CITATION: Strasser & Lang v. Carpenters’ District Council of Ontario et al., 2023 ONSC 2247
COURT FILE NO.: DC-22-003; DC-22-004
DATE: 2023/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, Williams, JJ.
BETWEEN:
1778767 ONTARIO INC. o/a STRASSER & LANG
Applicant (22-003)/Respondent (22-004)
– and –
CARPENTERS’ DISTRICT COUNCIL OF ONTARIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
– and –
MICHAEL PETERSON, BRIAN MORTENSEN, JAMES KING, GRANT ADAIR, GREG ROST, CHRISTOPHER ARNING and SCOTT CLUTCHEY
Intervenors (22-003)/Applicants (22-004)
Derek T. Noyes, Lawyer for the Applicant/Respondent 1778767 Ontario Inc. o/a Strasser & Lang
Robert D. Whillans and Sukhmani Virdi, Lawyers for the Respondents, Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America
Aaron Hart and Andrea Bowker, Lawyers for the Respondent, Ontario Labour Relations Board
Jeremy McLeish, Lawyer for the Intervenors/Applicants
HEARD: December 5, 2022
REASONS FOR DECISION
Justice H. J. Williams
Overview
[1] Strasser & Lang[^1] and seven of its employees[^2] seek judicial review of two decisions of the Ontario Labour Relations Board (“the Board”). Strasser & Lang and the employee group have each brought an application for judicial review. The employees also intervened in Strasser & Lang’s application.
[2] On March 11, 2022, Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (“the union”) applied to the Board seeking to be certified as the bargaining agent for a bargaining unit of Strasser & Lang employees. The Board granted the application on March 21, 2022.
[3] Strasser & Lang and the employee group both filed requests for reconsideration of the March 21, 2022 decision. On May 6, 2022, the Board upheld the March 21, 2022 decision.
[4] Strasser & Lang and the employee group now argue that the March 21, 2022 certification decision and the May 6, 2022 reconsideration decision were procedurally unfair and unreasonable.
[5] For the reasons that follow, I would dismiss their applications.
Background Facts
[6] Strasser & Lang operates a roofing and construction business in Thunder Bay. The company provides roofing and other construction services in the industrial, construction and institutional or “ICI” sector and other sectors of the construction industry.
[7] The seven employees are carpenters employed by Strasser & Lang at the material time.
[8] In its March 11, 2022 application, the union requested a “card-based certification” under s. 128.1 of the Labour Relations Act, 1995[^3],“LRA”. Under s. 128.1 of the LRA, a construction union may be certified without a representation vote if the union has obtained and filed membership evidence from more than 55 per cent of the employees working in the bargaining unit on the application filing date.
[9] In its application, the union said it had membership evidence demonstrating the support of more than 55 percent of the employees in the proposed bargaining unit. The union said it believed there were nine employees in the proposed bargaining unit performing bargaining unit work on the date of application.
[10] Strasser & Lang was served with the application on March 15, 2022.
[11] Upon receipt of the application, Strasser & Lang was required to post a copy of the application and a notice to employees, immediately, in a place where its employees would be likely to see them. The notice to employees said that if an employee wanted to say something to the Board about the application or to participate in the Board’s proceeding, they were required to file a statement with the Board not later than five business days after the date of the application. The notice indicated that the date of the application was March 11, 2022. In its request for reconsideration, Strasser & Lang said the application was posted the day it was received, March 15, 2022. A confirmation of posting filed with the Board stated that the application and the notice were posted March 17, 2022 at 8:15 a.m.
[12] Strasser & Lang’s response to the application was filed with the Board on March 17, 2022. Schedule “C” of the response included the following submissions:
a) Strasser & Lang said there were 12 (and not nine, as the union believed) employees at work in the bargaining unit on the date of the application.
b) Strasser & Lang said the union had contravened s. 76 of the LRA by using misrepresentation, coercion, threats, intimidation, trickery and other illegal conduct to obtain membership evidence in support of the application. Strasser & Lang said that on March 11, 2022, a union organizer, Alex Drainville, visited two of Strasser & Lang’s four worksites and coerced or tricked five of the seven employees “among others” into signing union membership cards. Strasser & Lang said Mr. Drainville told the employees he had been sent by the company Strasser & Lang was working for, that the employees were on a union job site, that the employees were entitled to have their wages “topped up” for the project they were working on, that he required the employees’ names, addresses and contact information in case they worked on a union site in the future and that the employees were required to sign “temporary work cards” and/or “temporary work permits” to “continue working on the project”. Strasser & Lang said Mr. Drainville gave the employees documents and writing utensils and told them to sign the document so that he could process their top-up payments. Strasser & Lang said the employees relied on Mr. Drainville and signed the documents he gave them without reading them thoroughly or at all. Strasser & Lang said the employees understood their wages would be “topped up” and were not afraid that they were signing up to become full members of the union.
c) Strasser & Lang said that on March 14, 2022, the employees told its president, William Boquist, what had happened on March 11, 2022. Strasser & Lang said Mr. Boquist told the employees he was not aware of any “top up” or of any requirement that employees sign anything to continue to work on a site. Strasser & Lang said Mr. Boquist wondered whether the employees had signed union cards and that, “[s]ensing his employees’ confusion”, Mr. Boquist advised them to contact the person who had visited the worksites to ask for further information about what they had signed.
d) Strasser & Lang said that after learning that Mr. Drainville was affiliated with the union, some employees attempted unsuccessfully to communicate with the union. Strasser & Lang said the employees then tracked down and spoke with Mr. Drainville. Strasser & Lang said the employees recorded a conversation with Mr. Drainville in which he told them that it was too late for them to do anything. Strasser & Lang said that many employees then sent forms to Mr. Drainville, indicating that they wished to cancel their membership in the union. Strasser & Lang said it believed that attempts were also made to fax documents to the Board that stated that the employees did not wish to be represented by the union.
[13] On March 21, 2022, Board Vice-Chair M. David Ross issued a decision certifying the union as the bargaining agent for carpenters and carpenters’ apprentices employed by Strasser & Lang in the industrial, commercial and institutional sector of the construction industry in Ontario and in all sectors of the construction industry in the District of Thunder Bay, excluding the industrial, commercial and institutional (“ICI”) sector.
[14] On April 6, 2022, the seven employees filed an application in which they sought to terminate the union’s bargaining rights in the ICI sector. (The application was subsequently dismissed for procedural reasons and is not at issue in the applications before this court.)
[15] On April 18, 2022, Strasser & Lang filed a request for reconsideration of the Vice-Chair’s March 21, 2022 decision. On April 20, 2022, the seven employees filed their own request for reconsideration.
[16] On April 21, 2022, the Vice-Chair gave the union until May 5, 2022 to file submissions in response to the requests for reconsideration. The union filed its response on May 5, 2022.
[17] On May 6, 2022, the Vice-Chair released a 12-page decision in which he dismissed both requests for reconsideration.
The Standard of Review
[18] When considering whether there has been a denial of procedural fairness, the court must determine whether the required level of procedural fairness has been accorded in the circumstances of the case: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. It is well established that procedural fairness is a question of law and therefore the standard of review is correctness.[^4]
[19] Following Canada (Minister of Citizenship and Immigration) v. Vavilov^5, the presumptive standard of review on judicial review is reasonableness. The Board’s decisions, apart from issues raised of procedural fairness, are, therefore, to be reviewed on a reasonableness standard.
The March 21, 2022 certification decision
Summary of the decision
[20] The Vice-Chair found that, based on the information in the application and that provided by the employer under s. 128.1(3) of the LRA,[^6] he was satisfied that more than 55 per cent of the employees in the bargaining unit were members of constituent locals of the union at the time the application was filed. The Vice-Chair determined that the applicant had filed evidence on behalf of seven persons whose names appeared on the list of employees submitted by the employer. He found there was nothing raised in the application or the response that would cause the Board to consider directing a representation vote. He found that the Board had received no objection from any employee within the time limit in the notice to employees provided to Strasser & Lang for posting. The Vice-Chair was satisfied that the Board should certify the applicant.
[21] The Vice-Chair did not mention Strasser & Lang’s allegations about Mr. Drainville’s March 11, 2022 visits to the worksites.
Was the March 21, 2022 decision procedurally unfair?
The applicants’ positions
[22] Strasser & Lang and the seven employees argue that the Vice-Chair’s decision to certify the union without a hearing was procedurally unfair. They submit that, given the serious concerns about the signing of the membership cards raised by Strasser & Lang in its written response to the application, a hearing was required.
[23] Strasser & Lang also argues that a hearing should have been ordered because the Vice-Chair relied on the membership cards to make his decision, and the cards were not available to Strasser & Lang.
[24] The seven employees argue that, given the serious concerns about the signing of the membership cards, the Vice-Chair could not have ascertained the true wishes of the employees without a hearing. The employees also argue that the procedural fairness determination should be made by this court without deference to the Board.
Procedural fairness
[25] The test for evaluating procedural fairness was set out in Baker v. Canada (Minister of Citizenship and Immigration)[^7]. Baker identified and described five factors to be considered: the nature of the decision being made, and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.
[26] Contrary to the submission of the seven employees, the Baker factors are to be considered with deference to the Board, a highly specialized tribunal protected by strong privative clauses.[^8] This court held in International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers[^9]:
“The privative clauses that the Legislature saw fit to include in the Act protecting decisions of the Board from judicial review make it clear that the Legislature intended that decisions of the Board would be afforded substantial deference, including choices of procedure. More importantly, the control of procedure and express power granted to the Board not to hold a hearing are key.”
[27] In making the decisions that are under review by this court, as was the case before this court in International Brotherhood of Electrical Workers Local 1739, the Board was acting not only in its area of general expertise, but also “in a doubly specialized capacity relating to the construction sector, an area of responsibility it was entrusted to regulate in accordance with industry specific legislative rules.” (International Brotherhood of Electrical Workers Local 1739, at para. 47.)
[28] The legislated combination of exclusive jurisdiction and the broad ability to self-regulate process has resulted in long-standing judicial recognition of the Board as “master of its own house”.[^10] Courts will not generally interfere with a tribunal’s procedural decisions, provided they are made fairly and within the tribunal’s jurisdiction.[^11]
Analysis
[29] The Vice-Chair’s March 21, 2022 decision dealt with the certification of a union in the construction industry. The decision was squarely within the jurisdiction of the Board and the applicants do not suggest otherwise.
[30] Construction employment is often episodic and of limited duration, with employees moving from project to project and employer to employer. The LRA recognizes differences between the construction sector and other sectors by devoting a specific part of the Act (ss. 126 to 168) to construction labour relations. This part of the LRA includes procedural provisions applicable only to the construction industry. (International Brotherhood of Electrical Workers Local 1739, at para. 18.)
[31] While the applicants argue the Vice-Chair should not have made the certification decision without a hearing, the LRA and the Board’s Rules of Procedure give the Board wide latitude in respect of procedural decisions, including the decision to hold a hearing. For example:
• Section 110(16) of the LRA provides that the Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.
• Section 110(18) of the LRA authorizes the chair of the Board to make rules to expedite proceedings under sections 126 to 168 of the Act, the sections that apply to the construction industry. Section 110(20) says the rules made under s. 110(18) may provide that the Board is not required to hold a hearing and may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence.
• Rule 41.3 of the Board’s Rules of Procedure applies to sections 126 to 168 of the LRA. The rule recognizes the need for expedition in labour relations matters and provides that where the Board is satisfied that a case or part of a case can be decided on the basis of the material before it, the Board may decide an application “by limiting the parties’ opportunities to present their evidence or to make their submissions, the presentation of evidence and submissions and to make decisions based on the material before it, without a hearing.”
[32] The certification application before the Vice-Chair was made under s. 128.1 of the LRA. This section expressly permits the Board to certify a union based on the membership evidence filed, without a representation vote and without a hearing.
[33] Section 128.1(4) of the LRA sets out the steps the Board is to follow when it receives a certification application. The Board must determine, as of the application date and based on certain, specified information, the bargaining unit and the percentage of employees in the unit who are members of the union:
128.1 (4) On receiving an application for certification from a trade union that has elected to have its application dealt with under this section, the Board shall determine, as of the date the application is filed and on the basis of the information provided in or with the application and under subsection (3),
(a) the bargaining unit; and
(b) the percentage of employees in the bargaining unit who are members of the trade union.
[34] To make the determinations required under s. 128.1(4), the Board is to consider the information provided by the union in the application and information provided by the employer. In an application for certification, a union must file the following: (a) any membership evidence relating to the application; (b) a list of employees, in alphabetical order, corresponding with the membership evidence filed; and (c) a declaration verifying the membership evidence, in a prescribed form. (Rule 25.1 of the Board’s Rules of Procedure.)
[35] Membership evidence is not considered by the Board if it is not in writing and signed by each employee. Membership evidence must accompany the application and disclose the date upon which each signature was obtained. (Rule 25.2 of the Board’s Rules of Procedure.)
[36] Under s. 128.1(3), the employer is required to file a list of names of the employees in the proposed bargaining unit as of the date the application is filed. If the employer disagrees with the bargaining unit, it must file a written description of the bargaining unit it thinks is appropriate, with the names of the employees in that proposed bargaining unit, also as of the date the application is filed.
[37] If the Board considers it appropriate to do so, it may consider evidence and submissions relating to an allegation that section 70, 72 or 76 of the LRA [^12] has been contravened or that there has been fraud or misrepresentation. (LRA, s. 128.1(5).)
[38] The Board may hold a hearing if it considers it necessary in order to make a decision: Section 128.1(6).
[39] Section 128.1(13) provides that 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 certify the union as the employees’ bargaining agent or it may direct that a representation vote be taken.
[40] In this case, as required, the Vice-Chair followed the procedure in s. 128.1(4). He considered the information provided in the application and the response. He noted that none of the employees had contacted the Board to object to the application. In accordance with s. 128.1(13), he determined that more than 55 per cent of the employees in the bargaining unit were members of the union on the date the application was filed, and he certified the union. He found that nothing in the application or the response caused him to consider directing the representation vote he could have directed under s. 128.1(13).
[41] It is clear from the provisions of the LRA and the Board’s Rules of Procedure that the Board was entitled to make a decision based on the information it had before it, and that it was not required to order a hearing. Strasser & Lang was afforded an opportunity to make submissions to the Board. This court held in International Brotherhood of Electrical Workers, Local 1739[^13]:
“A particular choice of forum or procedure is not inherent in the centuries old audi alteram partem maxim. The core value embraced by that principle, at its simplest, is the obligation of a decision-maker to listen to both sides before making a determination.”
That the Board did not accept Strasser & Lang’s submissions does not amount to a denial of procedural fairness.
[42] Strasser & Lang argues that a hearing was required in part because the Board based its decision on membership cards that Strasser & Lang did not have access to. Strasser & Lang concedes that it was not entitled to see the cards because of s. 119(1) of the LRA, which provides that records that may disclose whether a person belongs to a union is for the exclusive use of the Board and is not to be disclosed without leave of the Board. However, Strasser & Lang argues that because it did not have access to the cards, the Board should have directed a hearing, effectively to level the playing field. However, the Board is mandated by s. 128.1(4) and Rule 25.1 to consider the membership evidence filed by a union. By their very nature, certification decisions will be based on membership evidence the employer does not have access to. That the employer did not have access to the membership evidence in this case did not render the Vice-Chair’s decision to decide the application without a hearing procedurally unfair.
[43] The Board is a highly specialized tribunal with considerable expertise and its own procedures, including procedures that apply specifically to the construction industry. The Board’s procedural decisions are entitled to significant deference. In my view, the Vice-Chair was entitled to decide the application on the basis of the material that was before him in this case, without a hearing.
[44] For these reasons, I find that the Board’s March 21, 2022 certification decision was not procedurally unfair.
Was the March 21, 2022 decision unreasonable?
The applicants’ positions
[45] Strasser & Lang and the seven employees argue that the March 21, 2022 certification decision was unreasonable because it did not specifically address the submissions in Schedule “C” to Strasser & Lang’s response to the application.
[46] The seven employees described the decision as “boilerplate” and submitted that, as such, it was reasonable to conclude that the Board either ignored Strasser & Lang’s submissions or did not review them at all.
Analysis
[47] In two recent decisions involving the Board, Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780 and Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, the Court of Appeal considered the proper application of the directives in Vavilov to the reasonableness standard. There are two steps in the reasonableness review. The first step is to focus on the actual decision to see if it is rational and logical. The second step is to consider whether the decision is untenable, in some respect, given the factual and legal constraints that bore on it. (Turkiewicz, at para. 62.)
[48] The primary concern of Strasser & Lang and the seven employees is that the Vice-Chair did not specifically refer to Strasser & Lang’s allegations about Mr. Drainville’s approach to the employees at the worksites on March 11, 2022 and what Mr. Drainville is alleged to have told the employees before they signed the membership cards.
[49] Although the Vice-Chair did not specifically address these allegations, it is apparent from his reasons that he considered them. The allegations were part of Strasser & Lang’s response to the application. In his decision, the Vice-Chair wrote: “There is nothing raised in the application or the response (emphasis added) that would cause the Board to consider directing a representation vote.” It is equally apparent that the Vice-Chair rejected Strasser & Lang’s allegations.
[50] I am satisfied that the Vice-Chair’s reasoning is rationale and logical. He found that 55 per cent of the employees were members of the bargaining unit on the day of the application and he found that the allegations in Strasser & Lang’s response did not warrant a representation vote. In its response, Strasser & Lang had alleged that its employees had been “coerced or tricked” into signing membership cards when they did not want to do so. The response described a flurry of steps taken by the employees to contact the union and to cancel their union memberships. It is evident from the Vice-Chair’s reasons that he considered it significant that, in the context of the alleged circumstances, the Board did not receive any objections from any of the employees.
[51] I turn now to whether the decision was untenable. Vavilov provides that, on a reasonableness review, three factual constraints are pertinent: the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; and the potential impact on the individual to whom the decision applies. (Turkiewicz, at para. 72.)
[52] The Vice-Chair had the following evidence and facts before him:
• The Vice-chair had the seven membership cards, which, under Rule 25.2, were required to bear the date they were signed. Five of the seven cards had been signed before March 11, 2022, the day Mr. Drainville was alleged to have approached the employees. The Vice-Chair disclosed this in his May 6, 2022 reconsideration decision.
• The cards were titled, in capital letters and a large font: “APPLICATION FOR MEMBERSHIP UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA”.
• There was no allegation that any of the employees had difficulty reading or that English was not their first language.
• Strasser & Lang’s response disclosed that the employees did not take any steps to reach out to the union until after they had spoken with Strasser & Lang’s president, William Boquist on March 14, 2022, that Mr. Boquist had queried whether the employees might have signed union cards, and that Mr. Boquist had advised the employees to contact the person who had visited the worksites on March 11, 2022.
• The Board’s notice to employees informed employees that if they wished to contact the Board about the union’s application, they were required to do so within five business days of the date of the application. The notice stated that the date of the application was March 11, 2022.
• No employee had contacted the Board when the Vice-Chair wrote his decision on March 21, 2022, more than five business days after the date of the application.
[53] Although Strasser & Lang argued in its response that the application should be dismissed because all of the membership cards had been obtained through unfair labour practices, the Vice-Chair knew that only two of the seven cards had been signed the day Mr. Drainville was alleged to have visited the worksites and that the other five cards had been signed earlier. There was nothing in the Vice-Chair’s decision to suggest that he did not understand Strasser & Lang’s submissions or that he had ignored them; he simply said there was nothing raised in the response that would cause him to consider directing a representation vote.
[54] I am satisfied that the Vice-Chair would have appreciated the potential impact of his decision. It would have been clear from Strasser & Lang’s submissions that Strasser & Lang strongly opposed certification of the union and that Strasser & Lang was of the view that the employees shared its opinion. As I have already noted, that the Board did not hear from the employees was a factor in the Vice-Chair’s decision.
[55] The legal constraints to be considered when assessing whether a Board decision is untenable include the following: the governing statutory scheme, other relevant statutory and common law, the principles of statutory construction, the past practices and decisions of the administrative body and the relative expertise of the administrative body. (Turkiewicz, at para. 76.) In my assessment of procedural fairness, above, I considered the statutory scheme in which the Vice-Chair was operating. I have already noted that the Board is a highly specialized tribunal and that its decision in this case was in respect of the construction industry, an even more specialized subset of its expertise. I noted that the Board is protected by strong privative clauses. Section 128.1(13) of the LRA confers broad discretion on the Board in respect of union certification decisions, stating that 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, the Board may certify the union.
[56] Having considered the relevant factual and legal constraints, I have no reason to conclude that the Vice-Chair’s March 21, 2022 certification decision was untenable.
[57] Having found that the Vice-Chair’s March 21, 2022 decision was rational and logical, and not untenable, I conclude that it was reasonable.
The May 6, 2022 reconsideration decision
Summary of the decision
[58] At the outset of his May 6, 2022 reconsideration decision, the Vice-Chair said the Board had received requests for reconsideration of its March 21, 2022 decision from both Strasser & Lang and the seven employees. The Vice-Chair noted that the seven employees had also filed an application to terminate bargaining rights under s. 63 of the LRA. (The termination application was subsequently dismissed and was not at issue before this court.)
[59] The Vice-Chair said that he had directed response submissions from the union and that he had considered all of the submissions filed.
[60] The Vice-Chair said the Board does not grant reconsideration lightly because of its mandate to promote the expeditious and final resolution of workplace disputes. He reviewed the circumstances in which reconsideration may be granted.
[61] In his decision, the Vice-Chair reproduced a copy of the card signed by each of the seven employees:
He noted that each employee had filled in by hand the union’s local number, the date, their name and their contact information, and that each had signed the card.
[62] The Vice-Chair noted the following:
• The employer and the employees alleged that the employees signed their membership cards after a union representative made fraudulent misrepresentations to them on March 11, 2022;
• The employer and the employees alleged that the union representative told the employees that he had been sent by the general contractor Strasser & Lang was working for, and that the employees would be paid more money if they provided their contact information on the document he gave them;
• The employees said they never received the money they were promised.
[63] The Vice-Chair found that while all seven employees relied on the same set of facts in their reconsideration request, it was not possible that they had all signed union cards in reliance on what the union representative had told them, because five of the seven had signed their cards before March 11, 2022. The Vice-Chair held there had been no suggestion in the requests for reconsideration that there had been any improper conduct on the part of the union representative before March 11, 2022. He also found it was obvious from the submissions that the employer believed that all seven employees had signed their cards on March 11, 2022.
[64] The Vice-Chair determined that there were several facts that did not support the proposition that the seven employees did not know what they were signing. He found that it was odd that none of the seven had asked the union representative for his name or a business card. He held that the employees knew the union representative was not the general contractor’s foreman, whom they knew. He found that it defied belief that all seven of the employees would believe that an unnamed man would have the authority to remove them from a jobsite their employer had assigned them to.
[65] The Vice-Chair also determined that the document the employees signed, clearly stated that it was an application for membership in the union. He noted that the employees admitted that the union organizer made a connection between working on a unionized jobsite and the potential for making more money. The Vice-Chair noted that it was easy to understand why someone would sign a membership card if they were promised more money for doing so.
[66] The Vice-Chair found that none of the employees had written to the Board during the period following posting of the application for certification to complain about the circumstances surrounding the signing of the cards until after the certificate was issued and after the employer had spoken to them about the application and filed a challenge on their behalf.
[67] The Vice-Chair then cited some previous Board decisions and noted that the Board holds individuals who sign membership cards to an objective standard. He said that when someone writes their name and contact information on a document and signs it, they are expected to have read the document. He noted that the membership card stated in capital block letters and large font that it was an application to join a trade union. He found that the employees signed the cards after being told that working on a union jobsite can get them more money. He found that there were no allegations that any of the employees could not read or understand English or that the document submitted to the Board was not the document they had signed.
[68] The Vice-Chair noted that the employer had correctly identified in its submissions that this was a “change of heart” case.”[^14] He held that in a “change of heart” case, unlike a fundamental misrepresentation case, the Board does not look behind the reasons a person signs a membership card and then changes their mind.
[69] Relying on Board jurisprudence, the Vice-Chair held that to establish a fundamental misrepresentation, the misrepresentation must go to the nature of the document being signed. He said that in this case, the employees said that they had been promised more money for working on a union jobsite. He said the document they signed was clear on its face and the employees did not suggest they could not understand what they were signing. He also found that the submissions did not describe intimidation or coercion that would raise a question about the voluntariness of their signatures. The Vice-Chair held that even if the employees’ submissions had been made in a timely manner, it would not have changed his decision.
[70] The Vice-Chair said the Board is always concerned that an employee’s “change of heart” about signing union cards could have been triggered by their employer’s reaction to a certification application. He found there were more than enough facts in this case to provide the Board with that concern. He noted that none of the employees filed submissions until after the employer had spoken to them about whether they had signed cards. He noted that the employees did not include any facts in their submission about anything that happened before March 11, 2022 that could establish a fraudulent representation, when five of the seven of them had signed their cards before March 11, 2022. He held that this raised a concern that the employees were withholding facts about how they came to sign the cards from whoever wrote the submission on their behalf. He found that this could be because of fear a reprisal. He also noted that the employer, not the employees, had filed the employees’ membership revocations with the Board.
[71] The Vice-Chair then addressed the union’s argument that the employees’ submission appeared to have been written by someone with legal training and found there were inferences that this could be the case. He said his decision did not, however, depend on a finding that someone other than the employees had written their submission.
[72] The Vice-Chair found that the case did not raise any important policy issues the Board had not addressed many times in the past. He held that once an individual signs a membership card, barring extraordinary circumstances that are not present in this case, the Board does not inquire into why they signed the card.
[73] The Vice-Chair determined that he would not address the employer’s submissions on the requirement of good faith in contractual dealings. He said the argument could have been but was not raised in the employer’s response to the certification application, and that it failed on that basis alone. The Vice-Chair also found that because the membership cards were clearly written, and the Board expects people to read documents before signing them, the case cannot be one in which a duty of good faith was breached, if it was owed in the circumstances, and he was not finding that such a duty was owed.
[74] Finally, the Vice-Chair held that if the union representative had taken advantage of the employees, the employees could file an application for termination. He noted that they had in fact done so, and that recourse for any aggrieved employees could be found in that application.
Was the May 6, 2022 reconsideration decision procedurally unfair?
The applicants’ positions
[75] Strasser & Lang argues that the May 6, 2022 reconsideration decision was procedurally unfair because it was not given an opportunity to respond to two issues. It argues that it should have been permitted to make submissions about who prepared the employees’ materials in support of their request for reconsideration and about the dates on which the employees signed their membership cards. With respect to the latter issue, Strasser & Lang argues that it should have been permitted to make submissions about whether the employees had actually signed the cards and about whether they could have made mistakes when they dated the cards.
[76] The seven employees argue the reconsideration decision was procedurally unfair for the same reason the March 21, 2022 decision was unfair—that the decision was made without a hearing.
Analysis
[77] The jurisprudence dealing with procedural fairness in the administrative tribunal context referred to in paras. 25 to 28 of these reasons applies equally here.
[78] Section 114(1) of the LRA provides that the board may, if it considers it advisable to do so, reconsider, vary or revoke a decision.
[79] Rule 18 of the Board’s Rules of Procedure deals with requests for reconsideration. “Complete written representations” must accompany a request. Where a party is directed to file a response to the request, as the union was in this case, the party must include complete written representations in support of its position.
[80] I do not accept Strasser & Lang’s argument that it was unfair for the Vice-Chair not to have given Strasser & Lang an opportunity to comment on the issue of who had prepared the employees’ submission. In his decision, the Vice-Chair said it appeared that the employees’ submissions had been written by someone with legal training, an observation he was entitled to make. However, the Vice-Chair clearly stated that his decision did not depend on a finding that the employees’ submissions were written by someone other than the employees.
[81] I also do not accept Strasser & Lang’s submission that it should have been given an opportunity to make submissions about the dates on which the employees signed their membership cards. In both Strasser & Lang’s response to the certification application and its request for reconsideration, Strasser & Lang had assumed that the seven employees had signed their membership cards when they met with Mr. Drainville on March 11, 2022. The Vice-Chair had no obligation effectively to ask Strasser & Lang whether it would like to change its position.
[82] With respect to the employees’ argument that the Vice-Chair’s decision was unfair because it was made without a hearing, this Court has held that the decision of the Board not to hold an oral hearing is not a denial of natural justice nor procedural fairness where it has otherwise provided the parties an opportunity to set out their representations through written submissions: International Brotherhood of Electrical Workers, Local 1739, at para 61.
[83] Strasser & Lang and the seven employees had an opportunity to submit detailed written submissions in support of their requests for reconsideration. They did so. Strasser & Lang’s submissions were seven pages in length; the employees’ submissions were 27 pages in length. It is evident from his May 6, 2022 decision that the Vice-Chair considered these submissions; he specifically stated that he had done so and he referred to the arguments in the submissions throughout his decision.
[84] For these reasons, I find that the Board’s May 6, 2022 reconsideration decision was not procedurally unfair.
Was the May 6, 2022 reconsideration decision unreasonable?
The applicants’ positions
[85] Strasser & Lang argues that the May 6, 2022 reconsideration decision was unreasonable for the following reasons: the Board relied on “improper evidence”; the Board failed to consider revocation documents signed by the employees which was new evidence relevant to the employees’ desire not to be union members; although the Vice-Chair found that five employees had signed membership cards before March 11, 2022, he did not address the remaining two cards; and the Board failed to consider Strasser & Lang’s argument that the union owed the employees a duty of good faith.
[86] The seven employees argue that the reconsideration decision was unreasonable for the same reasons as the certification decision and also because the Vice-Chair made factual errors and unsubstantiated assumptions based on the materials before him and failed to consider and consistently apply Board jurisprudence. The employees argue the Vice-Chair was wrong when he said that Strasser & Lang had characterized this as a “change of heart” case. They argue the Vice-Chair made an unsubstantiated assumption when he found that it defied belief that the seven employees would all assume that the union organizer, Mr. Drainville, could remove them from the job site. The employees argue the Vice-Chair’s statement that there were enough objective facts to cause him concern that the employees had been influenced by Strasser & Lang’s reaction to the certification application was also unsubstantiated. The employees also argue that the Vice-Chair failed to follow jurisprudence regarding intimidation and coercion, fraudulent misrepresentation and buying memberships.
Analysis
[87] While the Board may, if it considers it advisable to do so, reconsider a decision (s. 114(1) of the LRA), it typically will reconsider a decision only in certain circumstances:
a) Where the decision contains an obvious error;
b) Where the request raises important policy issues which have not been adequately addressed;
c) Where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously, and which could, if accepted, make a difference to the decision; and
d) Where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make.[^15]
[88] Because of the need for finality in labour relations matters, the Board exercises its reconsideration power sparingly. A reconsideration request is not an appeal and is not to be used by a party as an opportunity to re-argue its case or attack a Board’s reasoning or findings of fact. The Board may decide to reconsider its decision in exceptional circumstances such as the following: where the rationale for the decision was inconsistent with Board policy or existing case law; where the party requesting reconsideration has been denied natural justice because it did not receive notice of a hearing or was not provided with the opportunity to lead evidence or make submissions on the issue on which the outcome of the case turned; or where new evidence has come to light that could not reasonably have been discovered earlier, and which would almost certainly be dispositive of the case[^16].
[89] I will consider each the applicants’ arguments in turn.
Strasser & Lang’s arguments
Did the Vice-Chair rely on “improper evidence”?
[90] This argument is in respect of the Vice-Chair’s reliance on the membership cards and his reference to an allegation of the union that the employees had received employer assistance in their proceedings before the Board. I have already considered and rejected both of these arguments in my consideration of Strasser & Lang’s procedural fairness arguments. I have already referred to s. 111(2)(l) of the LRA, which empowers the Board to determine the form in which membership evidence is presented to the Board on a certification application. Further, more generally, s 111(2)(e) of the LRA accords the Board a wide discretion in respect of the evidence it chooses to rely on by permitting the Board to accept any evidence which, in its discretion, it considers proper, whether admissible in a court of law or not.
Did the Board fail to consider new evidence?
[91] Strasser & Lang argues that the Board failed to consider new evidence that had not been before the Board when it certified the union on March 21, 2022. Strasser & Lang argued that the membership revocation documents signed by the employees on March 14, 2022 contradicted the Vice-Chair’s finding that the employees had not objected to the certification application by the time the Board certified the union on March 21, 2022.
[92] The Vice-Chair did not fail to consider the revocation documents. He considered them and found them to be irrelevant. The Vice-Chair said that if the employees had wanted the Board to consider the revocation documents, they could have sent them to the Board before he certified the union, in accordance with the posted notice to employees. The Vice-Chair considered it significant that the employer, and not the employees, had filed the revocation documents with the Board. He also found the employer’s reliance on the revocation documents without the Board’s leave to be a breach of s. 119(1) of the LRA, which protects the confidentiality of membership information.
Did the Board fail to consider the two cards that were signed on March 11, 2022?
[93] Strasser & Lang argues that the Board had failed to consider that, even if five of the membership cards were signed before March 11, 2022, two were signed on March 11, 2022. Strasser & Lang argues that the Vice-Chair improperly reasoned that if five cards were signed without misrepresentations, then all seven must have been signed without misrepresentations. Strasser & Lang argues that if two of the seven cards were found to be invalid, the union could not have been certified without a representation vote, because fewer than 55 per cent of bargaining unit members would have been members of the union.
[94] The Vice-Chair’s reasoning was not, as Strasser & Lang suggested, that because five cards were signed before March 11, 2022 all seven must have been signed without any reliance on misrepresentations. The Vice-Chair found there was no intimidation or coercion that would raise a question about the voluntariness of the signatures on the cards. This finding applied to all seven cards. The Vice-Chair also said that several facts did not support the proposition that the employees did not know what they were signing, including the clear title at the top of the membership card: “Application for Membership United Brotherhood of Carpenters and Joiners of America.” This observation also would have applied to all seven cards.
[95] The Vice-Chair also held that although five of the seven cards had been signed before the complained-about events of March 11, 2022 even occurred, Strasser & Lang obviously believed that all of the cards had been signed on March 11, 2022. As he had in his March 21, 2022 certification decision, the Vice-Chair noted that none of the employees had contacted the Board before the union was certified on March 21, 2022. He also observed they had contacted the Board only after speaking with the employer and after the employer had filed its challenge on their behalf. The Vice-Chair concluded that there were more than enough objective facts in the application to raise a concern that the employees’ “change of heart” about union membership could have been a result of the employer’s reaction to the application for certification.
[96] The Vice-Chair did not fail to consider the two membership cards signed March 11, 2022. Further, his findings in respect of the seven membership cards were reasonable and available to him on the evidence.
Did the Board fail to consider Strasser & Lang’s argument that the union owed the employees a duty of good faith?
[97] The Vice-Chair did not accept this argument, but he did not fail to address it. The Vice-Chair said that Strasser & Lang’s failure to raise the issue on the certification application was fatal to its ability to raise the issue in its request for reconsideration. The Vice-Chair also held that if the duty applied, and he was not finding that it did, the facts of the case did not point to a breach.
The seven employees’ arguments
The Vice-Chair’s reference to a “change of heart” case
[98] I agree with the employees that the Vice-Chair appeared to have understood that Strasser & Lang had conceded that this was a “change of heart” case rather than a misrepresentation case. This was an incorrect interpretation of Strasser & Lang’s position. Strasser & Lang had conceded that that while in a typical application for certification, requests from employees to revoke their union membership would be dismissed as “changes of heart”, in this case, the revocation requests should be considered as objections to the union’s actions.
[99] In my view, nothing turns on the Vice-Chair’s mischaracterization of the employer’s position. The Vice-Chair squarely addressed whether there had been intimidation or coercion at the time the employees signed their membership cards and concluded that the parties’ submissions did not raise a question about the voluntariness of the signatures on the membership cards. The Vice-Chair clearly considered and rejected the argument that the employees would not have signed membership cards had it not been for Mr. Drainville’s alleged conduct.
Did the Vice-Chair make unsubstantiated assumptions?
[100] The employees argue that the Vice-Chair made an unsubstantiated assumption when he said that it defied belief that the seven employees would all assume that the union organizer, Mr. Drainville, could remove them from the job site. The employees say this was an unreasonable finding for the Vice-Chair to have made without a hearing.
[101] I consider this to be a fair observation on the part of the Vice-Chair, based on the evidence, but also not a pivotal finding in his decision. It was one of several observations made by the Vice-Chair which he identified as not supporting the employees’ contention that they did not know what they were signing when they signed the membership cards. The Vice-Chair explained why he made this particular observation: He stated that the employees admitted that they knew that Mr. Drainville was not the general contractor’s foreman, whom they knew, and also that none of them had contacted their employer to confirm that what Mr. Drainville was saying to them was true. This was on top of the fact that Mr. Drainville gave the employees cards that were clearly identified as being applications for membership in a union.
[102] The employees also take issue with the Vice-Chair’s finding that there were more than enough objective facts to cause him concern that the employees had been influenced by the employer’s reaction to the certification application. The employees say this finding is also unsubstantiated. I disagree. In para. 26 of his decision, the Vice-Chair listed the facts he relied on. He noted that none of the employees had filed submissions with the Board until after the employer had spoken to them about whether they had signed membership cards. He also observed that the employees had not disclosed in their submissions that five of them had signed their cards before March 11, 2022; this made him question whether the employees were withholding facts from whoever had written the submission on behalf of the seven of them. The Vice-Chair also noted that the employer, not the employees, had filed the employees’ membership revocations with the Board.
[103] In my view, both impugned comments were reasonable and available to the Vice-Chair on the evidence and submissions before him.
Did the Vice-Chair fail to follow jurisprudence regarding intimidation and coercion, fraudulent misrepresentation and buying memberships?
[104] The employees argue that the Vice-Chair failed to follow Board jurisprudence to the effect that where a union threatens the livelihood or job security of an employee to obtain a membership card, the card cannot be used to determine the union’s level of support in a certification application and that the threat also calls into question other cards the union has obtained.
[105] In this case, the Vice-Chair did not find that the union had threatened the livelihood or job security of an employee; he found that intimidation or coercion did not rise to the level where the voluntariness of the signatures was in doubt. He cannot be faulted for not having followed Board jurisprudence that would apply in cases where different findings were made.
[106] The employees also argue that the Vice-Chair failed to appreciate in his reasons the distinction the Board has made in the past between propaganda and salesmanship in a union campaign, on the one hand, and buying union memberships, on the other. I agree with the union’s submissions (a) that in the employees’ request for reconsideration, they did not allege that the union had tried to buy memberships, and (b) that the cases the employees say the Vice-Chair should have followed were not mentioned in their reconsideration request. The Vice-Chair cannot be faulted for not having made this distinction when the issue was not raised.
Conclusion with respect to whether the May 6, 2022 reconsideration decision was unreasonable
[107] In my view, the Vice-Chair’s May 6, 2022 decision is both rational and logical.
[108] The Vice-Chair referred to the narrow circumstances in which the Board may reconsider a decision. He reproduced a copy of the membership card the employees had signed, with its title that clearly identified it as an application for union membership. He reviewed Board jurisprudence, including decisions in which the Board has held individuals who sign membership cards to an objective standard, presuming that they are acting reasonably and rationally. He considered the submissions of Strasser & Lang and of the employees. He concluded that the employees’ submission “does not describe a situation where the employees could not understand what they were signing, especially given what the document says on the face of it.” He also concluded: “The submissions do not describe the potential of intimidation or coercion as to raise a question of the voluntariness of their signatures.” He found that even if the employees’ submissions had been timely, in other words, even if they had been sent to the Board before he had certified the union on March 21, 2022, his decision would have been the same.
[109] Specifically referring to the circumstances in which the Board may reconsider a decision, at para. 30 of his decision, the Vice-Chair concluded that he did not make an obvious error in his decision of March 21, 2022 when he certified the union. At para. 31, he concluded that the case does not raise important policy issues which have not been raised many times before. At para. 32, he found that Strasser & Lang and the employees had been provided an opportunity to present evidence and make submissions.
[110] I do not find the decision to be untenable in light of the evidence that was before the Vice-Chair, the parties’ submissions and the potential impact of the decision on the parties it would affect. When the Vice-Chair certified the union on March 21, 2022, he had Strasser & Lang’s response to the application, but no input from the employees. On the reconsideration request, he had submissions from Strasser & Lang and the employees. I am satisfied that he would have understood the potential impact of his decision. I also do not find the decision to be untenable given the relevant legal constraints, including the governing statutory scheme and, in particular, the Board’s specialized expertise in the field of construction industry labour relations.
[111] For these reasons, I find that the Vice-Chair’s May 6, 2022 reconsideration decision was reasonable.
Conclusion
[112] Having found that the Vice-Chair’s March 21, 2022 certification decision and his May 6, 2022 reconsideration decision were both procedurally fair and reasonable, I would dismiss the applications of both Strasser & Lang and the seven employees.
Costs
[113] In accordance with the agreement of the parties, Strasser & Lang and the seven employees shall pay the union $5,000 in costs.
[114] There shall be no costs paid by or payable to the Board.
Williams J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Lederer J.
Released: April 17, 2023
CITATION: Strasser & Lang v. Carpenters’ District Council of Ontario et al., 2023 ONSC 2247
COURT FILE NO.: DC-22-003; DC-22-004
DATE: 2023/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, Williams JJ.
BETWEEN:
1778767 ONTARIO INC. o/a STRASSER & LANG
Applicant (22-003)/Respondent (22-004)
– and –
CARPENTERS’ DISTRICT COUNCIL OF ONTARIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
– and –
MICHAEL PETERSON, BRIAN MORTENSEN, JAMES KING, GRANT ADAIR, GREG ROST, CHRISTOPHER ARNING and SCOTT CLUTCHEY
Intervenors (22-003)/Applicants (22-004)
REASONS FOR JUDGMENT
Williams J.
Released: April 17, 2023
[^1]: 1778769 Ontario Ltd, o/a Strasser & Lang. [^2]: Michael Peterson, Brian Mortensen, James King, Grant Adair, Greg Rost, Christopher Arning and Scott Clutchey. [^3]: Labour Relations Act, S.O. 1995, c. 1, Sched. A. [^4]: Hutchison v. Aviva General Insurance Company, 2023 ONSC 1472 at para.14; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para.30; Mission Institution v. Khela, 2014 SCC 24, at para.79. [^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para.23. [^6]: Section 128.1(3) is discussed in para. 36 of these reasons. [^7]: 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23 – 27. [^8]: Sections 114(1) and 116 of the LRA. [^9]: International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC), at para. 65. [^10]: Amalgamated Transit Union, Local 113, 2007 59152 (ON SCDC), at para. 83, citing Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 341 (ON CA), [1971] 3 O.R. 832, [1971] O.J. No. 1719, 22 D.L.R. (3d) 40 (C.A.), at pp. 841-42 O.R., pp. 49 and 50 D.L.R. [^11]: Amalgamated Transit Union, Local 113, at para. 85, citing McNaught v. Toronto Transit Commission (2005), 2005 1485 (ON CA), 74 O.R. (3d) 278, [2005] O.J. No. 224 (C.A.), at paras. 59 and 60. [^12]: In general terms, s. 70 prohibits an employer from interfering with the formation, selection or administration of a union, s. 72 prohibits an employer from interfering with employees’ rights in relation to involvement in unions and s. 76 prohibits intimidation or coercion to compel anyone to become or refrain from becoming a member of a union or an employers’ organization or to refrain from exercising rights or performing obligations under the LRA. [^13]: International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC), at paras. 60 - 61. [^14]: In fact, the employer had acknowledged that the workers’ requests to revoke their union membership would typically be dismissed as “changes of heart” but said that in this case they should be considered as objections by the workers to the union’s conduct. [^15]: Audio Visual Services (Canada) Corporation, 2017 85671 (ON LRB), at para. 29. [^16]: Audio Visual Services (Canada) Corporation, at para. 30.