2022 ONSC 1054
DIVISIONAL COURT FILE NO.: 273/21
DATE: 20220216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Perell, Sheard JJ.
BETWEEN:
BOMANITE TORONTO LTD.
Applicant
– and –
CARPENTERS AND ALLIED WORKERS LOCAL 27, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 and ONTARIO LABOUR RELATIONS BOARD
Respondents
Lisa M. Bolton and Jeremy McLeish for the Applicant
Douglas J. Wray for the Respondent, Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America
Ben Katz, L.A. Richmond and Char Wiseman for the Respondent, Labourers’ International Union of North America, Local 183
Aaron Hart and Andrea Bowker for the Respondent, Ontario Labour Relations Board
HEARD: at Toronto (by videoconference) February 3, 2022
Sheard J.
A. Nature of the Application
[1] The applicant, Bomanite Toronto Ltd. (“Bomanite”), seeks judicial review of two decisions of the Ontario Labour Relations Board (the “Board”) on the basis that the decisions were procedurally unfair and substantively unreasonable.
[2] The first decision, pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”), is with respect to a construction industry grievance referral (the “Grievance”) filed by the respondent, the Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“the Carpenters”). This decision, dated December 4, 2020 (the “Default Decision”), holds that: (a) Bomanite had violated the Carpenters’ collective agreement; and (b) the Carpenters are entitled to damages, to be determined at a later hearing.
[3] The second decision dated March 12, 2021 (the “Reconsideration Decision) denies Bomanite’s request for reconsideration of the Default Decision.
[4] On this judicial review application, Bomanite seek orders:
(i) quashing and setting aside the Default Decision and the Reconsideration Decision;
(ii) remitting the Grievance back to a different panel of the Board;
(iii) if necessary, a stay of the award issued in the Default Decision; and
(iv) its costs.
[5] The Carpenters asks for the dismissal of Bomanite’s application.
[6] The respondent, Labourers International Union of North America, Local 183 (“the Labourers”) supports Bomanite’s application and the relief sought.
B. Chronology of Events
The Grievance Request
[7] On September 12, 2019, the Carpenters put Bomanite on notice that it had violated the Carpenters’ collective agreement by employing workers who did not belong to the Carpenters to perform bargaining unit work. The Carpenters advised that it would be seeking compensation for losses flowing from Bomanite’s violation, in accordance with the principles established in Blouin Drywall Contractors Ltd., 1975 707 (ON CA), [1975] O.J. No. 31 (“Blouin”).
[8] The Carpenters filed the Grievance on October 10, 2019. In the grievance, the Carpenters repeated its allegations and specified that Bomanite had assigned the bargaining unit work to members of the Labourers. The Carpenters requested that a hearing of the Grievance on its merits be held on November 21, 2019. Although not named as a Responding Party, the Labourers were identified as a party that may be affected by the Grievance.
[9] On October 11, 2019, the Board provided the Carpenters, Bomanite, and the Labourers with a Confirmation of Filing form and Notice of Hearing. These documents confirmed the November 21, 2019 hearing date. Among other things, the Board’s Notice of Hearing set out, in bold type, that a Notice of Intent to Defend/Participate (an “NOI”) had to be filed within five business days and that the failure to file a timely NOI in the way required by the Board’s Rules of Procedure may result in the application being decided without a hearing and without further notice to the defaulting party.
[10] The Confirmation Notice also stated that the Responding Party(ies) (and any Intervenor(s)) who chose to participate in the case were required to file a Response/Intervention to the Application (a “Response”) no later than two business days before the hearing date.
[11] On October 18, 2019, the Labourers filed its NOI. In it, the Labourers asked that the Grievance be deferred until a jurisdictional dispute[^1] could be filed and determined.
[12] Bomanite did not file a NOI or a Response within the prescribed timelines.
[13] On October 22, 2019, the Carpenters asked the Board to adjourn the Grievance sine die pending the completion of the jurisdictional dispute. The adjournment was granted on consent.
The Jurisdictional Dispute
[14] On December 4, 2019, the Labourers filed its jurisdictional dispute (the “JD”) respecting the disputed work issue in the Grievance.
[15] The hearing of the JD proceeded on October 29, 2020. On November 17, 2020, the Board issued its decision (the “JD Decision”).
The JD Decision
[16] In the JD Decision, the Board identified the Labourers as the applicant, and the Carpenters, and Bomanite, as responding parties. The Labourers and the Carpenters filed comprehensive briefs in the JD proceeding. Bomanite did not file a brief and did not participate in the JD proceeding.
[17] At the outset of the JD hearing, the Labourers conceded that:
(a) the work in dispute was in the ICI[^2] sector of the construction industry;
(b) the Labourers did not have bargaining rights in the ICI sector with Bomanite, nor with DPSL Group Ltd., the company that subcontracted the work to Bomanite; and
(c) the work was assigned by Bomanite to Labourers’ members, utilizing the Labourers’ road builders’ collective agreement.
[18] The Board reviewed the factors it normally considered when resolving work assignment disputes. It determined that only three factors were applicable: 1) collective agreements, 2) employer practice, and 3) area practice.
[19] In the JD Decision, the Board noted that:
(i) the Carpenters had bargaining rights in the ICI sector of the construction industry with Bomanite;
(ii) there was no explanation from Bomanite as to why it assigned the work in dispute to the Labourers; and
(iii) the collective bargaining relationships, “or lack thereof”, was the critical and determinative factor in resolving the JD.
[20] At para. 24 of the JD Decision, the Board stated:
What is also not lost on the Board here is that the Carpenters established its bargaining rights with Bomanite in April 2018. Those bargaining rights must have meaning. Once Bomanite signed the voluntary recognition agreement with the Carpenters for carpenters’ work in the ICI sector, Bomanite was obligated to assign the work in dispute to members of the Carpenters Union. Instead, Bomanite assigned all of the work, including the construction and erection of the formwork, to the Labourers. As counsel for the Carpenters expressed it, a significant matter for the Board to consider is what would have been the point of the Carpenters acquiring bargaining rights with Bomanite if Bomanite could merely turn around and assign the carpenters’ portion of the work to a trade that did not have a collective agreement claim to the work in dispute? That is not a path the Board should tread without compelling evidence of exceptional circumstances. I hesitate to even speculate as to what may constitute “exceptional circumstances”, but I have no hesitation in saying that no such circumstances exist in the present case. (sic)
[21] The Board concluded that with respect to the collective agreement factor, the Carpenters had a legal claim to the work in dispute and the Labourers did not.
[22] In considering the area practice factor, the Board noted that disputes between the Labourers and the Carpenters respecting the construction or erection of forms were not new and referred to Alliance Site Construction Ltd., a JD between the same two parties. However, unlike in Alliance - in which the employer was bound to both Locals – the Board noted that in this case, only the Carpenters had a collective agreement with respect to the subject work. For that reason, the Board found that the Carpenters were entitled to the assignment of the work, notwithstanding that area practice favoured the Labourers.
[23] In considering the employer practice factor, the Board concluded that in the brief period from when Bomanite became bound to the Carpenters and the date of the disputed work, the Carpenters had not been involved in any similar projects that might override the “Carpenters’ strong collective agreement claim”.
[24] The Board determined the JD in favour of the Carpenters. It held that on the evidence before it, the Carpenters had a strong claim that its members ought to have been assigned the work in dispute. It was ICI sector work and the Carpenters had a collective agreement covering the work in dispute, the Labourers did not.
The Grievance is Rescheduled
[25] On November 19, 2020, following the release of the JD Decision, the Carpenters wrote the Board, copying Bomanite, asking that the Grievance be re-listed for hearing and repeating that the Carpenters were seeking damages as against Bomanite for violating the collective agreement.
[26] On November 20, 2020, the Board issued a Notice of Rescheduled hearing date for January 8, 2021. The Notice was sent to Bomanite, the Carpenters, and to the Labourers.
[27] On December 3, 2020, counsel for the Carpenters wrote to the Board, copying Bomanite. In that letter, Carpenters’ counsel confirmed that: i) when originally filed, the Grievance had requested a default judgment in the event that the Responding Party [Bomanite] did not file an NOI; ii) Bomanite had not filed an NOI; and, iii) following the Carpenters’ request to re-list the matter for hearing, Bomanite had again failed to file a timely NOI. As a result, the Carpenters requested default “judgment” declaring a violation of the Carpenters’ collective agreement and a declaration that Bomanite pay damages, with quantum to be determined, and a (related) production order against Bomanite.
The Default Decision
[28] On December 4, 2020, the Board issued the Default Decision.
[29] As part of its finding, the Board noted that Bomanite had not completed or filed a Request for Hearing and NOI within the time prescribed by Rule 35.1 of the Rules[^3].
[30] The Board stated that as provided by ss. 133(7) and (8) of the Act, and under Rules 36.1, 36.2, and 36.3, if a responding party failed to file any material, the Board was permitted to proceed with the Grievance without a hearing and to determine the matter with reference only to the material filed by the party referring the grievance.
[31] Rules 36.1, 36.2 and 36.3 of the Rules read as follows:
36.1 If a responding party does not deliver and file a "Request for Hearing and Notice of Intent to Defend" (Form A-87) in the way required by these Rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
36.2 Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 36.1 and leave the damages issue to be determined at an oral hearing.
36.3 Where the Board decides or has decided a case (or part of a case) under Rule 36.1, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board. A responding party that applies for reconsideration must include a “Request for Hearing and Notice of Intent to Defend” (Form A-87), the requisite filing Fee, and a response (Form A-88) with its reconsideration application.
[32] In the Default Decision, the Board noted that the Grievance had been held in abeyance, pending the resolution of the JD. On the basis of the JD Decision and the material filed by the Carpenters, the Board declared that: 1) the parties were bound to the collective agreement; 2) Bomanite had violated the collective agreement by assigning work to non-members; and, 3) the Carpenters were entitled to damages. The Board found that it did not have enough information to assess damages and, pursuant to r. 36.2, scheduled a hearing for January 8, 2021 to deal with the assessment of damages.
[33] The Board sent a copy of the Default Decision to Bomanite and on December 11, 2020 issued a Notice of Hearing with a Zoom link for the January 8, 2021 hearing.
[34] On December 29, 2020, the Carpenters served a Summons to Witness on Bomanite’s owner, requiring him to attend the damages assessment hearing of January 8, 2021. On January 7, 2021, Bomanite retained counsel. At 8:45 p.m. on January 7, 2021, Bomanite served an NOI and a Response to the Grievance and advised that Bomanite intended to file a Request for Reconsideration of the Default Decision. This letter was the first communication the Carpenters had received from Bomanite since the filing of the Grievance.
[35] On January 8, 2021, the Board granted Bomanite’s request for an adjournment. On January 15, 2021, Bomanite filed its Request for Reconsideration seeking to have the Board set aside the Default Decision and to reschedule the hearing to determine the Grievance on its merits.
The Reconsideration Decision
[36] Bomanite’s summary of its submissions on the Request for Reconsideration, relevant to this judicial review is as follows:
(a) the Carpenters’ request for default judgment ought not to have been made and the Default Decision ought not to have been granted because an NOI had been filed by the Labourers, who are included in the definition of a “responding party” under r. 1.5 (n) and 1.5 (k) of the Board’s Rules of Procedure;
(b) the Default Decision was inconsistent with well-established and uncontradicted Board jurisprudence and was granted without any consideration to that jurisprudence which, Bomanite asserts, provides that:
i) by consenting to adjourn a grievance sine die, an applicant waives its right to a default judgment after the applicant re-lists the grievance for hearing on the merits; and
ii) only in the most exceptional circumstances will the Board award damages in a grievance following a JD between two unions; and
(c) Bomanite did not have the benefit of counsel when the Default Decision was granted, and the Carpenters would not be prejudiced if it were set aside.
[37] On January 7, 2021, after the Labourers became aware of the Default Decision, it wrote to the Board advancing its position that it had status to participate in the Grievance and that the Board ought not to award damages. Pursuant to the Board’s direction, on February 1, 2021, the Labourers filed additional submissions with the Board.
[38] Set out below are the key submissions made by the Labourers asserting that:
(a) the Labourers had status in the Grievance and, therefore, no default decision should have been issued;
(b) the Labourers should continue to have status to participate in the Grievance;
(c) the Board ought to reconsider the Default Decision;
(d) in awarding the work to the Labourers, Bomanite made a “rational business decision” and, in accordance with the principles in Hayman Construction Inc., no damages should be awarded; and
(e) the Labourers would be affected by a damage award against Bomanite, which could have an impact on the future assignment of work under its collective agreements.
[39] The Board proceeded with the reconsideration procedure and decided that the Labourers did not have standing to intervene at this stage of the grievance procedure. In this regard, it should be noted that the Default Decision does not make reference to the Labourers’ involvement in the Grievance; it was not until the Reconsideration Decision that the Labourers were formally denied standing.
[40] In denying standing to the Labourers, the Board relied on Robertson Yates, 1995 10050 (ON LRB) in which the Board held that once a jurisdictional dispute has been resolved, the matter becomes a collective agreement issue and a party that is not bound to that collective agreement does not have standing to participate in the grievance proceeding.
[41] The Board stated that the rationale set out in Roberston Yates is well known in the labour relations community and it is in keeping with the “well-established, long-standing process” for the Board to defer a grievance pending the resolution of a work assignment dispute. The Board noted that, as recognized in Hydro One Networks Inc., 2020 86667 (ON LRB), the practice of deferring a grievance arising from a work assignment dispute, allows for the ability of every affected party to participate in the work assignment dispute/jurisdictional dispute.
[42] The Board referenced the finding made in the JD Decision: that the Labourers had no collective agreement claim to the work whatsoever. As the Grievance involved a collective agreement to which the Labourers was neither a party, nor bound, the Board found that the Labourers did not have standing and dismissed its request to intervene (at para. 8).
[43] The Board dismissed Bomanite’s request to reconsider the Default Decision.
[44] The Reconsideration Decision reviewed the general principles for reconsideration of a decision of the Board as set out in Canadian Union of General Employees, [1975] OLRB Rep. April 320 and considered the following four-part test in 935772 Ontario Ltd. (c.o.b. “Royal Taxi”), [2000] O.L.R.D. No. 3898:
the decision contains an obvious error;
the request raises important policy issues which had not been adequately addressed;
if new evidence is being put forth, it must be evidence that could not, with due diligence, have been obtained and presented previously and which, if accepted would have made a difference to the decision; and
where representations are sought to be made, the requesting party did not have a previous opportunity to make them.
[45] The Board rejected Bomanite’s assertion that notwithstanding that it had not filed an NOI because an NOI had been filed by the Labourers, the Board erred in granting default judgment. The Board held that, as the Labourers had no standing, the NOI filed by it did not relieve Bomanite from its obligation to file its own, timely NOI and Response, had Bomanite wished to participate in the process.
[46] The Board noted that filing an NOI “is amongst the easiest Board processes, if not the easiest” and that had Bomanite wished to make a representation to the Board that it should not have to pay damages arising out of “a clearly incorrect work assignment, it had every opportunity to raise this at the outset of this process, or at a bare minimum to participate in the” JD to justify its decision [to assign work to the Labourers]. Yet, Bomanite failed to do so.
[47] The Board noted that Bomanite’s Response, once filed, was not filed in a timely way and that it lacked any explanation for Bomanite’s decision to assign work to the Labourers that clearly fell within the Carpenters’ collective agreement. Also, in the Response, Bomanite denied a violation of the collective agreement, which assertion could be given no weight given the findings in the JD Decision. Finally, the Board found that Bomanite “has not even attempted to file further particulars to try to justify why damages are not the appropriate remedy in the circumstances of this case. It simply relies on the proposition that the Board rarely orders damages where a work assignment dispute was determined by the Board” (at para. 19).
C. General Rule: No damages awarded if there is a jurisdictional dispute.
[48] On this judicial review, Bomanite accepts that the JD Decision governs its liability on the Grievance. However, Bomanite disputes the Board’s determination in the Default Decision that the Carpenters were entitled to damages and seeks to set aside the two decisions so that it may dispute that finding.
[49] The Board accepted the assertion made by Bomanite and the Labourers that, subject to certain exceptions, as a general rule, damages are not awarded where there is a jurisdictional dispute between competing unions. The Board noted that the exception to the general rule is found in Robertson Yates, and was recently applied in Hayman Construction Inc. 641 (ON LRB). Both decisions stand for the principle that damages may be awarded following the determination of a jurisdictional dispute case, in which the Board is not satisfied that the employer made “reasonable assignment in the particular circumstances” or a “rational business decision” made “in good faith”.
[50] The Board quoted extensively from Robertson Yates, including from para. 29 (the Board’s highlighting repeated[^4]) which reads:
And there will no doubt be occasions when the Board might award damages; for example, where an employer wrongfully declines to hold a mark-up meeting, where the employer assigns contrary to generally accepted practice or to Board decisions indicating the correct methodology or assignment, or when the Board is not satisfied the assignment was made in a bona fide manner or for a bona fide purpose. This does not purport to be an exhaustive list.
[51] In the Reconsideration Decision, the Board found that Bomanite had had full opportunity to participate in the JD and in the Grievance and chose not to do so. The Board also found that Bomanite offered no explanation for assigning work to the Labourers either in its Response, or in the JD which contained “not a singular particular… that could give rise to a finding that Bomanite’s decision to assign work to the Labourers was “a rational business decision that was made in good faith” (at para. 23).
[52] The Board rejected Bomanite’s assertion that there would be no prejudice to the Carpenters if it were allowed to defend its actions concluding that:
To permit a party that had not otherwise participated in any way whatsoever to defend the merits of its decisions, over 15 months after its original Notice of Intent to Defend was due, can only serve to encourage abuses of the Board’s processes and delaying the resolution of labour relations issues that ought to be addressed efficiently and expeditiously in accordance with the purposes of the Act (at para. 24).
[53] The Board upheld the Default Decision and determined that the only remaining question was the quantum of damages in which Bomanite’s participation would be determined by the panel seized with that hearing.
D. The Law
Jurisdiction of this Court
[54] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[55] The parties agree that on questions of procedural fairness, there is no applicable standard of review. On all other questions, the reasonableness standard applies to this judicial review.
[56] Bomanite asserts, and the Labourers agree, that it was procedurally unfair and unreasonable for the Board to have granted the Default Decision and, in the Reconsideration Decision, to have denied the Labourer’s standing. The Carpenters and the Board dispute that this application raises any questions of procedural fairness. The Board attended this hearing but made no oral submissions, content to rely on its factum. In the Board’s factum, it submits that this application raises no questions of procedural fairness and the reasonableness standard applies to this judicial review of the decisions.
Procedural Fairness
[57] On questions of procedural fairness, the court must determine whether the requisite level of procedural fairness has been accorded, taking into account the following factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23 – 27:
(1) the nature of the decision being made and of the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
Reasonableness Standard of Review
[58] The applicable principles respecting the reasonableness standard of review are as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.). This standard was recently addressed by the Ontario Court of Appeal in Society of United Professionals v. New Horizon System Solutions, 2021 ONCA 503. At para. 18, the Court stated as follows:
[18] The parties agree that the applicable standard of review is reasonableness. As the Supreme Court recently explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” Reasonableness review requires the reviewing court to read the reasons in light of the history and context of the proceedings and to be alert to the decision maker’s experience and expertise: Vavilov, at paras. 93-94. The onus is on the party challenging the decision to demonstrate that it is unreasonable: Vavilov, at para. 100. Before setting aside a decision as unreasonable, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para.100.
[59] As stated in Vavilov, the reviewing court is not to interfere with a decision on the basis that it would have decided the matter differently or because an alternative interpretation was open to the Tribunal. Rather, “the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale for the decision and the outcome to which it led - was unreasonable” (at para.83).
[60] In Ontario Power Generation v. The Society of United Professionals, 2020 ONSC 7824 at para. 22, this court summarized the Vavilov guiding principles for deciding whether a decision is reasonable as follows:
a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.
b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.
c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.
d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.
[61] In Thomas v. United Food, 2021 ONSC 3015, this court considered the standard of review applicable to a decision of the Board and stated as follows:
[12] This court and the Ontario Court of Appeal have recently affirmed that the long-standing jurisprudential commitment to affording labour relations decision makers the highest degree of deference pre-Vavilov, is properly maintained post Vavilov. (citation omitted)
E. Grounds for Relief Claimed
[62] Bomanite asserts that the Default Decision was procedurally unfair and substantively unreasonable in that:
(a) the Board ought not to have proceeded with a default proceeding because the Labourers had filed an NOI, thereby precluding the Grievance from proceeding on a default basis;
(b) in the Notice of Rescheduled Hearing of November 20, 2020, the Board provided notice that the new hearing date was January 8, 2021, but failed to advise that default judgment may be granted if Bomanite failed to file an NOI;
(c) when the Carpenters requested a default judgment against Bomanite, it did not serve notice upon the Labourers;
(d) the Board has a long-standing practice of not granting default judgment after a consent adjournment of a Grievance pending adjudication of a jurisdictional dispute between “rival unions”; and
(e) except in exceptional circumstances, the Board has a well-established practice of not awarding damages against a construction employer following a jurisdictional dispute.
[63] Bomanite asserts that the Reconsideration Decision was also procedurally unfair and substantively unreasonable in that:
(a) the Board determined that Bomanite could not rely on the Labourers’ Request for Hearing and NOI because the Labourers did not have standing at the Grievance despite the fact that the Labourers’ lack of standing was not determined until the Reconsideration Decision;
(b) the Board concluded that Bomanite ought to have delivered a Request for Hearing and NOI when the hearing was rescheduled despite the fact that the Board’s Notice of November 20, 2020 set a hearing date but did not indicate that a NOI was required;
(c) the Board declined to set aside the Default Decision on the basis that Bomanite had not participated in the JD;
(d) the Board concluded that Bomanite had full opportunity to participate in the Grievance and failed to do so, despite the fact that no hearing occurred prior to the Default Decision;
(e) the Board ignored Bomanite’s arguments respecting lack of prejudice if the Default Decision were to be set aside and determined that Bomanite’s request to defend the Grievance was an abuse of the Board’s process;
(f) in its decision, the Board failed to take into account the factual matrix; and
(g) the Board failed to consider and consistently apply established Board jurisprudence, rules and practices.
[64] The Labourers additionally assert that it was unreasonable and a breach of procedural fairness for the Board to have disregarded the “central issue and argument” made by the Labourers and denied status to the Labourers, despite the Labourers’ clear interest in the proceedings.
F. Analysis
Issue #1: Was the Default Decision procedurally unfair and substantively unreasonable?
[65] On this hearing, Bomanite and the Labourers accepted that the JD Decision finally determined the liability issue: Bomanite did violate the Carpenters’ collective agreement. As a result, the only live issue for the Grievance was whether the Carpenters’ were entitled to damages for Bomanite’s breach and, if so, the quantum of the damages. The damages have not been determined, as the assessment hearing is in abeyance, pending the outcome of this application.
[66] The Labourers also submit that in most cases, following a jurisdictional dispute, the union that was unsuccessful has no surviving interest in the application of the collective agreement to which it is not bound (Robertson Yates, at paragraphs 29-31), but that this case falls into an exception. The Labourers submit that because the Board found the Carpenters to be entitled to damages, the Labourers have an interest in the Grievance because damages awarded against Bomanite could have a “chilling effect” on employers.
[67] The Labourers assert that where damages become an issue in a work assignment grievance, the proceedings are “rendered unique” in that the adjudicator must resolve the complicated question of whether the work assignment was unreasonable, which may turn on tripartite considerations that may not have been addressed in the jurisdictional dispute proceedings.
[68] I do not accept that submission. If there were no “tripartite” considerations in the JD, that is the fault of Bomanite, who chose not to participate in the JD. Nowhere in the record before the Board did Bomanite ever explain or justify its decision to assign work to the Labourers.
[69] The Labourers rely on Universal Workers Union, Labourers' International Union of North America, Local 183 v Carpenters' District Council of Ontario, 2015 31912 (ON LRB) (“Universal”), a decision in respect of a jurisdictional dispute involving the Labourers and a different local of the Carpenters.
[70] In Universal, the Board noted that, “absent some unreasonable behavior on the part of the employer”, damages are not awarded in cases in which the employer is bound to two collective agreements which creates “an impossible’ situation in that the employer “must choose one trade to perform the work and in so doing will violate the collective agreement it has with the other trade” (at para. 79). No such “impossible” situation existed in this case: Bomanite was bound only to the Carpenters’ collective agreement.
[71] The Labourers have also failed to establish any procedural unfairness in the Board’s finding in the Reconsideration Decision that the Labourers’ lacked standing in the Grievance: on the Reconsideration, the Labourers were given full opportunity to file materials and to make submissions to the Board.
[72] I also find that the Labourers have failed to establish that the Reconsideration Decision was unreasonable. The Board considered the factual matrix, which included the JD, the Labourers’ submissions, relevant jurisprudence, and its jurisdiction under the Act. The Board clearly explained how it reached its conclusion. The JD Decision was not a close call: as the Board stated, the evidence established that the Carpenters had “a very strong claim that its members ought to have performed the work in dispute” in respect of which the Carpenters had a collective agreement and the Labourers did not.
[73] The Board submits that the Board’s decision to grant the Default Decision and to deny standing to the Labourers were decisions made in the exercise of the Board’s discretion, pursuant to the Board’s powers and duties under section 111 of the Act: see Labourers’ International Union of North America (Local 183) v. Allied Construction Employees (United Brotherhood of Carpenters and Joiners of America (Local 1030), 2016 ONSC 745. I agree.
[74] For all of these reasons, I conclude that as concerns the Labourers, neither the Default Decision, nor the Reconsideration Decision, was procedurally unfair or unreasonable. I find no basis to interfere with the Board’s finding that, after the JD Decision, the Labourers’ had no further interest in the Grievance and had no standing.
Issue #2: Did the Board fail to follow its long-standing practice respecting damages?
[75] Bomanite asserts that Board failed to follow its long-standing practice of not awarding damages against an employer when the work is assigned to employees of another union and the Board later determines, “in the course of a jurisdictional dispute between the two competing unions”, that the employer should have assigned the work to employees represented by the other union.
[76] I find that this allegation is not properly characterized as a lack of procedural unfairness: whether to award damages was within the Board’s jurisdiction under section 111 of the Act, and that decision is properly reviewed on the basis of reasonableness.
[77] As noted above, when it concluded that the Carpenters were entitled to damages, the Board relied on the Board’s findings in the JD Decision that Bomanite clearly breached the Carpenters’ collective agreement and offered no evidence or explanation for why it assigned the disputed work to the Labourers.
[78] There is no allegation that Bomanite’s lack of participation in the JD was caused by any procedural unfairness and, on the record before it, it was reasonable for the Board to conclude that Bomanite simply chose not to participate in the JD.
[79] On this application, Bomanite submits that it is common for employers not to take part in a jurisdictional dispute. However, not only does Bomanite offer no evidence to support that assertion - which is disputed by the Carpenters - the decisions relied on by the parties, suggest that employers do take part jurisdictional disputes (for example, see Universal).
[80] It was Bomanite’s choice not to participate in the JD. Similarly, despite that it knew that the Carpenters were seeking damages, and in the face of the liability finding in the JD Decision, Bomanite chose not to participate in any way in the Grievance until the eve of the scheduled damages hearing.
[81] In the absence of any justification for Bomanite’s work assignment, the Board followed the well-known principles found in Robertson Yates and in Hayman. While brief, the Board’s reasons in the Default Decision were clear and, on the record before it, justified. The Board was entitled to exercise its jurisdiction under the Act and to follow its Rules.
[82] Bomanite has failed to show that the Board deviated from its usual practice when it found the Carpenters were entitled to damages: The JD Decision made a clear finding of liability, and there was no evidence from Bomanite explaining why it assigned work to the Labourers and justifying its decision as a rational business decision made in good faith.
Issue #3: Is default judgment permitted after delivery of Notice of Rescheduled Hearing?
[83] Bomanite asserts that it was both procedurally unfair and unreasonable for default judgment to have been granted when the Notice of Rescheduled Hearing did not repeat the information set out in the original notice of hearing, and failed to remind Bomanite that if it failed to file an NOI, judgment could be granted based on evidence filed by the Carpenters.
[84] There is nothing in the Act or the Rules that supports the position advocated by Bomanite.
[85] In oral submissions on this application, Bomanite submitted that it was not aware of any documents that it was required to file in advance of the January 8, 2021 hearing. That submission is contradicted by the Rules and by the Notice given to Bomanite setting out that all respondents had to file an NOI, and, no later than two days before the hearing, a Response. Bomanite did neither. Further, there is no evidence before this court that Bomanite relied on the understanding of the Rules it now advances. It retained counsel on the eve of the hearing, and it was counsel who finally communicated in respect to the hearing, at 8:45 pm the night before the hearing. The record supports the conclusion that Bomanite simply ignored this proceeding before the Board until the last minute.
[86] I conclude that the Board was following and enforcing the Rules when it proceeded with the default hearing, and that, given the record before it, reviewed extensively earlier in these reasons, the Board acted reasonably in doing so. I see no procedural unfairness.
Issue #4: Is default judgment permitted if an NOI is filed by any Respondent?
[87] Bomanite submits that it was procedurally unfair for a default hearing to proceed against it in the face of an NOI filed by the Labourers. That issue is addressed in the Reconsideration Decision. Again, as set out above, the Board was following usual practice that, following a jurisdictional dispute, the unsuccessful union no longer has any interest in the grievance proceeding. The JD Decision provides no basis to stray from that usual practice and to treat this case as “unique”, i.e. one in which the losing union did have surviving interest in the Grievance.
Issue #5: Is default judgment permitted after a consent adjournment?
[88] Bomanite also asserts that the Board has a long-standing practice of not granting default judgment after a consent adjournment of a grievance, pending the adjudication of a jurisdictional dispute; once an applicant agrees to adjourn the hearing sine die, the applicant, in effect, waives the right to default judgment.
[89] The Carpenters dispute this assertion.
[90] Bomanite relies on a number of decisions, beginning with International Union of Bricklayers and Allied Craft workers, Local 7 v. Presto Construction Inc., 2002 35196 (ON L RB) (“Presto”).
[91] In Presto, the Board refused to grant default judgment against the party who had not filed an NOI, after the proceedings had been adjourned, on consent, while settlement discussions ensued. The Board determined that when the applicant agreed to adjourn the hearing, in effect, it had waived its right to request that the Board proceed without further notice to the responding party. The Board noted that when the matter was re-listed for hearing, there was nothing in the notice from the Registrar to indicate that the responding party had to file a Request for Hearing and NOI prior to the new hearing date, and that there was nothing in the Board’s Rules that imposed such an obligation. However, the Board did make it clear that if the responding party intended to participate in the hearing, the Request and NOI needed to be filed on or before the day of the hearing, failing which, the hearing would proceed in the absence of the responding party.
[92] In my view, the facts in Presto are distinguishable. In Presto, the grievance was adjourned to allow for settlement discussions. In such circumstances, it is easy to identify the potential for unfairness to a respondent who might be caught by surprise by a default judgment of which it had no notice or expectation. The facts here are different.
[93] In this case, the Grievance was filed over an objection to a work assignment. As that issue is properly determined on a JD application, the Grievance was adjourned. The record on this application shows that Bomanite, the Carpenters, and the Labourers, were parties to the JD proceeding. Bomanite chose not to participate in the JD, nor to make any filings in the Grievance, until the eve of the damages hearing. As noted by the Carpenters, when the Labourers sought an adjournment of the Grievance, the time for Bomanite’s filing of an NOI had already expired.
[94] Bomanite also relies upon the Board’s decision in International Association of Bridge, Structural Ornamental and Reinforcing Iron Workers, Local 721 v. Beaver Construction Services Corp., 2005 41834 (ON LRB). I conclude that case is also distinguishable on its facts; in that case, the application had been adjourned because of the applicant’s failure to file required documents.
[95] Bomanite also relies on Sheet Metal Workers' International Assn., Local 473 v. E. S. Fox Ltd., 2005 5133 (ON LRB). I reach a similar conclusion with respect to this and the other cases referenced by Bomanite: each is distinguishable on its facts and none involves an adjournment pending the filing and disposition of a jurisdictional dispute, as occurred in this case.
[96] The Carpenters identified two other grounds to dispute Bomanite’s assertion, that granting the Default Decision after the Grievance was adjourned sine die gave rise to procedural unfairness to Bomanite. The Carpenters assert that, firstly, there is nothing in the Rules that provide that a default judgment cannot be granted after a grievance hearing is adjourned sine die. Secondly, there is no evidence that Bomanite knew of and/or relied upon the Board’s alleged practice not to grant default judgment after a grievance is adjourned sine die.
[97] I accept and agree with both of those submissions.
[98] The Default Decision makes it clear that in proceeding with the Grievance without scheduling a hearing, the Board was exercising its discretion under section 133 of the Act and enforcing its own Rules: 36.1, 36.2 and 36.3.
[99] As stated by this Court in Thomas v. United Food, labour relations decision-makers are to be given the highest degree of deference.
Issue #6: Was the Reconsideration Decision procedurally unfair and substantively unreasonable?
[100] On this application, Bomanite submits that the principles to be applied on a reconsideration decision are found in International Brotherhood of Electrical Workers, Local 303 v. Weinmann Electric Limited, 2000 11928 (ON LRB). The four-part test in Weinmann differs somewhat from the four-part test set out in Royal Taxi, which was referenced by the Board in the Reconsideration Decision. However, there is no evidence that Bomanite satisfied either test.
[101] Weinmann requires the party seeking a reconsideration to demonstrate that there is a real and substantial defence to the grievance and that the matter is of sufficient importance to the ongoing relationship of the parties, and that the original decision should be set aside and the matter be litigated.
[102] On this application the parties agree that there is no defence on the issue of liability, which was determined by the JD Decision.
[103] Weinmann also requires some explanation for the default: Bomanite provided none.
[104] The absence of any explanation from Bomanite is noted in the Reconsideration Decision at following paragraphs:
(a) at para. 18, the Board states that Bomanite “has not provided any explanation for why it decided to assign work that clearly falls within the applicant’s collective agreement to members of the Labourers”;
(b) at para. 19, the Board states: the responding party has not even attempted to file further particulars to try to justify why damages are not the appropriate remedy in the circumstances of this case. It simply relies on the proposition that the Board rarely orders damages where a work assignment dispute was determined by the Board”; and
(c) at para. 22 of the Reconsideration Decision, at which the Board states “For whatever reason, the responding party chose to remain silent for 15 months until hours before the January 8, 2021 hearing”.
[105] The Board specifically considered and rejected Bomanite’s submissions that, having concluded that the Labourers no longer had standing in the Grievance, Bomanite could not rely on the NOI filed by the Labourers. I see nothing unreasonable about that finding.
[106] In the Reconsideration Decision, the Board provided lengthy and detailed reasons for its conclusion. The Board fully considered the history of the proceedings and explained its rationale for dismissing the Reconsideration request.
[107] Bomanite also submits that the Board ignored its argument respecting lack of prejudice that would occur if the Default Decision were set aside. I disagree. At para. 24, the Board specifically addressed that issue stating:
To permit a party that otherwise not participated in any way whatsoever to defend the merits of its decisions, over 15 months after its original Notice of Intent to Defend was due, can only serve to encourage abuses of the Boards processes and delaying the resolution of labour relations issues that ought to be addressed efficiently and expeditiously in accordance with the purposes of the Act.
[108] Bomanite had been on notice of the Carpenters’ claim for damages for Bomanite’s breach of the collective since September 12, 2019. There is no unfairness to Bomanite who is now facing the consequences of its choice not to participate in the Grievance or the JD.
G. Conclusion
[109] For the reasons set out, I find neither procedural unfairness nor unreasonableness in respect of the Default Decision or the Reconsideration Decision. I further find that in both decisions, the Board has achieved a fair result and has achieved the efficient and expeditious resolution of this labour dispute in accordance with the purposes of the Act.
[110] This application is dismissed.
[111] As agreed, costs are fixed at $5,000 payable by Bomanite to the Carpenters.
Sheard J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Perell J.
Released: February 16, 2022
2022 ONSC 1054
DIVISIONAL COURT FILE NO.: 273/21
DATE: 20220216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Perell, Sheard JJ.
BETWEEN:
BOMANITE TORONTO LTD.
Applicant
CARPENTERS AND ALLIED WORKERS LOCAL 27, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 and ONTARIO LABOUR RELATIONS BOARD
Respondent
REASONS FOR JUDGMENT
Released: February 16, 2022
[^1]: A jurisdictional dispute may be brought under s. 99 of the Act when, for example, a complaint is made that an employer was assigning work to persons in a particular trade union rather than to persons in another.
[^2]: Industrial, commercial, and institutional.
[^3]: Ontario Labour Relations Board, Rules of Procedure.
[^4]: Reconsideration Decision, at para. 20.