Aluma Systems Inc. v. Labourers’ International Union of North America, 2021 ONSC 6413

CITATION: Aluma Systems Inc. v. Labourers’ International Union of North America, 2021 ONSC 6413

DIVISIONAL COURT FILE NO.: 456/20

DATE: 20211019

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, D. Edwards and Matheson JJ.

BETWEEN:

ALUMA SYSTEMS INC.

Applicant

– and –

LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL AND LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059, AND BRUCE POWER LP, AND GENERAL ELECTRIC CANADA INC., AND CARPENTERS’ DISTRICT COUNCIL OF ONTARIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AND ONTARIO LABOUR RELATIONS BOARD

Respondents

Frank J. Cesario, Scott G. Thompson and Amanda P. Cohen, for the Applicant

Lorne Richmond and Kristaq Lala, for the Respondent Labourers

Douglas Wray, for the Respondent Carpenters

Allison E. MacIsaac, for the Respondent General Electric

Aaron Hart¸ for the Respondent Ontario Labour Relations Board

HEARD at Toronto (by videoconference): September 21, 2021

Swinton J.

Overview

[1] Aluma Systems Inc. (the “applicant”) seeks judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated March 9, 2020, which ruled that it had wrongly assigned scaffolding tending work to the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (“Carpenters”) rather than the Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 1059 (“Labourers”).

[2] For the reasons that follow, I would dismiss the application, as the Board’s decision was reasonable.

The Context

The Board’s Task in Resolving Jurisdictional Disputes

[3] This proceeding began with a complaint filed by the Labourers with the Board pursuant to s. 99 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“LRA”). Section 99 deals with jurisdictional disputes respecting work assignments, and provides the Board with the power, pursuant to s. 99(5), to “make any interim or final order it considers appropriate after consulting with the parties.”

[4] The Board described its task in determining jurisdictional disputes in Labourers’ International Union of North America, Local 1089 v. Total Support Services Ltd., 2004 19712 (OLRB) at paras. 13 to 14:

[13] … In the end, the Board is not adjudicating a statutory or contractual right. It is adjusting the competing claims of two unions, both of whom have some kind of legal right to the work they seek to have their members perform.

[14] The factors usually considered by the Board (e.g. area practice of other contractors in a given area, practice of the particular employer engaged in the dispute, skills, safety, economy and efficiency) have nothing to do with the rights of each party. They are the basis of a decision about whose rights it is appropriate to give precedence to. In the end, it is an exercise of judgement about appropriateness rather than adjudication and enforcement of rights.

[5] Jurisdictional complaints like this one are heard by members of the Board who are specialists in determining construction industry disputes. The process is by way of consultation – that is, on the basis of written evidence and submissions, supplemented by oral submissions. The onus is on the party challenging the work assignment to demonstrate that it was wrong.

[6] In determining the appropriate assignment of the disputed work in a particular case, the Board considers a number of factors, some of which are mentioned in the quote above and others that were set out in the Board’s decision in the present case (at para. 12):

• Collective bargaining relationships;
• Trade agreements between the competing unions;
• Area practice;
• Employer practice;
• Safety, skills and training; and
• Economy and efficiency.

None of the factors are determinative, and each case turns on the particular facts before the Board.

The Factual Background in this Case

[7] The work in dispute in the present case is “general tending” in relation to scaffolding work in connection with the Stator Rewind and Rotor Swap Project at the Bruce Power nuclear generating station near Tiverton, Ontario. That project is part of a large, multi-year refurbishment project of the turbines at the site. This is work in the Electrical Power Systems (“EPS”) sector of the construction industry.

[8] There is no dispute that the installation and dismantling of scaffolds is work properly assigned to the Carpenters. However, there is a dispute about tending – that is, the handling and movement of scaffolding and hoarding materials from the drop point or storage site on the work site to the work face, where the erection, modification or dismantling of the scaffolding occurs. The Labourers claim that general tending work should be assigned to them, in accordance with area practice in the region, Board Area 3.

[9] General Electric Canada Inc. is the general contractor for the project. On September 5, 2018, it engaged in a markup meeting in which it tentatively assigned all the scaffolding work to the Carpenters. The scaffolding equipment for the job is owned by Bruce Power.

[10] Shortly thereafter, Aluma was awarded a subcontract for the scaffold work. Although Aluma is bound by provincial collective agreements with both the Carpenters and the Labourers in the ICI and EPS sectors, its practice is to employ Carpenters for all its scaffolding work. Accordingly, it assigned both the scaffolding and tending work to the Carpenters. This caused the Labourers to launch their complaint to the Board.

The Board’s Decision

[11] The Board Vice Chair described the factors that are applied in jurisdictional disputes, noting that the Board has a discretion as to the weight to be given to the different factors in a particular case. He noted that area practice evidence tends to be the most important factor, explaining at para. 13:

This is because area practice evidence, where it is clear, substantial and consistently in favour of one party’s position, demonstrates to the Board that the parties themselves have, over time, determined how particular bundles of work should be assigned and how such work should be carried out in a manner that is least disruptive to the efficient and safe completion of such work.

[12] The Vice Chair identified the contentious issue before him as the proper assessment of area practice. He observed that the area practice in Board Area 3 focussed on the practice at the Bruce Power site, explaining (at para. 8):

Though the Bruce Power site occupies one footprint in just one of the six counties that make up Board Area 3, it is such a massive ongoing construction site, and in many respects unique given its scale and size in the electrical power sector in Board Area 3, that its own site work practices usefully inform the issues raised in this case.

[13] The Labourers presented evidence and argument to the effect that the area practice at the Bruce Power site was to assign scaffolding tending work to their members. The Carpenters, Aluma and General Electric all argued that the area practice to be considered was the practice of specialty scaffolding contractors. Aluma took the position that it was a specialty scaffolding contractor, and its practice was to assign tending work to Carpenters.

[14] The Vice Chair noted that as a general matter, the Board’s jurisprudence divides scaffolding work so that the Carpenters erect and dismantle the scaffolding, and the Labourers tend the work. However, in some cases, the Board has considered the practice of specialty scaffolding contractors – that is, contractors whose only business is the erection and dismantling of scaffolds. These specialty contractors may, in appropriate cases, have the same workers do both the erection/dismantling work and the tending work.

[15] However, the Vice Chair rejected the argument that the specialty scaffolding contractor “exception” should apply in the present case, and thus he did not make a determination whether Aluma was a specialty scaffolding contractor. After considering past cases cited to him, he explained that there was a theme in those cases (at para. 20):

… where the scaffolding work is of a reasonably discreet [sic] and continuous nature and it would be inefficient to inject labourers into the process of transporting scaffolding components from the point on a work site where they are stored or located (or to which they have been delivered) to and from the erection or dismantling point, and the scaffolding company would not normally employ labourers, then they need not do so. [Emphasis added]

[16] In his view, the specialty scaffolding contractor exception did not apply, because he was not satisfied that the work subcontracted to Aluma was of a reasonably discrete and continuous nature so that it would be inefficient to inject members of the Labourers into the process. Rather, it was part of a larger overall project. As well, he concluded that the evidence demonstrated that there was an “overwhelmingly consistent approach” at the Bruce Power site, where scaffolding tending work had been assigned to Labourers. Accordingly, the Vice Chair upheld the complaint and ruled that the tending work should have been assigned to the Labourers.

The Standard of Review

[17] There is no dispute that the applicable standard of review in this application is reasonableness.

The Issues

[18] The applicant, supported by the Carpenters and General Electric, argues that the Board’s decision is unreasonable in three ways:

1. The Board failed to follow its case law with respect to area practice, by failing to consider the area practice of specialty scaffolding contractors.
2. The Board misapprehended key evidence, particularly relating to economy and efficiency.
3. The Board’s analysis is not internally coherent and lacks rationality.

Analysis

The Board’s decision is not inconsistent with the case law on area practice

[19] The main challenge made to the Board’s decision is that it lacks consistency, rationality and intelligibility because the Vice Chair failed to determine area practice on the basis of the practice of specialty scaffolding contractors. The applicant argues that the specialty scaffolding contractor exception is well established in the Board jurisprudence, and the Vice Chair has failed to explain why he is departing from this approach.

[20] The applicant points to Vavilov, emphasizing that an administrative decision maker’s reasons for decision must be internally coherent (at para. 85). In determining reasonableness, the Supreme Court of Canada has stated that one consideration is whether the decision is consistent with past jurisprudence of the decision maker (at para. 131). The Court acknowledged that an administrative decision maker is not generally bound by stare decisis, but stated:

Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.

[21] The applicant argues that the Board’s jurisprudence with respect to the factor of area practice requires the Board to treat specialty scaffolding contractors differently from general contractors. In particular, the applicant relies on the Board’s decision in Greater Ontario Regional Council of Carpenters, Drywall and Allied Workers, Local 2222 v. Hydro One Network Services, 2011 11490. In deciding whether to consider the practice of general contractors or specialty scaffolding contractors in determining area practice, the Board stated there, “… if the work in dispute was assigned by a specialty scaffolding contractor, the area practice of relevance is the area practice of specialty scaffolding contractors” (at para. 26, quoting an earlier decision in Aecon Construction Group Inc. v. Labourers' International Union of North America, Local 506, 2008 7449 at para. 15). The Board then stated that the area practice of general contractors did not assist (at para. 27).

[22] The applicant submits that the Vice Chair in the present case purported to apply the past case law, which required him to consider whether the employer is a specialty scaffolding contractor, but then he failed to follow it. For that reason, the decision is illogical and incoherent. Instead of focusing on the area practice concerning tending work in relation to scaffolding at Bruce Power, he should have determined the nature of the employer (that is, whether Aluma is a specialty scaffolding contractor), the nature of the contested work, the practice of the employer, the area practice (based on the practice of specialty scaffolding contractors), and other factors such as economy and efficiency.

[23] I disagree with the submission that the Vice Chair erred in his treatment of past cases. In my view, he engaged with that jurisprudence and made a decision that is respectful of the Board’s jurisprudence. In the paragraphs that follow, I will set out his chain of analysis in some detail, as judicial review on a standard of reasonableness must focus on the reasons of the decision maker.

[24] The Vice Chair considered a number of cases, including Hydro One, the case referred to by the applicant above. He synthesized the jurisprudence with respect to the specialty scaffolding contractor exception in the following paragraphs (at paras. 17-18, with his emphasis):

17. The Board’s extensive and varied jurisprudence on scaffold tending work has, as a general matter, favoured a work assignment division wherein carpenters erect and dismantle scaffolding and labourers tend that work. By “tend”, the Board here means (again, generally) the handling and moving of scaffolding materials with respect to the erection and dismantling of scaffolding from wherever scaffolding components and equipment are stored on the work site to and from the work face, as a species of general tending (as opposed to trade-specific tending). Within this general approach, however, an exception has emerged in some cases where a specialty scaffolding contractor is involved in the work. In these exception cases, again speaking generally, where a contractor or sub-contractor is engaged on a construction site only for the purposes of erecting and dismantling scaffolding, that contractor or sub-contractor may, in the appropriate circumstances, have the same employees both tend the work and perform the erection and dismantling work. As can be seen in the significant number of cases on this topic, such specialty scaffolding contractors tend to have a collective agreement relationship only with a local of the carpenters’ union.

18. The “appropriate circumstances”, as referenced above, are typically (again, speaking generally) that the scaffolding work will involve the contractor delivering the scaffolding materials to site, erecting the scaffolding (usually with the crew that delivered the materials), and then returning to the site to dismantle the scaffolding and remove it from the work site when it is no longer required. In such circumstances, the economy and efficiency factor tends to be essentially determinative of the JD dispute.

[25] The Vice Chair then examined Hydro One and gave his explanation for the result in that case. He noted that the Board member there had considered the area practice of the specialty scaffolding contractor as one factor in deciding the appropriate work assignment. He also noted that a second important factor was economy and efficiency. The project was of short duration, and the Board had concluded, “Moving the material is a component of the work but in any event the entire process of erecting and dismantling the scaffolding and handling the tarps was part of an entire process with a relatively short duration” (at para. 35). Accordingly, there was not sufficient work to be shared between the two trades.

[26] The Vice Chair then considered a number of specialty scaffolding contractor cases that had been cited to him and explained that there was a theme running through them (at para. 20):

That theme is this: where the scaffolding work is of a reasonably discreet and continuous nature and it would be inefficient to inject labourers into the process of transporting scaffolding components from the point on a work site where they are stored or located (or to which they have been delivered) to and from the erection or dismantling point, and the scaffolding company would not normally employ labourers, then they need not do so. The Board takes no issue with any of these cases or the propositions found within them. [Emphasis added]

[27] This is not a case where the Board has departed from its jurisprudence. The Vice Chair addressed the submissions and jurisprudence about speciality scaffolding contractors, along with the other factors raised by the past cases, concluding that the business status or character of any particular contractor is not a “trump card” over all other circumstances. On the facts before him, he found that the Stator Rewind and Rotor Swap Project did not resemble the projects with speciality scaffolding contractors referred to in prior cases.

[28] The Vice Chair has examined the past cases, including Hydro One, and he has reasonably concluded that there is not a fixed rule that whenever a specialty scaffolding contractor is the employer, that is always determinative of area practice. Rather, the cases turn on the facts and evidence and the factors that are persuasive in each situation.

[29] The applicant relies on an isolated excerpt from Hydro One, quoted above. The Board jurisprudence that gave rise to that excerpt goes back to Total Support. Significantly, in Total Support, the Board noted that the categories of general and specialty contractor were not watertight, and the inquiry should be into the type of work being performed as well as the contractor (at para. 82). The Vice Chair’s approach is consistent with this and other cases where the Board has emphasized that the focus should be the work in dispute.

[30] Similarly, in Carpenters District Council of Ontario, United Brotherhood of Carpenters and Joiners of America and Carpenters and Allied Workers Local 27 v. Labourers' International Union of North America, 2007 52343 (SNC-Lavalin), the Board stated (at para. 70):

Every case must be decided on its own facts. The case law indicates that there is some recognition of the practice of specialty scaffolding contractors in the Province of Ontario, but it has not been identified in at least one area. The Board’s focus on practice within a Board Area reflects a desire to give weight to the local patterns of bargaining and work assignment. It is therefore necessary to examine the practice in each area in which a dispute arises.

[31] The Vice Chair in the present case then turned to the specific evidence and explained why it would be inappropriate to apply the specialty scaffolding contractor exception here. He stated (at para. 83):

In this case, though, the Board is not satisfied that the first thematic criteria set out above, that is, that the Scaffolding Work in this case was or is of a reasonably discreet and continuous nature that it would be inefficient to inject members of the Labourers into the process of transporting scaffolding components from the point on the work site where they are stored to and from the erection or dismantling point, applies. The Stator Rewind and Rotor Swap project is a component part of a much larger overall project and all the scaffolding componentry used is owned by and already on-site at Bruce Power. In other words, this case does not resemble those projects where a specialty scaffolding contractor brings scaffolding componentry and an erection crew to a site, erects the scaffolding and then leaves the project until the work on the scaffolding is complete (whether or not Aluma would normally employ labourers is not an especially important consideration in this case given the labour requirements clause described at paragraph 6(i), above).

[32] The Vice Chair then examined the extensive evidence advanced respecting the assignment of tending work between Labourers and Carpenters at the Bruce Power site (at para. 22):

More importantly in this case, though, is that the overwhelmingly consistent approach for scaffold work on the Bruce Project site is and has been that scaffolding tending work is and has been executed by members of the Labourers. In the many area practice examples the Labourers identified and relied on there are many where, as far as the Board can tell from the materials filed, the scaffolding erection and dismantling work involved is essentially indistinguishable from the same work that was (or is) involved in the Stator Rewind and Rotor Swap project. In contrast, the parties opposite identify only four projects from the past 10 years or so, with the most recent occurring in 2017, where carpenters tended carpenters in respect of scaffolding work at the Bruce Power site. Further, in the declarations the Carpenters filed that describe these projects, other than giving the project name and the year in which it occurred and other than saying that carpenters tended carpenters on the scaffolding work and that their doing so was efficient, very few particulars are offered about the work. Based on the declarations filed, and apart from the circumstances that arose in the Hydro One Network Services, supra case described above, the Board has no way of knowing if the scaffolding work involved in these projects that run counter to the prevailing trend at the Bruce Power site was small or large in scale, and whether or not the tending, erection and dismantling of the scaffolding was more or less a single and continuous process.

[33] The Vice Chair again made reference to cases which have employed the specialty scaffolding contractor exception, such as Total Support and Hydro One, and again explained why the exception should not apply (at para. 23):

But these principles cannot and should not be used to convert the business status or character of any particular contractor into a trump card over all other considerations. The Board is not satisfied that just because Aluma may be a specialty scaffolding contractor (and assuming that is true for the sake of argument), the clear and consistent work assignment pattern of many years’ precedence should change. The phrase “specialty scaffolding contractor” is not a magical incantation that by its utterance alone changes the character of the work assignment patterns the parties themselves have acceded to over the many years.

[34] In summary, the Vice Chair has considered and applied the Board’s past case law. Most importantly, he looked to the factors usually applied in determining a jurisdictional dispute and agreed with the parties that area practice was the important factor here. He then carefully examined the specialty scaffolding contractor exception and determined that it should not apply in the particular circumstances of the complaint before him.

[35] His reasons are logical and coherent. I would not give effect to this ground of review.

The Board did not misapprehend evidence relating to economy and efficiency

[36] The applicant points to paragraph 23 of the reasons in support of its argument that the Vice Chair erred in saying there was no evidence of economies and efficiencies if the tending work was done by Carpenters. Indeed, there was evidence about the efficiency of having all the work done by Carpenters.

[37] However, the Vice Chair has not mistakenly said there was no such evidence. What he said was that the evidence filed did not distinguish this project from prior work assignments. It is important to look at the wording of paragraph 23:

The briefs filed by the other parties do not advance any efficiency-related or other (for example, a change in technology) basis for demonstrating what is different about the Stator Rewind and Rotor Swap project scaffolding and hoarding work that makes it different from how such work (based on the Labourers’ area practice evidence referenced above) has been assigned before and that militates in favour of a different work assignment this time. Essentially, the only defence of the work assignment as implemented is that Aluma is a specialty scaffolding contractor.

[38] There is no misapprehension or ignoring of the evidence of economic efficiency that undermines the reasonableness of the decision.

[39] General Electric also takes issue with the description of an email exchange between one of its employees and a representative of the Carpenters’ Union. This is found in paragraph 11 of the reasons, in the section on facts. The exchange notes that the tending work can be assigned to Carpenters, rather than Labourers, if a specialty scaffolding contractor does the scaffolding work. The Vice Chair observes that the exchange is “noteworthy”.

[40] General Electric submits that the Vice Chair ignored the evidence that the decision to subcontract the work was made before this exchange of emails.

[41] This comment by the Vice Chair is not found in the analysis section of the reasons, and he makes no finding of improper conduct by the general contractor. In my view, the comment does not render the decision unreasonable.

The Board’s decision was reasonable

[42] The applicant stressed, in argument, that the decision of the Board must be not only logical in result, but the reasons for the decision must also be rational, coherent and transparent.

[43] In the present case, it must be remembered, in determining the reasonableness of this decision, that it was made by an expert tribunal – a tribunal that has specialized expertise in labour relations, but, even more importantly, an individual decision maker who is part of a subgroup at the Board that specializes in construction industry labour relations. Vavilov has noted that “[i]n conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons” (at para. 93).

[44] Here, the Vice Chair brought labour relations expertise, and familiarity with the Board’s extensive case law on jurisdictional disputes, to determine what was an appropriate assignment of the tending work on the Stator Rewind and Rotor Swap Project at Bruce Power as between the Carpenters and the Labourers. As he noted, there are several factors that may be considered and the jurisprudence is based on differing facts. He carefully explained why area practice was normally the significant factor to consider, and he focused on the relevant themes in the prior cases, applying them to the facts before him.

[45] Given the evidence, he concluded that the specialty scaffolding contractor exception should not apply in the circumstances. In doing so, he reasonably focused on the nature of the work performed and the area practice respecting that work, rather than focusing narrowly on the identity of the employer. He was not satisfied that the work was of a reasonably discrete and continuous nature so that it would be inefficient to inject members of the Labourers into the process, a conclusion that was supported by the area practice evidence.

[46] The Carpenters suggest that there is a flaw in the reasons because the Vice Chair did not mention that the onus was on the Labourers to show that the assignment was wrong.

[47] I see no flaw here. The Vice Chair is experienced in resolving this type of dispute, and one can reasonably assume that he knows where the onus lies. Moreover, this was not a close case. The Vice Chair found that evidence of area practice put forward by the Labourers demonstrated that “the overwhelmingly consistent approach for scaffold work on the Bruce Project site is and has been that scaffolding tending work is and has been executed by members of the Labourers” (at para. 22).

[48] In my view, there is a logical, clear and coherent explanation for the Board’s conclusion that the tending work should properly have been assigned to the Labourers. I see no basis for judicial intervention, as the applicant has not demonstrated that the decision was unreasonable.

Conclusion

[49] The application for judicial review is dismissed.

[50] Costs to the Labourers’ Union are fixed at the agreed sum of $10,000, payable by the applicant. The Board does not seek costs, and no costs are awarded against it.

Swinton J.

I agree _______________________________

Matheson J.

D. Edwards J. (dissenting)

[51] I have read the reasons of Swinton J. and, with respect, do not agree with the conclusion that the Board’s decision was not inconsistent with the case law on area practice.

[52] I find that the Board’s decision lacks consistency, rationality and intelligibility because the Vice Chair stated that he was following past jurisprudence in determining area practice, but in fact failed to do so.

[53] The Vice Chair purports to synthesize the past jurisprudence and in doing so, mischaracterizes those cases, re-defines specialty scaffolding contractors in a way that is inconsistent with that jurisprudence and fails to properly analyze the employer practice. That results in the Vice Chair analyzing the wrong area practice.

[54] None of the cases to which he refers define specialty scaffolding contractors as he in fact does. The prior cases draw a distinction between a general contractor and a specialty scaffolding contractor by function, not as to whether the work is a one-off installation and removal of scaffolding.

[55] Contrary to the jurisprudence which he purportedly is following, the Vice Chair concludes that it is unnecessary to determine whether the contractor was a specialty scaffolding contractor prior to undertaking his analysis of area practice.

[56] However, in Labourers’ International Union of North America, Local 1089 v. Total Support Services Ltd., 2004 19712 (OLRB) at para. 77 the Board states that before examining area practice, the Board must undertake an examination as to whether the party is a general contractor or a specialty scaffolding contractor as that determines the relevant area practice:

Before discussing area practice in detail, we need to deal with the issue of general contractors versus scaffolding contractors. We accept the distinction drawn by the Carpenters and TSS between general contractors and specialty scaffolding contractors. The nature of the work performed by the two types of contractors is different and this will inevitably lead to a different ratio of trades on scaffolding work. Para77 (emphasis added)

[57] In Total Support at para. 82 the Board notes that the classifications of general contractor and specialty contractor are not necessarily “watertight”, and it acknowledges that the type of work being performed is relevant. However, that comment is made in the context of analyzing whether the contractor is a general or specialty contractor in the specific fact situation. The Board is acknowledging that a specialty contractor could in certain situations be a general contractor because of the work that it was doing in that situation, and thereby lose its status as a specialty contractor in that situation. That statement does not detract from the necessity of determining, based upon the specific facts, into which category the contractor fits prior to analyzing area practice. Aecon Construction Group Inc. v. Labourers' International Union of North America, Local 506, 2008 7449 and Greater Ontario Regional Council of Carpenters, Drywall and Allied Workers, Local 2222 v. Hydro One Network Services, 2011 11490 support that conclusion.

[58] In Total Support at para 79 the Board states:

Given the different nature of the work of general contractors and specialty contractors as described above, we consider it appropriate to compare Chalmers to the contractors most like it, that is, specialty contractors who are bound to agreements with both the carpenters and laborers unions.

[59] Also, in Aecon Construction Group Inc. at paras. 15 and 16 the Board concludes:

15. The difficulty with the evidence proffered by Local 506 is that in large measure misses the mark that it needs to hit. In Total Support Services Ltd., cited above, the Board dealt with the question of comparing the practices of general contractors and specialty scaffolding contractors…

After setting out the purposes of considering area practice as a factor, the Board concludes that those purposes “point to comparing like to like”. That is, if the work in dispute was assigned by a specialty scaffolding contractor, the area practice of relevance is the area practice of specialty scaffolding contractors.

16. As Tower is a specialty scaffolding contractor, the practice of specialty scaffolding contractors in Board Area 8 in the EPS sector of the construction industry is the relevant area practice to consider.

[60] Finally, Hydro One also follows that approach: “…if the work in dispute was assigned by a specialty scaffolding contractor, the area practice of relevance is the area practice of specialty scaffolding contractors”.

[61] Further, the Vice Chair conflates the analysis of employer practice (Is the employer a specialty scaffolding contractor) with the analysis of economy and efficiency. At paragraph 18 of his decision, under the section headed “Specialty Scaffolding Contractor Exemption”, he states:

The “appropriate circumstances”, as referenced above, are typically (again speaking generally) that the scaffolding work will involve the contractor delivering the scaffolding materials to the site, erecting the scaffolding (usually with the crew that delivered the materials), and then returning to the site to dismantle the scaffolding and remove it from the worksite when it is no longer required. In such circumstances the economy and efficiency factor tends to be essentially determinative of the JD dispute. (emphasis added)

[62] By this statement the Vice Chair departs from the prior jurisprudence in two ways.

[63] First, as I have already noted the prior jurisprudence does not define a specialty scaffolding contractor in this manner, and secondly, in the prior jurisprudence the factor of economy and efficiency does not form part of the analysis as to whether a contractor is a specialty scaffolding contractor. It is a separate factor which must be analyzed separately

[64] The Vice Chair carries this mischaracterization of a specialty contractor into his analysis of Hydro One. At paragraph 19 of his decision still under the heading “Specialty Scaffolding Contractor Exemption”, he applies a finding that the Board reached in Hydro One (para. 36) with respect to the economy and efficiency factor to buttress his proposition that the “exemption” does not apply.

[65] The prior jurisprudence makes it clear that one analyzes area practice through the lens of the nature of contractor, be it a general or specialty scaffolding contractor and that economy and efficiency is a factor which must be analyzed separately.

Summary

[66] In summary, the Vice Chair stated that he was following prior jurisprudence, but he did not. That jurisprudence directed that a determination as to whether the employer was a specialty scaffolding contractor occur prior to undertaking a review of area practice, but the Vice Chair failed to do that. The determination of the type of contractor dictates the area practice to consider.

[67] As noted by Swinton J. the Board considers a number of factors, none of which is determinative, in ascertaining the appropriate assignment of disputed work. It possible that an analysis consistent with prior jurisprudence may result in the same conclusion as the Vice Chair made with respect to the assignment of the disputed work. Nevertheless, the Vice Chair, after stating that he was following prior jurisprudence, failed to do so.

[68] Therefore, for the reasons stated above I conclude that the Board’s decision lacks consistency, rationality and intelligibility and thus is unreasonable. I would grant the application for judicial review, set aside the Board’s decision, and remit the matter to the Board.

D. Edwards J.

Released: October 19, 2021

CITATION: Aluma Systems Inc. v. Labourers’ International Union of North America, 2021 ONSC 6413

DIVISIONAL COURT FILE NO.: 456/20

DATE: 20211019

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, D. Edwards and Matheson JJ.

BETWEEN:

ALUMA SYSTEMS INC.

Applicant

– and –

LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT, COUNCIL AND LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059, AND BRUCE POWER LP, AND GENERAL ELECTRIC CANADA INC., AND CARPENTERS’ DISTRICT COUNCIL OF ONTARIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AND ONTARIO LABOUR RELATIONS BOARD

Respondents

REASONS FOR JUDGMENT

Swinton J.

D. Edwards J. (dissenting)

Released: October 19, 2021