CITATION: Reliable Choice Contract Inc. v. Ontario Council of International Union of Painters and Allied Trades, 2022 ONSC 1497
DIVISIONAL COURT FILE NO.: 915/21
DATE: 20220314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Wilton-Siegel and Matheson JJ.
BETWEEN:
Reliable Choice Contract Inc. o/a Reliable Choice Painting and Drywall and Reliable Choice Contracting Inc.
Applicant
– and –
Ontario Council of International Union of Painters and Allied Trades
Respondent
P. Robson and S. Chhina, for the Applicant
R. Gibson and M. Wallbridge, for the Respondent
A. Hart and A. Bowker, for the Ontario Labour Relations Board
HEARD at Toronto (by videoconference): February 14, 2022
[1] The applicant (“Reliable”) seeks judicial review of a reconsideration decision dated October 29, 2021 of Neil Keating, Vice-Chair of the Ontario Labour Relations Board (the “Decision”), which confirmed an earlier decision of the Board dated June 16, 2021 (the “June Decision”) and related decisions. The June Decision certified the respondent Ontario Council of International Union of Painters and Allied Trades (the “Union”) under the construction industry provisions of the Labour Relations Act, 1995 S.O. 1995 c. C.1 (the “Act”). Reliable seeks to set aside the Decision and related orders.
[2] This application focuses on procedural fairness. At and after the time Reliable was given notice of the application to certify, it received mixed messages about the manner in which it was to deliver its response and later documents. It did respond, and its response was received, but it did not use the e-filing procedure stipulated on the OLRB’s website until later in the process. This procedural issue was the focus of a series of decisions of the Board, none of which addressed the merits of the response to the application to certify.
[3] For the reasons set out below, we grant the application and remit this matter to the OLRB to be addressed on the merits.
Background
[4] Reliable is a corporation which provides painting and related services in Ontario.[^1]
[5] In early June 2021, the Union commenced an application to certify Reliable under the Act (the “Application to Certify”). There is no issue that Reliable is a small business. In its application, the Union submitted that there were eight employees.
[6] Reliable was served with the Application to Certify and related documents on June 7, 2021.
[7] Among the documents provided to Reliable was a Form C-32 Notice to Employer of Application for Certification. That form noted that the response had to be filed with the Board no later than two days after service. It also said that the response could be filed by facsimile, but not by email, although the required schedules could be sent by email.
[8] Further, under the heading “IMPORTANT NOTES” the form had a subheading “E-FILING AND E-MAIL”. That section noted that the Rules of Procedure and Filing Guide set out the “permitted methods of filing” and that the submissions could be filed “by a variety of methods, but not by e-mail.” The form noted that “e-filing is optional.”
[9] Further, the application Form A-71 referred to sending the form to the OLRB by Canada Post’s Priority Courier Service in addition to repeating the above section on “E-FILING AND EMAIL” stating that the Rules of Procedure set out permitted methods of filing and that e-filing was optional.
[10] The OLRB Confirmation of Filing, dated June 7, 2021, and addressed to the parties, contained two different messages about filing. On page 3 it said the following:
In light of the current health situation and government measures, Responses/Interventions must be electronically filed.
In light of the current health situation, please consult the Board’s website for updates to the Board’s Procedures. The Board’s Rules of Procedure and Information Bulletins can also be found on the Board’s website.
[11] That Board Confirmation also included “IMPORTANT NOTES” and the same text under the heading “E-FILING AND E-MAIL” stating that the Rules of Procedure set out permitted methods of filing and that e-filing was optional.
[12] Form A-72, for the response to the application, also included “IMPORTANT NOTES” and the same text under the heading “E-FILING AND E-MAIL” stating that the Rules of Procedure set out permitted methods of filing and that e-filing was optional.
[13] The Rules of Procedure provided that materials must be delivered by facsimile transmission, courier, hand delivery or any other way agreed upon by the parties.
[14] Reliable provided its response to the Application to Certify on June 9, 2021 (the “Response”), which was within the (short) time limit prescribed under the Act. However, it did so via a Canada Post courier service. Given the two-day period to respond, the Response was completed by hand, and without counsel. Reliable objected to the certification application on the basis that Reliable used subcontractors, not employees, and enclosed the subcontracts in its responding materials.
[15] On June 16, 2021, the Board released the June Decision. The Board member did not have the Response at that time. Accordingly, the Board found that Reliable had failed to file a response with the Board within the time stipulated by Rule 25.5 of the Rules of Procedure of the Board and failed to provide the requisite information within the time stipulated by s. 128.1(3) of the Act. The Board certified the Union based on the Union submissions only.
[16] Reliable then retained counsel to seek a reconsideration.
[17] The OLRB request for reconsideration form included the section entitled “E-FILING AND E-MAIL” stating that the Rules of Procedure set out permitted methods of filing and that e-filing was optional.
[18] On July 2, 2021, Reliable delivered a request for reconsideration of the June Decision (the “Request for Reconsideration”) by hand delivery to the OLRB, after Reliable’s legal counsel had received oral confirmation that the OLRB would accept materials filed by hand delivery. A person at the OLRB received and signed for the Request for Reconsideration.
[19] On July 5, 2021, the Board released a decision (the “July 5 Decision”) indicating that it had now received the original Response (that had been sent by courier). However, the Board did not deal with the Response on its merits. It held that the receipt of the Response did not alter the Board’s findings in its June Decision, nor would the Board treat it as a request for reconsideration. There was no mention of the Request for Consideration that had been hand-delivered a few days prior.
[20] In the July 5 Decision, the Board indicated that due to the COVID-19 pandemic it had adapted its processes, requiring that all materials must be filed electronically, referring to a document entitled “Notice to Community”. The Notice to Community was dated March 25, 2020 and was issued when the OLRB shifted to working remotely in response to the COVID-19 pandemic.
[21] The Notice to Community required that any applications and responses be e-filed. It was posted on the Board’s website. The relevant portions, which were set out in the July 5 Decision, read as follows:
The Board will continue to accept applications/responses/ interventions and other submissions and materials. However, all such filings must be made electronically, or they will not be accepted:
• All Board forms and other submissions and material must be filed through the Board’s e-filing process, not regular email, courier, hand delivery or fax.
• Certification and termination applications/responses/ interventions may be electronically filed using the Form A-108 (electronic submissions form).
• E-filing also applies to correspondence and submissions filed with respect to matters currently before the Board.
To be clear, effective immediately, the Board will be unable to accept applications or any other materials that have been mailed, couriered or faxed. Please note that we have also been advised that the Board’s mailroom will be shut down as of today. If you have sent material in hard copy, and receipt has not yet been acknowledged, it would be prudent to re-send this material electronically.
[22] This was the first express notice to Reliable about the Notice to Community. However, it was on the OLRB website, and, as mentioned above, the Confirmation contained a statement that responses must be electronically filed (although in conflict with other parts of that document).
[23] In the July 5 Decision, the Board concluded that Reliable was “free to file a request for reconsideration should it wish to do so, in accordance with the Board’s Rules of Procedure”. As set out above, those Rules permitted filing by hand delivery, which had already been done.
[24] On July 23, 2021, the Board released a further decision (the “July 23 Decision”) stating that the Request for Reconsideration had been received by the Board “by mail” and would not be considered by the Board because it was not e-filed in accordance with the Notice to Community. The Board noted that although the letter said “Hand Delivered” there was “certainly no means of hand delivering documents” at that time. Again, the Board said that Reliable was “free to file a fresh Request for Reconsideration should it wish to do so in accordance with the Board’s Rules of Procedure”.
[25] Despite these repeated references to the Rules of Procedure, those rules did not require e-filing and did permit the filing methods that had been used.
[26] On August 11, 2021, Reliable e-filed the Request for Reconsideration. On August 26, 2021, the Board released a decision setting a timetable for the Union’s reply to the Request for Reconsideration and any reply of Reliable.
[27] On October 29, 2021, the Board released the Decision.
The Decision
[28] In the Decision, the sole issue addressed by the Board was whether to extend the time for filing the Request for Reconsideration. The Board made three findings in dismissing the Request for Reconsideration.
[29] First, the Board found that there was no basis for exercising its discretion to extend the time for filing the Request for Reconsideration. The Board’s reasoning was that it had “provided [Reliable] with clear direction regarding the filing of a request for reconsideration at a time when such a request would have been timely yet [Reliable] did not proceed with urgency.” The Board stated that “[Reliable] instead waited more than another 20 days to file the Request without providing a satisfactory explanation for this delay.” It would appear that these statements pertain to the July 23 Decision and the period following that Decision, not the prior delivery of the Request for Reconsideration.
[30] Second, the Board stated that, even if it were to exercise its discretion to extend the time limit for filing the Request for Reconsideration pursuant to s.114(1) of the Act, it would dismiss the Request for Reconsideration. However, insofar as this statement suggests that the Board considered the June Decision on its merits, including the evidence of Reliable, the statement is misleading. The discussion in this section of the Decision pertains to a reconsideration of the July 5 Decision in respect of which Reliable did not seek a reconsideration as the Board noted.
[31] The Board then turned to a consideration of whether Reliable was entitled to an extension of time to file the Response based on its assertion that it did not employ any individuals on the filing date of the Application to Certify. In considering this issue, the Board acknowledged that the Board has accepted, in other cases, that such an assertion constituted sufficient grounds to grant leave to file a late response (and by extension a late request for reconsideration). However, the Board concluded that a mere assertion to such effect does not result in leave as of right. Instead, the Board must look at each case on its own facts and consider, among other factors: (1) whether the respondent had provided compelling reason(s) explaining why its response was filed late; (2) the prejudice to the applicant union in the circumstances; and (3) whether other serious issues have been raised to warrant the Board exercising its discretion to accept a late-filed response (or request for reconsideration).
[32] In reaching its determination, the Board stressed Reliable’s delay in filing the Request for Reconsideration in accordance with the Notice to Community. The Board noted that Reliable focussed instead on its position that it was not the true employer in the bargaining unit. The Board acknowledged that “[t]he facts as put forward by [Reliable] may give rise to a true employer argument in the normal course but [Reliable] offered no compelling explanation for why [it] did not raise the issue earlier”. The Board then considered the prejudice to the Union and the need for finality in its decision-making.
[33] The Board’s disposition of this issue, and of the Request for Reconsideration in its entirety, is set out in the following passage:
By way of summary [Reliable’s] position that it is not the employer of individuals in the bargaining unit on the application filing date is not sufficient, by itself, to warrant revocation of the certificates that have been issued in this case. Otherwise the unparticularized explanation that the delay in this matter is somehow related to the ongoing pandemic is not compelling or persuasive to the Board. For these reasons and considering the prejudice to the [Union] that would occur if the certificates were revoked and the need [sic] finality in the Board’s decision making [Reliable] [has] not met [its] burden with respect to the Request and the Board is not prepared to reconsider the Decision.
[34] Accordingly, the Board considered the factors that are typically considered in respect of an extension of time (rather than reconsidering the merits of the June Decision). The Board considered that those factors weighed against a reconsideration of the substance of the June Decision notwithstanding the Board’s acknowledgement that “the facts as put forward by [Reliable] may give rise to a true employer argument in the normal course.”
Related production order
[35] Some steps have since been taken by the Union on the basis of the Board’s decision to certify. The Union scheduled a grievance hearing for December 8, 2021. By a ruling dated December 8, 2021 (the “Production Order”), the Board ordered the Applicant to produce certain documentation by January 7, 2022. Reliable also seeks to set aside this order.
Procedural fairness issue
[36] On this application for judicial review, the central issue is whether there was a breach of procedural fairness in relation to the Response and the disposition of the Request for Reconsideration, given the particular history of this matter. Reliable submits that the OLRB’s process, as communicated and applied here, was unfair, commencing with the June Decision through to and including the Decision. Reliable submits that, as a result, it has been denied a reconsideration of the June Decision on the important question of certification.
[37] Because the issues on this application relate to procedural fairness, there is no standard of review. In order to determine whether there was procedural fairness, we have considered the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[38] In reviewing the Baker factors, we agree that we should show proper deference to the Board’s choice of procedure: International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers, at para. 65.
[39] However, in this case, the Board’s choices contributed to the problems. The Board’s own forms and Rules of Procedure were in conflict with the Notice to Community. Reliable was repeatedly referred to the Board’s Rules of Procedure, yet the Rules did not reflect the change put forward in the Notice to Community.
[40] It was not until January 2022 that the Rules were amended to refer to the Notice of Community. The current Rules now include a new rule – Rule 1.5 – as follows:
Due to emergencies or other circumstances, the Board may post a Notice to Community on its website. Where the requirement in that Notice conflicts with these rules the requirements in the Notice to Community will prevail for as long as the Notice of Community is in effect.
[41] There was no such rule at the relevant time.
[42] In response to questions raised by this court about the status of the Notice to Community, the Board relied on the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched. 3 (the “HTP Act”), specifically sections 3 and 4.
[43] The Board relied on s. 3(2), which provides that a tribunal may make any orders or give any directions that it considers appropriate regarding the format of a hearing and its conduct and matters ancillary to a hearing. The Board submits that the Notice to Community was such a “direction”. The Board then relied on s. 4(2) of the HPT Act to address the inconsistency between the Notice to Community and its Rules of Procedure. Subsection 4(2) resolves an inconsistency in favour of an order or direction given under the HPT Act.
[44] It is not clear that s. 3 is broad enough to include the procedure for filing a response to an application to certify. Section 3 is very focused on steps taken in relation to hearings as defined in the HPT Act. However, assuming that s. 3 is broad enough, the Board has not established that the Notice to Community was a “direction” as contemplated by the HPT Act.
[45] More significantly, even if the Notice to Community was a “direction” it is at best confusing for the Board to repeatedly refer Reliable to the Rules of Procedure when the Rules were inconsistent with, and silent about, the Notice to Community.
[46] On this Baker factor, we conclude that the impact of the Board’s procedural choices is lessened given the inconsistencies in the Board’s own communications, Rules of Procedure, and other materials about the filing process.
[47] Moving to the other Baker factors, the nature of the decision being made was certification of a union. That issue, certification, was of great importance to both Reliable and the Union. Here, the two-day time period had a labour relations purpose. That time period was met by Reliable, in accordance with some of the Board communications and the Rules of Procedure.
[48] Other relevant context includes the Board’s attempts to respond to the COVID-19 pandemic, including the Notice to Community and a passage in its Confirmation referring to the website (albeit in conflict with other parts of that document). As a practical matter, Reliable submits that at the time it did not see itself as part of the OLRB “community”, but we accept that the Notice to Community was intended for all audiences. Given all the other problems with the OLRB communications, the choice of name for the notice is not a significant issue.
[49] Much of the confusion about filing process, and conflicting OLRB documentation, could be explained by saying that the Board’s implementation of the process change was imperfect because of the challenges dealing with the pandemic. That would be understandable. However, the Board did not take that approach with Reliable, instead being rigid about compliance with a notice on its website despite the Rules of Procedure and other documents under which it did receive the documents in proper and timely way.
[50] Overall, we find that procedural fairness required that Reliable’s efforts not be defeated by selective reliance on the Notice to Community without due regard for the confusion in the OLRB’s own Rules and communications and Reliable’s good faith efforts to meet the Board’s process. Unlike Carpenters’ District Council of Ontario v, Viva Homes, a case cited in the Decision, this is not a case of the company deliberately ignoring statutory time limits. Nor is it akin to Schuit Plastering & Stucco Inc. v. Ontario Labour Relations Board, where the company did not respond to the application to certify. Here, Reliable did respond, and did so within the required two days.
[51] We conclude that there was a breach of procedural fairness in the particular circumstances of this case. In summary:
(i) The OLRB did not communicate its e-filing requirement in a clear and consistent manner such that Reliable ought to have known that it was required to file the Response and the Request for Reconsideration in that manner. The initial package of documents received by Reliable contained information about how to respond, which permitted the approach taken by it and repeatedly referenced the OLRB Rules of Procedure, which permitted the manner of filing used by Reliable. In particular, the OLRB Confirmation of Filing, although referring to the change to e-filing, also indicated that there were other manners of filing under the Rules of Procedure, and that section was in a section described as important. The Confirmation also did not refer to the Notice to the Community; it included only a general reference to the website along with a reference to the Rules of Procedure and Guidelines of the Board. Finally, the Rules of Procedure did not refer to the Notice to the Community or the change to e-filing.
(ii) Under the Act, Reliable had two days to respond to the Application to Certify. It did so without the benefit of counsel given this timing. There then followed a series of interactions between the Board and Reliable from which it is apparent that the Board received the Response and the Request for Reconsideration and that the Board should have appreciated that these documents had been filed in timely fashion albeit not in the manner set out in the Notice to Community.
(iii) Rather than recognize that Reliable opposed the Application to Certify and was attempting to present its position from the outset, the Board chose to avoid a determination of the substantive issues by reliance on a procedural requirement of doubtful validity. The Board refused to treat the Response as a request for reconsideration, or to accept the Request for Reconsideration, in its first two decisions in July. Instead, it repeatedly said that Reliable was free to file a request for reconsideration (again) thereby extending the time before any decision would be made on the Request for Reconsideration. Moreover, in doing so, if did not indicate that Reliable would also need to seek an extension of time for filing its Request for Reconsideration.
(iv) When the Request for Reconsideration was finally decided, it was dismissed based on timeliness and a failure to request an extension of time for filing the Request for Reconsideration, denying Reliable a reconsideration of the Board’s decision to certify. However, the issue of timeliness was principally of the Board’s own making. It was the result of the Board’s selective reliance on the Notice to Community without due regard for the confusion in the OLRB’s own Rules and communications and Reliable’s good faith efforts to comply with the Board’s procedural requirements. It could have been avoided altogether if the Board had chosen to regularise the process when the Response came to light rather than persisting in requiring rigid compliance with a notice on its website despite the OLRB’s Rules of Procedure and other documents under which the documents had been filed in proper and timely way.
[52] We therefore conclude that the Decision cannot stand. Fairness requires that there be a reconsideration focused on the merits of the Response, not on timeliness or the manner of filing.
[53] However, we are not prepared to interfere with the Production order on this appeal. It is for the Board to first decide how to address that order in view of this decision.
[54] We note that there were other issues raised by Reliable about the Decision, which need not be addressed in these circumstances.
Orders
[55] This application is granted. The Decision is quashed, and this matter is remitted back to the Board for the June Decision to be reconsidered on the merits, by a different member of the Board, on the basis that the Response and the Request for Reconsideration were properly delivered.
[56] The parties agree that the Board will not be required to pay costs. The Union shall pay costs fixed at the agreed amount of $10,000, all inclusive.
Justice Backhouse
Justice Wilton-Siegel
Justice Matheson
Released: March 14, 2022
Reliable Choice Contract Inc. v. Ontario Council of International Union of Painters and Allied Trades, 2022 ONSC 1497
DIVISIONAL COURT FILE NO.: 915/21
DATE: 20220314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Wilton-Siegel and Matheson JJ.
BETWEEN:
Reliable Choice Contract Inc. o/a Reliable Choice Painting and Drywall and Reliable Choice Contracting Inc.
Applicant
– and –
Ontario Council of International Union of Painters and Allied Trades
Respondent
REASONS FOR decision
Released: March 14, 2022
[^1]: At the outset of the hearing, counsel for the applicants notified the court that the second named applicant is a defunct company. Nothing turns on this change in status of the second named company. These reasons for decision therefore refer to the applicant as Reliable Choice Painting.