Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2022 ONSC 3554
CITATION: Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2022 ONSC 3554
DIVISIONAL COURT FILE NO.: 18/20
DATE: 20220615
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Pomerance and Kurke JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
THE DANIELS GROUP INC., THE BUILDING UNION OF CANADA and ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Ronald N. Lebi, for the Applicant
Robert Gibson, counsel for The Building Union of Canada and agent for The Daniels Group Inc., Respondents
Aaron Hart, for the Ontario Labour Relations Board
HEARD at Toronto (by videoconference): June 8, 2022
Swinton J.:
Overview
[1] The Labourers’ International Union of North America, Local 183 (“LIUNA” or the “applicant”) seeks judicial review of four decisions of the Ontario Labour Relations Board dated February 14, 2018 (2018 7344); August 21, 2018 (2018 80066); October 15, 2019 (2019 97838); and January 6, 2020 (2020 660). As a result of those decisions, the Board dismissed LIUNA’s application for certification of a bargaining unit in the construction industry.
[2] The applicant argues that the Board’s decision to dismiss its application was unreasonable and should be set aside. For the reasons that follow, I would dismiss the application for judicial review, as the applicant has not demonstrated that the Board’s decision was unreasonable.
Factual Background
[3] There is a lengthy history to this case, which has been set out in detail in the Board’s decision of October 15, 2019. It is not necessary for present purposes to describe this history in exhaustive detail. A brief summary will suffice to demonstrate that the applicant’s litigation strategy – marked by the following steps – added significant time and complexity to the proceedings:
- the applicant’s decision to proceed under s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “Act”) rather than s. 8 of the Act;
- the applicant’s failure to name The Building Council of Canada (“BUC”) in the initial application;
- the applicant’s initial assertion that it held bargaining rights for the employees in question;
- the applicant’s argument that BUC had abandoned bargaining rights for the employees in question; and
- the applicant's failure to identify an appropriate bargaining unit.
[4] The application for certification was one of 24 such applications filed against members of the Metropolitan Toronto Apartment Builders Association. The applicant brought its application against The Daniels Group (“Daniels”) pursuant to s. 128.1 of the Act. It sought to represent hoist operators employed by Daniels in Area 8 working less than 50% of the time loading and unloading material from hoists. Of the 24 applications, this was the only application that involved an attempt to displace an incumbent union, BUC.
[5] Section 128.1 applies only to the construction industry, and it sets out a process that allows an applicant to seek a determination of employee support in the bargaining unit based on a count of membership cards. With respect to the Daniels application, the applicant submitted membership cards for three employees.
[6] As the Board explained in its decisions, an application seeking to displace an incumbent union is normally brought pursuant to s. 8 of the Act, where there is an automatic representation vote. However, the applicant did not initially name BUC as a party to its application. BUC successfully sought intervenor status, claiming that it already represented the employees in the proposed bargaining unit as part of a much broader bargaining unit.
[7] The applicant, having started its application pursuant to s. 128.1, submitted that it was already the lawful bargaining agent for the employees it sought to represent. The Board rejected that proposition in a decision in May 2017.
[8] The applicant then sought to convert its application to a s. 8 proceeding, but the Board refused to do so in its February 14, 2018 decision. It also refused to exercise its discretion pursuant to s. 128.1(13) to order a representation vote.
[9] The applicant then argued that BUC had abandoned its bargaining rights. In its August 21, 2018 decision, the Board rejected this argument and also dismissed the application as untimely at the date of filing.
[10] The applicant sought judicial review, but the Divisional Court held on May 23, 2019 that the application for judicial review was premature, given the failure to seek reconsideration at the Board.
[11] Reconsideration was sought. In a decision dated October 15, 2019, the Board held that it had erred in finding the application for certification was untimely. However, it refused to order a representation vote pursuant to s. 128.1(13), which states:
If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it may,
(a) certify the trade union as the bargaining agent of the employees in the bargaining unit; or
(b) direct that a representation vote be taken.
The Board held that the subsection requires the determination of an appropriate bargaining unit before a representation vote can be ordered, and there had yet to be a determination of the bargaining unit. The Board rejected the bargaining unit proposed by the applicant, which would have covered Daniels employees only in Area 8. Instead, the Board relied on the mirror principle usually applied in displacement applications and determined that the appropriate bargaining unit would be similar to the much broader bargaining unit represented by BUC, the incumbent union, with the exception of the industrial, commercial and institutional sectors.
[12] Having determined the appropriate bargaining unit, the Board refused to direct a representation vote under s. 128.1(13)(b) of the Act since there was no evidence to show that the applicant had more than 55 percent, or even 40 percent, support amongst employees of the appropriate bargaining unit. As well, since the determined bargaining unit is not one that the applicant sought to represent, no purpose would be served by directing a representation vote. The application for certification was dismissed.
[13] The Board dismissed the applicant’s request for reconsideration of this reconsideration decision on January 6, 2020 with detailed reasons explaining why the proposed bargaining unit confined to Area 8 was unreasonably narrow and unstable; it was impossible to now determine the level of employee support for the applicant, given the passage of time since the application filing date; and the decision to order a vote pursuant to s. 128.1(13) is discretionary, and it made good labour relations sense to dismiss the application in the circumstances of this case.
The Standard of Review
[14] The standard of review in this application for judicial review is reasonableness.
Issues
[15] The applicant submits that the Board’s decisions were unreasonable on three bases: the Board unreasonably found that the applicant was not prepared to represent the bargaining unit found to be appropriate; it unreasonably refused to determine the applicant’s level of support in the appropriate bargaining unit; and it unreasonably determined that s. 128.1(13) of the Act provides it with the discretion to dismiss an application for certification.
Analysis
[16] There is no merit to these arguments.
[17] With respect to the first issue, the Board reasonably concluded that the applicant did not wish to represent the bargaining unit the Board found to be appropriate. The applicant’s proposed bargaining unit was confined to Area 8, not the province-wide unit of construction labourers found to be appropriate. It was reasonable for the Board to conclude, given the history of the application, that the applicant did not genuinely wish to represent the bargaining unit identified by the Board. As the Board explained in its decision of January 6, 2020 (at para. 27):
I reached the conclusion that Local 183 was not prepared to, or does not desire to, represent the bargaining unit found to be appropriate for bargaining in this proceeding because Local 183 indicated in its submissions to the Board on July 30, 2019 that it “cannot be certified for a bargaining unit that mirrors the BUC unit”. Simply put, Local 183 asserted that it was not legally capable of being certified for any bargaining unit that mirrored the BUC unit. Correct or not, it was entitled to take that position. Given that Local 183 was of the view that it could not be certified for a bargaining unit that mirrors the BUC unit, I did not consider it a huge leap from that position to conclude that Local 183 was not prepared to or did not desire to represent the unit of employees I determined to be appropriate for bargaining.
[18] With respect to the second issue, the applicant submits that the Board failed to carry out its obligation under the Act to determine the level of support in the bargaining unit. The Board carefully explained why it could not determine employee support in the bargaining unit at the time of the application in a manner that would be fair to all parties, given the passage of time. As the Board explained, again in the January 2020 decision (at para. 21):
I did not refuse to determine the level of support enjoyed by Local 183 in the unit of employees I found to be appropriate for bargaining in my decision dated October 15, 2019. In fact, subsection 128.1(13) of the Act, which was the primary focus of Local 183’s argument, assumes that such a determination will be made. The critical problem is that I was (and remain) unable to make that determination, because there is no evidence before me as to the number of employees who were at work in the appropriate bargaining unit on the application filing date. For the reasons set out in paragraphs 102 to 105 of my October 15, 2019 decision, it is simply not possible at this late date to determine the denominator from which the degree of support that Local 183 has in the unit of employees I found to be appropriate for bargaining can be calculated.
[19] The Board did not refuse to determine the level of support held by the applicant. It reasonably concluded that such a determination could not be made in the circumstances of this case.
[20] The applicant argues that the delay was the fault of the Board, and that it failed to identify the appropriate bargaining unit in a timely manner. However, the Board could not determine the appropriate bargaining unit until it determined whether there was an incumbent union, and whether it was the applicant or BUC. The applicant failed to recognize BUC’s status; it claimed that it represented the employees, and finally, argued that BUC had abandoned its representation rights. These assertions took time to litigate, although each was ultimately rejected by the Board. There was delay, but it was directly attributable to the applicant’s litigation strategy. Given the mirror principle, the Board reasonably had to know which, if any union, already had bargaining rights before it could identify an appropriate bargaining unit.
[21] That brings me to the third issue. The applicant argues that s. 128.1(13) requires the Board to either order certification or a representation vote, but there is no discretion to dismiss the application, as the Board did here. Counsel submits that the Board read in a new power to dismiss on the basis that it was “consistent with the provisions of the Act”.
[22] In a judicial review, the Court must start with the reasons of the Board. In the October 2019 decision, the Board carefully explained why it would not order a representation vote (at para. 101):
There is no evidence before the Board to establish that Local 183 has more than 55 percent employee support in the unit that I have found to be appropriate for bargaining. In fact, there is no evidence before the Board that Local 183 has even 40 percent support amongst the employees of Daniels in that unit. That is because we do not know the number of employees of Daniels that constitute the denominator of the simple mathematical calculation required to establish that percentage. Daniels may have employed construction labourers on the application filing date in the appropriate bargaining unit in areas of Ontario outside of Board Area No. 8. We do not know, because Daniels has not filed a Schedule “A” list that contains the names of its employees at work in the appropriate bargaining unit on the application filing date. It has never been required or directed to do so.
[23] The reference to 40% and 55% employee support arises because s. 128.1(12) provides that the Board shall direct a representation vote if it is satisfied that the applicant’s support is between 40% and 55% of the employees in the bargaining unit. Subsection 128.1(13), quoted earlier, states that the Board may order certification or order a representation vote if employee support is greater than 55%.
[24] The Board considered whether it should order Daniels to file a Schedule A list and concluded that to do so would cause irreparable prejudice to BUC (at paras. 102-103). With the passage of time, it would be very difficult for BUC to conduct an investigation of the bargaining unit status of those on the list. As the Board stated (at para. 105):
More than three years after the application filing date, a hearing to examine the work tasks performed by previously unidentified employees of Daniels on April 26, 2016, and how long they spent performing those tasks on that date, would be nothing less than a farce.
[25] Having found that the applicant did not wish to represent the bargaining unit found to be appropriate, the Board exercised its discretion to refuse to order a representation vote. The Board stated (at para. 106), “subsection 128.1(13) provides the Board with the discretion to choose one option, or the other, or to do something else that is consistent with the provisions of the Act.”
[26] In the further reconsideration decision of January 6, 2020, the Board reaffirmed the analysis in paras. 106-108 of the October 2019 decision. The Board elaborated on its reasoning for dismissing the application pursuant to s. 128.1(13), and it is useful to quote that analysis (at paras. 31-33):
As pointed out by counsel for the BUC, what is clear at this juncture is that it is not possible to move forward with this proceeding. The reason for not being able to do so is identified above, and in my decision dated October 15, 2019. In these circumstances, for the reasons previously provided, subsection 128.1(13) of the Act must be read to provide the Board with the authority to dismiss an application. Otherwise, a displacement application such as this proceeding, one that cannot move ahead, would simply remain in limbo indefinitely.
To allow a displacement application to remain alive indefinitely in these circumstances is poor labour relations. It would also result in absurdities. By way of example, having regard to subsection 111(3) of the Act, the effect of leaving this application in limbo would be to preclude the filing of a future displacement application by a third party trade union, or a future termination application by an employee of Daniels, relating to the bargaining rights enjoyed by the BUC with respect to Daniels. Practically, this application by Local 183 would act to bar any future challenge to the bargaining rights for Daniels currently enjoyed by the BUC.
To reach such a result would be inconsistent with two of the stated purposes of the Act, namely facilitating collective bargaining between employers and trade unions that are the freely-designated representatives of the employees, and the expeditious resolution of workplace disputes. To interpret the Act to reach such a result would be, in the words of counsel for Local 183, not “remotely synchronous with reason”.
[27] The use of the word “may” in s. 128.1(13) is significant, given that many of the other subsections of s. 128.1 use the word “shall”. The applicant argues that the subsection gives the Board only two options – order certification or a representation vote. However, the word “may” confers a discretion on the Board – it can order a representation vote or it can refuse to do so. It “may”, or it “may not”. Here, the Board reasonably refused to do so, given the lack of evidence respecting the percentage of employee support enjoyed by the applicant, the inability to determine those percentages given the passage of time, and the conclusion that the applicant did not seek to represent the province-wide bargaining unit.
[28] The applicant argues that the Board essentially rewrote the statute, adding a new paragraph to s. 128.1(13): The applicant argues that the section, as defined by the board, provides:
If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it may,
(a) certify the trade union as the bargaining agent of the employees in the bargaining unit; or
(b) direct that a representation vote be taken;
“or (c) do anything consistent with the provisions of the Act.”
[29] We do not read the Board’s decisions as rewriting the statute, or creating a new authority or provision that allows “anything” consistent with the Act. The reasons as a whole make clear that the Board simply ruled that it could dismiss the application under s. 128.1(13), and that to do so in the circumstances of this case was consistent with the purposes of the Act. This was a reasonable conclusion given the applicant’s failure to show that a representation vote was warranted. As noted by the Board, not to dismiss the application would be to leave an unmeritorious application in limbo, which would frustrate the legitimate and overarching objectives of the Act.
[30] In short, each of the Board’s decisions was reasonable. The Board gave clear and logical reasons for its conclusions, and the outcome – the dismissal of the certification application – was a reasonable outcome in the particular circumstances of this case.
Conclusion
[31] Accordingly, the application for judicial review is dismissed.
[32] The applicant shall pay costs in the agreed upon amount of $3,000 to BUC and Daniels. No costs are sought by or awarded to the Board.
___________________________ Swinton J.
I agree
Pomerance J.
I agree
Kurke J.
Date of Release: June 15, 2022
CITATION: Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2022 ONSC 3544
DIVISIONAL COURT FILE NO.: 18/20
DATE: 20220615
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Pomerance and Kurke JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
THE DANIELS GROUP INC., THE BUILDING UNION OF CANADA and ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: June 15, 2022