[8] Between 20% and 30% of all work done by Enercare is currently carried out by its independent contractors. From a customer point of view, there is no apparent difference between unionized Enercare employees and employees of independent contractors: all wear Enercare uniforms, all work from vehicles marked as Enercare service vehicles, and all are dispatched centrally by Enercare. Decisions about whether work is done by Enercare employees or by independent contractors is made by Enercare on a case-by-case basis. An observant customer might note that trucks and documents used by independent contractors state that they are “under contract with Enercare”.
[9] The Collective Agreement does not preclude Enercare from contracting out work; rather, it expressly permits it. The extent to which Enercare contracts out and the effect of that contracting out has been a bargaining issue between the parties. As a result of two grievances on this issue, Enercare and UNIFOR have signed LOUs appended to the Collective Agreement. LOU #2 states that Enercare “is committed to successfully growing its competitive sales and service business with our own employees.” In LOU #3, Enercare agrees that it “shall not sub-contract work that is presently being performed by employees covered by this agreement that would by so doing result in lay off of regular Bargaining Unit Employees.”
[10] Ganeh and Beaver are two of the ninety independent contractors currently used by Enercare.
[11] Ganeh was formed in 2003 by a former manager of Enercare’s predecessor, at the suggestion of that predecessor, which wanted a reliable independent contractor to perform some of its contract work. Beaver was formed in 2008 and is owned by the son of Ganeh’s owner. Ganeh and Beaver share staff and are operationally integrated.
[12] Ganeh and Beaver are both economically dependent on their Enercare contracts, which form 100% of Ganeh’s business and 95-98% of Beaver’s business. There is a third affiliated company, NRG Energy Services, which is much smaller than Ganeh and Beaver, and which provides similar services to several companies other than Enercare.
The OLRB Proceedings and Decisions
[13] Between December 2011 and March 2012, UNIFOR applied to the OLRB for findings that Enercare and several of its contractors, including Ganeh, Beaver, and another contractor, Perras, were “related employers” within the meaning of s.1(4) of the Act.
[14] The Board found that the nature of the relationship between Ganeh/Beaver and Enercare met the test for a related employer declaration and that “Ganeh and Beaver essentially comprise a parallel Enercare workforce, performing the same core work performed by UNIFOR’s bargaining unit, but unencumbered by the accompanying bargaining unit entitlements.”[^8] The Board found that the test for a related employer declaration was not met in respect to Perras, largely on the basis that Enercare work was less material to Perras’ overall business.
Positions of the Parties
[15] There are two consolidated Applications for judicial review before this Court, one brought by Enercare and the other brought by Ganeh and Beaver.
[16] Enercare, Ganeh and Beaver argue that the Board unreasonably determined that:
a. the statutory test for a s.1(4) related employer declaration had been met; and
b. there was a labour relations purpose to issue a related employer declaration in these cases.
Enercare also argues that the Board’s reasons are inadequate.
[17] UNIFOR argues that the points raised by Enercare were raised before and decided by the Board. It argues that Enercare is really pursuing a “re-do” of its case in this court, which is not permitted on an application for judicial review. It argues that the Vice Chair carefully weighed the evidence, stated and applied the correct principles, and that therefore the resulting decision is reasonable on both the facts and the law. It argues that the Vice Chair’s reasons are thorough and more than adequate.
[18] The OLRB’s submissions focused on the standard of review.
Analysis
I. Successor Employees
[19] The legislative and jurisprudential history of the successor employer provisions of the LRA are set out in Deloitte. As concluded in Deloitte, the test for successorship:
… is assessed through an “instrumental approach” to determine whether a “functional economic vehicle” or a “going concern” has been transferred. This inquiry is to be undertaken through the lens of a large and liberal interpretation of the provision, to protect against the loss of bargaining rights through re-arrangement of business structures, while at the same time enabling businesses to sell their assets and arrange their affairs.[^9]
[20] The essential balance – between “protecting against the loss of bargaining rights” and “enabling businesses to… arrange their affairs” – runs through the jurisprudence on both successor and related employer applications. The successor employer provisions were added to the LRA in 1962 and enacted in roughly their current form in 1970. The related employer provisions were added in 1970, and their genesis relates closely to the reasons for enacting the successor employer provisions: to protect against loss of bargaining rights through re-arrangement of business structures, while still enabling businesses to arrange their affairs.
II. Related Employers
(a) Legislative Purpose and Context
[21] Subsection 1(4) of the Act provides as follows:
Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
[22] This provision was added to the Act in a 1970 amendment and has remained substantively unchanged ever since.[^10] Although the legislative record is not clear on this point, it seems that the inspiration for this amendment goes back to recommendations in the Goldenberg Report and subsequent recommendations from a federal Task Force on Industrial Relations following a series of disruptive strikes in the Canadian rail system in the 1960’s.[^11] While the Task Force did not specifically recommend related employer provisions, it did adopt and repeat recommendations from the Goldenberg Report related to successor employers.
[23] The Goldenberg Report had, itself, addressed one aspect of the problem of related employers:
Consideration should be given to measures for the protection of acquired bargaining rights in situations arising from certain types of business practices which may affect such rights, for example, where a contractor, engaged on a number of projects in each of which he has a different partner, is in a position to shift employees from a project with respect to which certification has been granted to another.[^12]
[24] The concerns identified by Commissioner Goldenberg are largely reflected in the wording of s.1(4), and are bolstered by s.1(5), which places a disclosure obligation on respondents to an application to “adduce at the hearing all facts within their knowledge that are material to the application” so that the OLRB may “focus on the true operational integration of the alleged related employers”.[^13]
(b) Jurisprudential History
[25] Initial OLRB cases viewed related employers as a different aspect of the mischief addressed by the successor employer provisions. For example, in Industrial-Mine Installations Ltd., the OLRB considered the intention of s.1(4), noting that the provision “is obviously contemplated to cure the mischief that results from being unable to properly define and tie down the employment relationship”.[^14] This mischief may arise, for instance, “where companies have a close relationship [and] an employee may be shifted from one company to another”, or “where a union had been granted bargaining rights for the employees of one employer, the employees could be shifted to another associated or related employer with the result that the bargaining rights which had been earned by the trade union for the employees was lost.”[^15]
[26] In Brant Erecting & Hoisting, the OLRB further elaborated on the rationale for the provision:
Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights.
Businesses or activities are “related” or “associated” because they are of the same character, serve the same general market, employ the same mode and means of production, utilize similar employee skills, and are carried on for the benefit of related principals. If these criteria are met, two businesses may be “related” within the meaning of s.1(4) even though their activities are carried on through different or corporate vehicles and are not carried on simultaneously.[^16]
[27] In summary, the concerns of Commissioner Goldenberg and the Task Force, and those articulated in early OLRB decisions, show that s.1(4) is intended to respond to similar broad concerns as the successor employer provisions. However, s.1(4) is intended to address somewhat different forms of corporate reorganization: as the Supreme Court found in Lester, successor rights provisions will rarely be applicable in situations where businesses operate simultaneously, without any disposition of at least a part of the first business to the second. In such a situation, where an employer is carrying on business through multiple legal entities under common control, s.1(4) may be engaged to protect a union’s bargaining rights.[^17]
[28] In Century Store Fixtures, the OLRB set out three basic criteria to assess whether it should make a declaration that employers are “related”:
(a) there is more than one entity (i.e. corporation, individual, firm, syndicate, association, or any combination of these things);
(b) these entities are engaged in associated or related activities; and
(c) the entities are under common direction or under common control.[^18]
[29] In the case at bar, as in many cases under s.1(4), the contested issues arise under the third branch of the statutory test summarized in Century Store Fixtures. The test for whether entities are engaged in associated or related activities involves analysis of five indicia:
(a) common ownership or financial control;
(b) common management;
(c) interrelationship of operations;
(d) representation to the public as a single integrated enterprise; and
(e) centralized control of labour relations.[^19]
[30] The test is applied purposively, to disregard formalities in favour of the real substance of the parties’ relationships, so as not to “preclude the fulfillment of legislative objectives.”[^20] Favouring substance over form does not, however, go so far as to ignore the essential requirement that the entities be in a control relationship:
… the test for “control” under s.1(4) of this Act envisions the ultimate power to “call the shots” where necessary… with respect to the labour relations of the two enterprises, and not simply the authority and responsibility to direct the activities of employees in the field. Were it otherwise, a totally independent and established company hiring the manager of field services from another company would inevitably find itself in the position of being a “related employer” for the purposes of the… Act. Rather… the section contemplates a point of central decision-making control with the ultimate power to, for example, say “yes” or “no” to a wage proposal from the union for both entities. Such power, as the Board cases show, may come simply from the legal relationship between the two entities.[^21]
[31] In Ontario Legal Aid Plan, the nature of the relationship between the allegedly related entities was central to the case. Two community legal aid clinics argued that the Ontario Legal Aid Plan was “related” to the clinics as an employer, because the Plan funded the clinics, constraining clinic management’s decisions during collective bargaining. The Court of Appeal found that s.1(4) of the Act permitted taking a “look behind the corporate veil” to assess whether “there are sufficient indicia of the managerial control normally exercised by an employer over its employees”.[^22] The court went on to find that control over funding could be considered, but it was not, by itself, determinative:
…. [Control over funding] may well be a factor in holding that a prima facie case has been made out for the common control and direction required by s.1(4)…. [I]t is necessary to look at the legal relationship which created this dependency before arriving at the conclusion that the common control and direction was of a managerial character.[^23]
Labour Relations Purpose
[32] There must be a valid “labour relations purpose” to grant successor or related employer declarations. The Board’s discretion is not to be exercised to enable a union to extend its bargaining rights to bypass the normal certification process.[^24] Nor is it a “catch all” to address other labour relations issues such as contracting out.
[33] A labour relations purpose is found where a related employer declaration may:
• preserve or protect from artificial erosion the bargaining rights of the union;
• create or preserve viable bargaining structures; and
• ensure direct deadlines between a bargaining agent and the entity with real economic power over the employees.[^25]
[34] Where no such labour relations purpose can be found, the OLRB usually declines to grant a related or successor employer application.[^26]
[35] As found by the Board the work contracted out to Ganeh and Beaver erodes the bargaining rights of the union: it is all work that could be performed by unionized employees and is instead performed by independent contractors.[^27] However, the Board’s findings, as framed, have not been placed within the context of Enercare’s longstanding contracting out practices or the history of this issue in collective bargaining (including the terms of the Collective Agreement and the LOUs).
[36] The requirement for a “labour relations purpose” informs the Board’s exercise of discretion where an applicant meets the statutory test for a related employer declaration. This requirement does not, however, supplant the statutory test. A “labour relations purpose” will not justify a related employer declaration where, though there is erosion of bargaining rights, the employers are not, in fact, related. Otherwise virtually every manner of contracting out can be characterized as eroding bargaining rights, possibly leading to a related employer declaration. Assessing whether an employer is “related” requires full consideration of the labour relations context, something that did not happen in this case.
Contracting Out and Related Employer Applications
(i) Contractors as Related Employers
[37] Generally, the OLRB has not found that contracting out is a basis for a related employer declaration. As stated in learned commentary, “labour-only contracting” does not usually ground a related employer declaration because “[t]he related employer provision does not seek to prevent employers from externalizing employment responsibility, but to preserve the integrity of union representation rights and collective agreements where the legal form of the business has been altered.”[^28] However, the OLRB has distinguished between “bona fide contracting out”, where a s.1(4) declaration is not likely to be made, and other situations where a s.1(4) declaration may be granted.
[38] In Metro Waste Paper Recovery Inc., the OLRB set out factors to be considered to decide whether the contracting out is bona fide:
A legitimate subcontract in labour relations is one where the fundamental control over the employees rests with the subcontractor. Some of the considerations which bear on an assessment of the sub-contracting’s “legitimacy” are:
(a) the extent to which the contracting business is in a genuine arms-length relationship with the contractor;
(b) the extent to which the contractor devolves control over the subcontracted: the more the contractor retains control the less like a true subcontracting appears;
(c) whether the subcontracted work represents a core business of the contractor or is just a periphery matter;
(d) in labour subcontracting, the extent to which it is a permanent or a temporary subcontract.[^29]
[39] In all contracting out cases a “degree of functional interdependence is inevitable.”[^30] That inevitable interdependence, by itself, is not sufficient to meet the test for “common direction and control”. Otherwise, most contracting out relationships would meet the test for “related employers” and it cannot be the case that the legislature intended to cast the net so wide.[^31]
[40] This said, the line between permissible contracting out and contracting out that will lead to a related employer declaration depends on context, and whether the contracting out is being used to undermine collective bargaining. In Kennedy Lodge, for example, a related employer declaration was made after the employer laid off 92 union members and then engaged another company to hire workers to carry out the same work that had been done by the laid off employees.[^32]
[41] On the other hand, the Board has been reluctant to issue a related employer declaration in respect to a longstanding contracting out arrangement.[^33] Where the union has known of the situation and exercised its bargaining rights in the face of the situation, it may be an issue the union should be required to raise during collective bargaining, and not a “scheme to defeat bargaining rights”.[^34]
[42] What is clear from the cases is that a careful analysis of the context of the contracting out is essential to the analysis, in order to assess the effect of the contracting out on bargaining rights and to assess the employer’s good faith in contracting out.
(ii) Contracting Out as an Unfair Labour Practice
[43] This discussion must be placed in the broader context of the law’s response to conflict respecting contracting out by an employer. These conflicts arise often. They are usually addressed as grievances under a collective agreement or as alleged “unfair labour practices” under s.72(a) of the LRA.[^35]
[44] Subsection 72(a) of the LRA provides:
No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.
[45] A leading case on this issue is Westinghouse, where the Board found: “[i]t is well established in this jurisdiction that absent an express restriction in the collective agreement an employer is not restricted in contracting out or relocating work for genuine business reasons.”[^36] Nevertheless, the Board noted that an employer cannot contract out work “to avoid having to deal with his employees collectively through a trade union or to avoid the possibility, in the abstract, of being subject to economic sanctions”.[^37] To do so would be an unfair labour practice.
[46] In Kennedy Lodge, the Board followed Westinghouse, finding that generally employers may contract out absent an express contrary provision in the collective agreement.[^38] The Board examined the “true or real motive” of the employer in contracting out for evidence of “anti-union motivation.”[^39] The Board found that contracting out all of a “core function”, with the result that unionized employees were terminated, was a basis to infer improper intent.[^40]
[47] In Sunnycrest Nursing Homes, the Board found that the employer subcontracted work and discharged employees to avoid collective bargaining, subvert the bargaining process and defeat the statutory rights of terminated employees.[^41] The Board followed this analysis in Rapid Transformers Ltd.:
The Board has consistently indicated that while an employer is free to expand or contract its business, to contract out its work, or to change methods of production, it may only do so if it is motivated by genuine and legitimate business considerations, rather than a desire to defeat or impede employees in the exercise of their statutory rights.[^42]
[48] I appreciate that the case law reveals “a blurred distinction in principle between an employer’s motivation based on economic considerations and motivation showing an anti-union animus.”[^43] It is neither necessary nor useful to try to reconcile this tension in this decision. In any event, motive is a key inquiry in these cases, and this is determined by examining the impact of the contracting out on the employer, collective bargaining rights, and the history of the issue between the parties. What is crystal-clear from the cases is that a careful analysis of the context of the contracting out is essential to the analysis, to assess the effect of the contracting out on bargaining rights and to determine the employer’s motives in contracting out.
Review of the Board’s Decision
(a) Unreasonably Failing to Consider the History of Collective Bargaining of the Issue of Contracting Out
[49] In this case, the Vice Chair found as follows:
It is trite law that disputes arising from the provisions of the collective agreement or the settlements referenced above are matters within the exclusive jurisdiction of an arbitrator. That includes UNIFOR’s reference to LOU #2.
That does not, of course, end the matter.
Collective agreement provisions and settlements reflect parties’ respective bargaining power. Subsection 1(4) and section 69, on the other hand, address trade unions’ legislated bargaining rights. This engages an analysis separate and distinct from contracting out rights under a collective agreement.
At paragraph 33 in the Board’s decision in Milton Hydro Distribution Inc., [2002] OLRB Rep. July/Aug. 701, (referenced at paragraph 51 in Canadian Union of Skilled Workers v. Ontario Hydro Services Co. et al, supra), the Board stated:
- Counsel for the responding parties submits that the Board should take into account that the union’s collective agreement does not prohibit contracting out, presumably because that somehow diminishes the value of those bargaining rights. I specifically reject that the Board should take into account or somehow value the quality of the bargaining rights in deciding whether to exercise its discretion under section 1(4). The Board’s goal in making such a determination is to preserve bargaining rights that might otherwise be eroded. The Board does not, as part of that exercise, enhance or diminish bargaining rights. If, as counsel for the responding parties submits, the collective agreement places no restriction on contracting out, then Telecom, as an employer, will enjoy the flexibility of such arrangements. But the union is entitled to the preservation of its existing bargaining rights, however limited they might be. …
Further, as stated in paragraph 9 of PCL Contractors Eastern Inc., [1995] OLRB Rep. Oct. 1277, subsection 1(4) and what is now section 69 are specifically designed to deal with work assignment jurisdictional problems which the affected parties are unable to resolve between themselves.
Accordingly, I have not considered any of the provisions in the collective agreement, or the referenced settlements in interpreting subsection 1(4) and section 69. [Emphasis added][^44]
Following this statement, the Vice Chair did not consider the Collective Agreement, the bargaining history, or the parties’ agreements respecting contracting out when considering Enercare’s contracting out to Ganeh, Beaver, Perras and other independent contractors.
[50] The decisions cited by the Vice Chair are clearly distinguishable from this case. For example, in Milton Hydro, following a break-up of the business of the municipal hydroelectric company (a consequence of a province-wide overhaul of the electricity industry), the union sought a declaration that the several corporations resulting from the break-up were related or successor employers. The Board in that case found that:
Although the responding parties did not concede that a factual foundation existed for a declaration that all of the new corporations were a single employer with the Commission, the focus of the responding parties’ evidence and submissions were on whether the Board should exercise its discretion and make the declaration. It would be hard to escape the factual conclusion that all five entities are associated or related activities carried on under common control and direction, although not simultaneously. All are or were owned by the Town of Milton. All are or were operated, at the executive level, by the same people. All of the new corporations operate out of the same premises, sharing staff, and both the premises and the staff are the same ones that operated the Commission. All of the new corporations are, jointly, identified as successors to the Commission in a by-law that emanated from their owner, the Town of Milton. That same by-law identifies all of the new corporations as carrying on the old business of the Commission, and that seems to be the case. [^45]
It was after making these findings that the Board in Milton Hydro found that the absence of a term in the collective agreement should not guide its exercise of discretion.[^46] The context in which that finding was made (which was fully considered by the Board in Milton Hydro) was entirely different than the circumstances before the Vice Chair in this case The “related employers” in Milton Hydro were component parts of a business that had been broken into separate corporations, control of all of which was still held by the same municipal government under common management. In that context, a collective agreement that was silent on the issue of contracting out had no bearing on whether the component businesses were “related” within the meaning of s.1(4) of the LRA.
[51] Canadian Union of Skilled Workers v. Ontario Hydro Services Co.[^47] is a case where the common control of the allegedly related employers was not in issue. The union was seeking to trace bargaining rights from what was once Ontario Hydro to various entities that emerged from its reorganization. The responding parties acknowledged that they were carrying on associated or related businesses or activities under common control and direction. The statutory preconditions for a declaration under s.1(4) were therefore met. The issue in the case was whether the Board should exercise its discretion to declare the companies “related employers”. In considering this issue, the Board said as follows:
The three unions were largely content to rely on the provisions of their collective agreements or generally accepted understandings about trade jurisdiction in the construction industry. (para. 14)
The purpose of section 1(4) is to preserve the meaningful nature of bargaining rights. It serves to protect them from being deliberately subverted, or from being eroded by commercial decisions entirely divorced from labour relations considerations. It is therefore necessary for an applicant to demonstrate that there is either actual or potential erosion of those bargaining rights. In the context of a construction collective agreement, that means looking at the work claimed in or covered by that collective agreement. The erosion need only be minor or be only reasonably likely to happen. The claim to the work in the collective agreement need not be conclusive or obvious on its face. But there must be some actual or potential activity on the part of the related employer which could reasonably be said to fall within the scope of the applicant’s collective agreement. (para.47)
I read the collective agreements (without the benefit of any evidence) as simply a description of the way in which work was organized within Hydro One at the time the collective agreements were executed. It would not be the first collective agreement in the electrical power systems sector that named a division of a corporation (previously Ontario Hydro) as the source of work, notwithstanding that that division had ceased to exist long before the collective agreement expired. In the absence of any evidence, I am not prepared to assume that the collective agreement is so limited that the employer party could eliminate a union’s bargaining rights through internal reorganization. …. (para. 71) [Emphasis added]
Clearly, the Board’s analysis in Ontario Hydro Services Co. was grounded in an examination of the collective bargaining rights, as expressed in the collective agreement and relevant history between the parties.
[52] In both Milton Hydro and Ontario Hydro Services Co., the Board considered the collective agreement and other contextual information to conclude that, in those cases, context did not change the Board’s finding that the companies were commonly owned and controlled, and that the structure could or would lead to loss of bargaining rights. These cases do not stand for the proposition that the terms of the collective agreement and the bargaining history and agreements between the parties are not relevant context for a s.1(4) application.
[53] In my view, this aspect of the Vice Chair’s analysis is unreasonable and led the Board to fail to place the issues before it in a proper context. This, in turn, led to a decontextualized analysis of other issues, rendering the Vice Chair’s analysis unreasonable throughout. As stated by the Supreme Court of Canada in Vavilov:
The decision maker must take the evidentiary record and the general factual
matrix that bears on its decision into account, and its decision must be
reasonable in light of them […]. The reasonableness of a decision may be
jeopardized where the decision maker has fundamentally misapprehended or
failed to account for the evidence before it.[^48]
(b) Conflating Contracting Out Generally with Contracting Out to Ganeh and Beaver
[54] The issue before the Vice Chair was not Enercare’s general practice of contracting out work. The Collective Agreement permits Enercare to contract out, within certain parameters. Enercare retains many different independent contractors, not just Ganeh and Beaver. The Board found that, in some years, this contracting out amounted to as much as 20-30% of Enercare’s available work. During some periods, it was as low as 17-18%. At one point, Enercare had as many as 140 independent contractors. As of the hearing, this total had been reduced to 90, not because of a reduction in contract work, but because, for efficiency reasons, Enercare wanted to deal “with larger contractor entities rather than individual small operators”.[^49]
[55] The Board declined to find that another independent contractor, Perras, is a “related employer” pursuant to LRA, s.1(4). What is it about Ganeh and Beaver and their relationship with Enercare that distinguishes them, on the one hand, and Perras and other independent contractors used by Enercare, on the other? Not the impact on bargaining rights: there are no findings of the impact of work done by Ganeh and Beaver that can be distinguished from the Board’s findings respecting Enercare’s overall practice of contracting out. Not the way in which control is exercised over independent contractors or their workers: there were no findings that Ganeh and Beaver and their employees were directed any differently by Enercare than those of other independent contractors. Not Enercare’s motive in contracting out: the Board made no finding that Enercare’s motive in contracting out to Ganeh and Beaver was any different than its motive in contracting out to Perras and to other independent contractors. Only one factor seems to differentiate Ganeh and Beaver from Perras: Enercare is Ganeh’s only customer and makes up between 95% to 98% of Beaver’s business. This is the single distinction that drives the Board’s differential treatment of Ganeh and Beaver, on the one hand, and Perras, on the other.
[56] The importance of Enercare to the business of Ganeh and Beaver may be a factor that can be considered when deciding the issue of “control”, which I address below. At this point, however, I address the issue for a different purpose. The history of Enercare’s contracting out is necessary context to appreciate the reasons Ganeh and Beaver came into existence, and why they operate as they do. Enercare’s business has peaks and valleys – both seasonal and weekly. The parties have recognized this and have agreed that Enercare may contract out work to address these peaks and valleys. Other solutions could have been devised by the parties for this issue – solutions which could have restricted Enercare’s contracting out, but which would have required UNIFOR’s members to work on schedules that better match the demands for Enercare’s services. The parties chose the path of using independent contractors, and the Collective Agreement and LOUs reflect their approach to these issues. It was in this context that Enercare’s predecessor companies encouraged the principal of Ganeh – a former manager at Enercare – to leave the company and create Ganeh, which in turn led to the creation of Beaver. The companies were created to do independent contractor work for Enercare.
(c) Assessing Enercare’s “Control” over Ganeh and Beaver without Considering the Context
[57] As reflected in my discussion of the jurisprudence, above, the OLRB has generally not found independent contractors to be related employers pursuant to LRA, s.1(4). Where an employer contracts out work to an affiliated company, the OLRB is more likely to find the companies to be “related employers”.
[58] Also as stated above, the Board has been reluctant to issue a related employer declaration in respect to a longstanding contracting out arrangement.[^50] Where the union has known of and exercised its bargaining rights in the face of the situation, it may not be a “scheme to defeat bargaining rights.”[^51] This assessment can only be made in light of the history of the contracting out issue between the parties. Here, where the Vice Chair expressly declined to consider that history, the finding that Ganeh and Beaver are “related” to Enercare was made without considering crucial context.
[59] A review of the cases makes it clear that common ownership and management is almost always required for a declaration that employers are “related”. The Vice Chair relied upon Kennedy Lodge, where the employer laid off employees and then hired a contractor to perform the work of those employees. The Board in Kennedy Lodge took a close look at the context of the employer’s conduct and concluded that the contracting out was not permitted by the collective agreement: the Board’s finding pursuant to s.1(4) was in the alternative to this principal finding.[^52] The Board went on to find that “control” within the meaning of s.1(4) includes “fundamental control over the core activities of the business”.[^53] It then found, on the issue of employer motivation, that the contracting out
was entered into for no other reason than to allow Kennedy to replace its unionized employees with non-union employees and thereby to extricate itself from its collective bargaining obligations in respect of its aides and to thereby avoid having to pay the wages and benefits under the collective agreement.[^54]
[60] I agree with the holding in Kennedy Lodge that the employer’s contracting out, motivated as it was to avoid collective bargaining obligations, was properly addressed as a violation of the collective agreement. An alternative route would have been to find the contracting out to be an unfair labour practice. It was not necessary to decide whether the independent contractor was a “related employer” pursuant to s.1(4). Even if it was thought that the Board’s alterative basis for its finding was necessary to the result, it “pushes the envelope” for jurisprudence over what will constitute “control” in a context where the labour relations purpose for a declaration was made out by the employer’s motivation.
[61] In J.H. Normick, also relied upon by the Vice Chair, the employer laid off its employees in one geographic area and then arranged for an independent contractor to hire those same employees to do the same kind of work for the employer in another geographic region. In the context of the history of bargaining between the union and the employer, the Board was satisfied that the structure of the arrangement was designed to defeat or impede collective bargaining rights and made a declaration pursuant to s.1(4). Again, the history of collective bargaining between the employer and the union was critical context for the disposition of the case.
[62] As the Vice Chair noted at the start of her reasons in the case at bar,
As is abundantly clear from the numerous cases referred to by the parties, (set out below) decisions pursuant to subsection 1(4)… are essentially fact-driven, and careful findings of fact must be the foundation for those decisions.[^55]
This is unquestionably true, as my review of the cases above illustrates. While it may not be necessary to show common ownership, the functional relationship and underlying motivations for a contracting out relationship must be examined in careful detail, including full consideration of the bargaining history relevant to the contracting out.
[63] It is neither necessary nor desirable to attempt reconciliation of all the precedents on this issue: the jurisprudence is substantial and, frankly, not easily reconciled. The Board is not bound by other Board decisions, and the court does not wish to restrict the Board’s flexibility in assessing each case before it on the basis of the entire context of the case. However, the following observations may be borne in mind.
[64] Where companies are not affiliated – that is, where they do not have common ownership and common company control – a declaration that the companies are “related employers” is not likely to be made unless it can be shown that the contracting out is motivated by a desire to avoid established bargaining rights. Terminating employees and then rehiring them through another company has been found in some cases to ground such a finding.
[65] Here there are many factors that cast doubt on the reasonableness of the Vice Chair’s finding that Ganeh and Beaver are “related employers” to Enercare:
a. Ganeh and Beaver do not have common ownership with Enercare.
b. The businesses of Ganeh/Beaver and Enercare do not have common management.
c. Ganeh/Beaver and Enercare do not have common control over labour relations bargaining and decisions.
d. No employees of Enercare were laid off and then hired by Ganeh or Beaver;
e. Contracting out a portion of Enercare’s work has been part of Enercare’s business for many years, to reflect the uneven demand for its services.
f. Beaver and Ganeh have been performing some of this contracting work for more than a decade.
g. Beaver and Ganeh are currently two of ninety Enercare contractors; at one point there were as many as 140 Enercare contractors.
h. The relationship between Enercare and Ganeh/Beaver is no different, so far as Enercare and its employees are concerned, than the relationship Enercare has with its other contractors.
i. The parties have entered into two LOUs that address directly the limits on Enercare’s ability to contract out work.
[66] It is in this context that a distinction was drawn by the Vice Chair between Ganeh/Beaver and Perras. Virtually all Ganeh/Beaver’s business is with Enercare. Roughly 30% of Perras’ business is with Enercare. It is apparent that this distinction does not affect the bargaining relationship between Enercare and UNIFOR. As found by the Vice Chair, Enercare did not require Ganeh/Beaver to work exclusively for Enercare. Nothing prevents Ganeh/Beaver from performing other work. It is solely a management decision by Ganeh/Beaver to work almost exclusively for Enercare, a decision which Enercare did not control.
[67] I note that this distinction was not the basis of s.1(4) declarations in Kennedy Lodge and J.H. Normick. Those cases do not disclose whether the contractors had other employees doing other work. In Kennedy Lodge the position of the contractor was akin to a staffing company that provided contract workers to be managed by the customer, and conceptually there is no reason the employer could not have been engaged in providing those services elsewhere. On the facts in J.H. Normick, it is not clear whether the contractor, an individual asked to hire unionized workers laid off by the employer, had other similar operations for other customers or for his own account, but conceptually there is no reason that he might not have had. The exclusivity of the engagement was not part of the analysis in either case.
[68] Ultimately it is up to the Board to weigh all the facts to decide whether two employers are “related”, and I do not conclude that economic dependence is not a relevant factor for consideration. I also acknowledge that this economic dependence was not the only factor that underlay the Vice Chair’s decision. However, I do find that the failure to take account of bargaining history and the history of contracting out, including the terms of the collective agreement and the LOUs, undercuts the reasonableness of the Vice Chair’s conclusion. If context had been taken into account, the decision might well have been different.
[69] The reasonableness review of the Vice Chair’s decision in this court is not a “rubber-stamping process or a means of sheltering administrative decision-makers from accountability:” it is a “robust form of review.”[^56] Where the reasons for decision contain a fundamental gap or an “unreasonable chain of analysis”, the decision may be found to be unreasonable.[^57]
[70] It is not sufficient for this court to conclude that there is “some evidence” supporting the decision below, but rather the decision must be justified on the basis of the Vice Chair’s analysis of the overall factual matrix. Put another way, the issue in this court is not whether the decision below could be justified on the record before the Vice Chair, but rather, whether the findings and analysis below justify the decision.
Sufficiency of Reasons
[71] The applicants also argued that the Board’s reasons are insufficient. I do not accept this submission. The reasons clearly set out the Vice Chair’s factual findings, the applicable legal principles, and the conclusions the Vice Chair drew from the jurisprudence and the evidence. I have found that the Vice Chair’s analysis – which was stated clearly – was unreasonable in one major respect – the treatment she gave to bargaining history and the terms of the collective agreement and the LOUs – and in general the history of contracting out between the parties. I have also found that the Vice Chair’s failure to consider the entire factual matrix led to unreasonable conclusions at various points in her reasoning. However, just because I have concluded that the decision was unreasonable does not mean that the reasons were insufficient.
[72] The Vice Chair fully discharged her task to explain why she came to the conclusion she did, and in so doing she placed this court in a position to conduct a meaningful review of her decision. The parties understood full well why the Vice Chair decided as she did. The applicants were able to articulate precisely why the Vice Chair’s analysis was unreasonable.
Remedy
[73] The applicants ask this court to substitute a finding that Enercare and Ganeh/Beaver are not related employers within the meaning of LRA, s.1(4). It is not for this court to decide the case on the merits. The result is not a foregone conclusion. In Vavilov, the Supreme Court of Canada confirmed that review courts are not to usurp the role assigned by legislatures to administrative tribunals: [t]he “role of the courts in these circumstances is to review and they are, at least as a general rule, to refrain from deciding them themselves.”[^58] Exceptional cases, like this court’s decision in Nation Rise Wind Farm v. Ontario[^59] fall within the ambit of exceptional circumstances described by the Supreme Court of Canada in Vavilov:
[T]here are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended…. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose…. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed.[^60]
[74] The outcome here is not “inevitable”. I appreciate that these issues have been outstanding for a long time. In the context of a labour relations dispute, where there is a continuing relationship between the parties that will be affected by the result, the matter should go back for determination below.
Order
[75] The applications for judicial review are granted, the decision below is set aside, and the matter is returned for a fresh hearing before a different Vice Chair.
[76] The respondent UNIFOR shall pay each of the applicant’s costs of $2,500, inclusive, as agreed. There shall be no costs for or against the OLRB.
___________________________ D.L. Corbett J.
I agree:___________________________ Ducharme J.
I agree:___________________________ Petersen J.
Date Released: March 26, 2021
APPENDIX “A”
Labour Relations Act, SO 1995, c.1, Sch. A.
1 (4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
1 (5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
Sale of business
69 (1) In this section,
“business” includes a part or parts thereof; (“entreprise”)
“sells” includes leases, transfers and any other manner of disposition, and “sold” and “sale” have corresponding meanings. (“vend”, “vendu”, “vente”)
Successor employer
(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.
Same
(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 16 or 59, as the case requires.
Powers of Board
(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,
(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or
(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold,
the Board may, upon the application of any person, trade union or council of trade unions concerned,
(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and
(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.
Same
(5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer.
Same
(6) Despite subsections (2) and (3), where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,
(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);
(b) determine whether the employees concerned constitute one or more appropriate bargaining units;
(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and
(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.
Notice to bargain
(7) Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 16.
Powers of Board before disposing of application
(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.
Where employer not required to bargain
(9) Where an application is made under this section, an employer is not required, despite the fact that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application.
Effect of notice of declaration
(10) For the purposes of sectuons 7, 63, 65, 67 and 132, a notice given by a trade union or council of trade unions under subsection (3) or a declaration made by the Board under subsection (6) has the same effect as a certification under section 10.
Successor municipalities
(11) Where one or more municipalities as defined in the Municipal Affairs Act are erected into another municipality, or two or more such municipalities are amalgamated, united or otherwise joined together, or all or part of one such municipality is annexed, attached or added to another such municipality, the employees of the municipalities concerned shall be deemed to have been intermingled, and,
(a) the Board may exercise the like powers as it may exercise under subsections (6) and (8) with respect to the sale of a business under this section;
(b) the new or enlarged municipality has the like rights and obligations as a person to whom a business is sold under this section and who intermingles the employees of two of the person’s businesses; and
(c) any trade union or council of trade unions concerned has the like rights and obligations as it would have in the case of the intermingling of employees in two or more businesses under this section.
Power of Board to determine whether sale
(12) Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one employer to another, the Board shall determine the question and its decision is final and conclusive for the purposes of this Act.
Duty of respondents
(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
CITATION: Enercare Home & Commercial Services v. UNIFOR, Local 175, 2021 ONSC 606
COURT FILE NOS.: 515/17 and 521/17
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ducharme and Petersen JJ.
BETWEEN:
Enercare Home and Commercial Services
Limited Partnership, Ganeh Energy Services
Ltd. and Beaver Energy Services Ltd.
Applicants
– and –
UNIFOR, Local 175, Perras Mechanical Services Ltd. and Ontario Labour Relations Board
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: March 26, 2021
[^1]: Release of this decision was delayed in order to receive submissions respecting the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”) and as a result of the COVID-19 pandemic.
[^2]: Labour Relations Act, 1995, SO 1995, c.1, Sch. A. Pertinent provisions are set out in Schedule “A” to this decision.
[^3]: Deloitte Restructuring v. UFCW Local 175, 2021 ONSC 1260 (“Deloitte”).
[^4]: Bankruptcy and Insolvency Act, RSC 1985, c. B-3, as amended (the “BIA”).
[^5]: UNIFOR Local 975 v. Enercare Home & Commercial Services Limited Partnership, 2017 36002 (ON LRB).
[^6]: Judicial Review Procedure Act, RSO 1990, c. J.1, ss. 2 and 6.
[^7]: Vavilov, para. 23.
[^8]: UNIFOR Local 975 v. Enercare Home & Commercial Services Limited Partnership, 2017 36002 (ON LRB), para. 354.
[^9]: Deloitte, at para. 16.
[^10]: An Act to Amend the Labour Relations Act, S.O. 1970, c. 85, s. 2(6).
[^11]: See Deloitte, paras. 6 to 8; Task Force on Labour Relations, Canadian Industrial Relations (Ottawa: Queen’s Printer, 1968).
[^12]: H. Carl Goldenberg, Report of the Royal Commission on Labour-Management Relations in the Construction Industry (Toronto: 1962), at p. 73 (the “Goldenberg Report”).
[^13]: Neal B. Sommer and Stewart D. Saxe, Understanding the Labour Relations Act, 2nd ed. (Aurora, ON: Canada Law Book, 2001), p.100.
[^14]: Industrial-Mine Installations Ltd. v. U.S.W.A., [1972] OLRB Rep. 1029, para. 9.
[^15]: Industrial-Mine Installations Ltd. v. U.S.W.A., [1972] OLRB Rep. 1029, paras. 9, 11.
[^16]: Ironworkers' District Council of Ontario v. Brant Erecting & Hoisting, [1980] O.L.R.B. Rep. 945, paras. 12, 15.
[^17]: Lester (W.W.)(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 SCR 644 at 683-684, per McLachlin J. (as she then was).
[^18]: United Brotherhood of Carpenters and Joiners of America, Local 27 v. Century Store Fixtures Ltd., [1990] OLRB Rep. 1119, para. 22.
[^19]: Lithographers & Photoengravers International Union, Local 12-L v. Walters Lithographic Co., [1971] OLRB Rep. 406, para. 21; followed in Century Store Fixtures Ltd., [1990] OLRB Rep. 1119, para. 22.
[^20]: Penmarkay Foods Ltd. v. R.W.D.S.U., Local 414, 1984 CarswellOnt 1085, para. 41.
[^21]: C.L.A.C. v. Jen-Ry Utility Contracting Co., 1984 CarswellOnt 1146, para. 16; see also Ontario Legal Aid Plan v. Ontario Public Service Employees Union (1991), 1991 7201 (ON CA), 6 OR (3d) 481 (CA).
[^22]: Ontario Legal Aid Plan v. Ontario Public Service Employees Union (1991), 1991 7201 (ON CA), 6 OR (3d) 481, para. 16 (CA).
[^23]: Ontario Legal Aid Plan v. Ontario Public Service Employees Union (1991), 1991 7201 (ON CA), 6 OR (3d) 481, para. 17 (CA).
[^24]: Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304 v. The Charming Hostess Inc., 1982 824 (ON LRB), paras. 46-47; Judy Fudge and Kate Zavitz, “vertical Disintegration and related Employers: Attributing Employment-Related Obligations in Ontario” (2006-2007) 13 CLELJ 107 at 142.
[^25]: B.A.C., Local 2 v. Etobicoke (City) Public Library Board, 1989 OLRB Rep. 935, para. 88.
[^26]: Jules e. Boch, Robert E. Salisbury, Leslie A. Brown and Stephen McArthur, Canadian Construction Labour and Employment Law (Toronto: LexisNexis Canada, 1997), paras. 4.20, 4.52; Sommer & Saxe, Understanding the Labour Relations Act (2nd ed., 2001), p. 101.
[^27]: See, for example, C.J.A., Local 2486 v. MacIsaac Mining and Tunneling Co., [2000] OLRB Rep. 638; Carpenters' District Council of Toronto v. Hardrock Forming Co., [1987] OLRB Rep. 1003; and C.J.A., Local 2995 v. J.H. Normick Inc., [1979] OLRB Rep. 1176.
[^28]: Judy Fudge & Kate Zavitz, “Vertical Disintegration and Related Employers: Attributing Employment-Related Obligations in Ontario” (2006) 13:1 CLELJ 107 (“Fudge & Zavitz”) at 142.
[^29]: Teamsters Local Union No. 419 v. Metro Waste Paper Recovery Inc., (Metro Municipal Recycling Services Inc.), 2009 60617 (ON LRB), para. 112.
[^30]: F.A.S.W.O.C. v. Federated Building Maintenance Co., [1985] OLRB Rep. 1585, para. 36.
[^31]: F.A.S.W.O.C. v. Federated Building Maintenance Co., [1985] OLRB Rep. 1585, para. 33.
[^32]: S.E.I.U., Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931; Fudge & Zavitz, p. 142.
[^33]: York (Regional Municipality) v. ATU, Local 113, [2012] O.L.R.B. Rep. 1115.
[^34]: York (Regional Municipality) v. ATU, Local 113, [2012] O.L.R.B. Rep. 1115, para. 50.
[^35]: The legal analysis in the cases is a bit muddy, and it is not necessary to address that aspect of the jurisprudence in this decision. Where Boards have considered whether there was an “unfair labour practice” without making it clear precisely which provision in the LRA grounded the finding, I accept the suggestion of the Hon. George W. Adams that the “operative provision” is s.72(a): Canadian Labour Law, 2nd ed (Toronto: Thomson Reuters, 1993) (“Adams”), para. 10.110.
[^36]: United Electrical, Radio & Machine Workers of America v. Westinghouse Canada Limited, , [1980] OLRB. Rep. 577, para. 37 (ON LRB).
[^37]: United Electrical, Radio & Machine Workers of America v. Westinghouse Canada Limited, [1980] OLRB. Rep. 577, para. 63.
[^38]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, para. 61.
[^39]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, para. 62.
[^40]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, paras. 64-65.
[^41]: Canadian Union of Public Employees v. Sunnycrest Nursing Homes Ltd., [1982] OLRB Rep. 261, para. 31.
[^42]: C.E.P. v. Rapid Transformers Ltd., [1999] OLRB Rep. 675, para. 50.
[^43]: Adams, para. 10.610.
[^44]: UNIFOR Local 975, paras. 271-276.
[^45]: Power Workers’ Union - Canadian Union of Public Employees, Local 1000, C.L.C. v. Milton Hydro-Electric Commission, 2002 28840 (ON LRB), para. 30.
[^46]: Power Workers’ Union - Canadian Union of Public Employees, Local 1000, C.L.C. v. Milton Hydro-Electric Commission, 2002 28840 (ON LRB), para.33.
[^47]: Canadian Union of Skilled Workers v. Ontario Hydro Services Co./Hydro One Inc., 2003 31296 (ON LRB).
[^48]: Vavilov, para. 126.
[^49]: UNIFOR Local 975, para. 42.
[^50]: York (Regional Municipality) v. ATU, Local 113, [2012] OLRB Rep. 1115.
[^51]: York (Regional Municipality) v. ATU, Local 113, [2012] OLRB Rep. 1115, para. 50.
[^52]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, para. 52.
[^53]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, para. 56.
[^54]: S.E.I.U, Local 204 v. Kennedy Lodge Inc., [1984] OLRB Rep. 931, para. 56.
[^55]: UNIFOR Local 975, para. 21.
[^56]: Vavilov, paras. 12, 13.
[^57]: Vavilov, paras. 12, 72, 86-87, 96.
[^58]: Vavilov, para. 83.
[^59]: Nation Rise Wind Farm Limited Partnership v. Ontario (Minister of the Environment, Conservation and Parks), 2020 ONSC 2984 (Div. Ct.). See also Longueépée v. University of Waterloo, 2020 ONCA 830.
[^60]: Vavilov, para. 142.