CITATION: Mulmer Services Ltd. v. LIUNA, Local 183, 2023 ONSC 4716

DIVISIONAL COURT FILE NO.: DC-22-504-JR

DATE: 20230816

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Backhouse and Howard JJ.

BETWEEN:

MULMER SERVICES LTD.

Applicant

– and –

labourers’ international union of north america, local 183 and ONTARIO LABOUR RELATIONS BOARD

Respondents

F. Cesario and C. Nevison, for the Applicant

A. Black and M. Silva, for the Respondent Labourers’ International Union of North America, Local 183

A. Bowker, for the Respondent Ontario Labour Relations Board

HEARD: June 8, 2023, by videoconference in Toronto

REASONS FOR DECISION

howard j.

Overview

[1] The applicant, Mulmer Services Ltd. (“Mulmer”), is a shuttle bus company that specializes in providing customized shuttle bus routes for the healthcare industry and other business sectors.

[2] The respondent Labourers’ International Union of North America, Local 183 (“LIUNA” or the “Union”) is a trade union and was at all material times the exclusive bargaining agent for the shuttle bus drivers (and parking employees) employed by SP Plus Corporation Canada (“SP+”) at the University Health Network (“UHN”) in Toronto. The terms of employment of the UHN shuttle bus drivers were governed by a provincial collective agreement between SP+ and LIUNA effective from January 1, 2020, to December 31, 2022 (the “Collective Agreement”).

[3] Mulmer brings this application for judicial review of a decision of Vice-Chair Kelly Waddingham of the Ontario Labour Relations Board (“OLRB” or the “Board”) dated August 5, 2022 (the “Decision”).[^1] In its Decision, the Board declared that there was a sale of business from SP+ to Mulmer on March 1, 2021, and that, as a result of that sale and the operation of s. 69.1(3) of the Labour Relations Act, 1995,[^2] Mulmer was bound to the Collective Agreement between SP+ and the Union, covering the UHN shuttle bus drivers.

[4] In short, the Board determined that Mulmer was a “successor employer” for the purposes of ss. 69 and 69.1 of the LRA. Subsection 69(2) of the Act provides that:

Successor employer

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.

[5] Mulmer submits that, inter alia, the Decision of the OLRB unduly and unreasonably expanded the definitions of “building service provider” and “servicing the premises” of a building. Mulmer submits that the Decision is unreasonable and should be quashed.

[6] For the reasons that follow, the application is dismissed.

Factual Background and Decision of the OLRB

[7] UHN is a research hospital fully affiliated with the University of Toronto and operates a hospital network encompassing Toronto General Hospital (200 Elizabeth Street), Toronto Western Hospital (399 Bathurst Street), Princess Margaret Cancer Centre (610 University Avenue), Hillcrest Reactivation Centre (47 Austin Terrace), Lakeside Long-Term Care Centre (150 Dunn Avenue), Toronto Rehab (four locations), and The Michener Institute of Education (222 St. Patrick Street).

[8] UHN runs shuttle buses between its various locations for patients, staff, and visitors of its facilities. The shuttle buses also make trips between UHN locations and Sunnybrook Health Sciences Centre, a teaching hospital affiliated with the University of Toronto.

[9] At all material times prior to March 1, 2021, SP+ held the contracts for shuttle bus service between, and parking at, Toronto Western Hospital and Toronto General Hospital, pursuant to which SP+ employed no less than four shuttle drivers under the terms and conditions of the Collective Agreement.

[10] Shuttle bus drivers are authorized to enter UHN facilities to make deliveries, to access food services, and to use washrooms. However, they must show their UHN identification in order to enter the facilities. The shuttle bus drivers testified before the Board that they typically did not go into the facilities to pick up or drop off packages and other items, although, on occasion, they may deliver an item to a security person at the entrance to the receiving facility or the reception desk at the facility.

[11] On March 1, 2021, SP+ lost the contract for UHN shuttle bus services to Mulmer. In anticipation of the transition of shuttle bus services from SP+ to Mulmer, SP+ provided Mulmer with the identities and employment details of the four affected employees. Mulmer continued the employment of one of the employees but not the others.

[12] By grievance dated March 1, 2021, LIUNA asserted that a sale of business had occurred within the meaning of s. 69 of the Act, and that Mulmer was, as successor employer to SP+, in violation of the Collective Agreement by, among other things, refusing to continue the employment of bargaining unit employees. Mulmer denied that it was a successor employer to SP+ or otherwise bound by the Collective Agreement.

[13] On March 12, 2021, the Union referred the grievance to arbitration pursuant to s. 49 of the Act. Pursuant to s. 115 of the Act, the Ministry of Labour (Dispute Resolution Services) then referred to the Board the question of its authority to appoint an arbitrator in the circumstances.

[14] On April 13, 2021, UHN issued a termination notice, indicating that it was terminating the contract with Mulmer; the parties agreed the contract would end as of May 31, 2021. The UHN Director of Leasing testified before the Board that “the services agreement was terminated because UHN senior management determined that Mulmer ‘was not a good fit’ for UHN.”[^3]

[15] Further to the Minister’s referral under section 115 of the Act, the Board heard the matter and ultimately issued the Decision in question.

[16] As reflected in the Decision, the Board framed its analysis by stating that the primary issue in the case was “whether or not the shuttle bus service operated by SP+ (and, subsequently, by Mulmer)” is a service to which s. 69.1 of the LRA applies.[^4] The Board noted that, assuming s. 69.1 does apply to the shuttle bus service,[^5] the Board must then determine if the requirements of s. 69.1(3) were met and, by extension, whether the sale of the business from SP+ to Mulmer that occurred on March 1, 2021, is deemed to be a “sale of a business” for the purposes of s. 69. The Board set out the relevant provisions of the LRA, including the provisions of s. 69(1) and s. 69.1(3) of the Act, as follows:

Successor rights, building services

69.1 (1) This section applies with respect to services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services.

Services under contract

(3) For the purposes of section 69, the sale of a business is deemed to have occurred,

(a) if employees perform services at premises that are their principal place of work;

(b) if their employer ceases, in whole or in part, to provide the services at those premises; and

(c) if substantially similar services are subsequently provided at the premises under the direction of another employer.

[17] The Board then began its analysis with a review of the well-established principles of statutory interpretation endorsed by the Supreme Court of Canada.[^6] It went on to note, inter alia, the language of s. 64(1) of the Legislation Act, 2006[^7] and the OLRB’s previous jurisprudence confirming that the successor employer provisions of the LRA are to be regarded as remedial and “should, of course, be given a large and liberal interpretation,”[^8] that is, “such fair, large and liberal interpretation as best ensures the attainment of its objects.”[^9]

[18] The Board held that in order to fall within s. 69.1(1) of the Act, the services in question must meet two requirements: they must be provided directly or indirectly by or to a building owner or manager, and they must be related to servicing the premises.[^10]

[19] The Board expressed no difficulty in finding that the first requirement of s. 69.1(1) was met in this case. The Board rejected Mulmer’s proposition that the shuttle bus service is not provided “to a building owner or manager” but is instead provided to UHN staff and patients, as follows:

Patients and staff of UHN are undoubtedly the “beneficiaries” of the service. However, the service only exists because UHN contracts for it. It may be regarded in either of two ways. It is either provided to UHN (indirectly, through its “agent”, Plexxus) or it is provided by UHN (indirectly, by SP+ or another provider) for the use and convenience of its patients and staff. Whichever way it is regarded, the shuttle bus service is a service “provided by or to a building owner or manager”.^11

[20] The Board went on to address what it expressed to be “the more difficult (and consequential) question at issue here,” being whether the shuttle bus serves is “related to servicing the premises” so as to satisfy the second requirement of s. 69.1(1).[^12]

[21] In the course of its analysis, the Board considered the proper interpretation of the operative word “premises,” reviewed the interpretation given to the term in its prevision decision in Medieval Times, and addressed (but ultimately rejected) Mulmer’s argument that the definitions of “building services” and “building services provider” under the Employment Standards Act, 2000[^13] and the regulations made thereunder[^14] should dictate the Board’s interpretation of the successor employer provisions of s. 69.1 of the LRA.

[22] Ultimately, the Board concluded that the shuttle bus service in question was related to servicing UHN premises, reasoning, inter alia, that:

In light of the above, the Board finds that the shuttle bus service is related to servicing UHN premises. The shuttle service exists because UHN determined that it needed to provide such a service to its patients and staff. The principal route of the service is the route between Toronto General Hospital and Toronto Western Hospital (It was, in fact, the only route operating at the time of the change in the provider of the shuttle service). Both hospitals are UHN facilities. In view of the interpretation of “premises” adopted in Medieval Times Dinner and Tournament, the hospitals can certainly be regarded as “the premises” of UHN for the purposes of section 69.1. Furthermore, the shuttle bus service was clearly conceived to “service” those premises. That is its primary function. The fact that the shuttle buses travel between premises on public roads, and load and unload passengers (at one end of the route) on a public street bordering the premises does not preclude a finding that the shuttle buses “service” UHN premises.[^15]

[23] In the result, the Board found that all three requirements of s. 69.1(3) were met, and that a sale of business from SP+ to Mulmer had occurred on March 1, 2021, for the purposes of the successor employer provisions of the LRA. Accordingly, the Board made a declaration that Mulmer was bound by the Collective Agreement with respect to those shuttle bus drivers who were employed by SP+ at UHN on February 28, 2021.[^16]

Issues

[24] Arising out of the arguments of the applicant, the issues to be determined by this court are:

a. Whether the Decision of the Board is unreasonable because it unduly expands the meaning of “building service provider”?

b. Whether the Decision of the Board is unreasonable because it is not consistent with the evidence concerning the “principal place of work” of the UHN shuttle bus drivers?

c. Whether the Decision of the Board is unreasonable because it is not consistent with the principle of harmonization?

Standard of Review

[25] The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov instructs that in determining the applicable standard of review, one begins with the presumption that the standard of reasonableness applies.[^17] That presumption can be rebutted in two types of situations: where the legislature has indicated a different standard is to apply[^18] or where correctness review is required by the rule of law.[^19] Neither exception applies in this case.

[26] The parties agree that the applicable standard of review is reasonableness.

[27] The Supreme Court’s decision in Vavilov holds that reasonableness “remains a robust form of review” – but operates within a context of overall judicial restraint.[^20] Reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.”^21 This “foundational”[^22] principle requires that “courts intervene in administrative matters only where it is truly necessary to do so.”[^23]

[28] Under Vavilov, the reasonableness standard assesses whether there is justification, transparency, and intelligibility within the decision-making process in relation to the factual and legal constraints that bear on the decision and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.[^24]

[29] A reviewing court cannot interfere with a decision simply because it would have decided the matter differently or because an alternative interpretation was open to the tribunal. The role of the reviewing court is to refrain from deciding the issue itself and, instead, to review, that is, to “consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable.”[^25]

[30] As such, reasonableness review is not “a line-by-line treasure hunt for error,”[^26] and “minor missteps” are not a proper basis to find that an administrative tribunal’s decision is unreasonable.[^27] The tribunal’s reasons “must not be assessed against a standard of perfection” and need “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred.”[^28] Rather, a tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.”[^29]

[31] Moreover, in the context of labour relations, the courts have a longstanding jurisprudential commitment to affording labour relations tribunals the highest degree of deference.[^30] Indeed, as the Ontario Court of Appeal said in a 2020 decision, “[f]ew tribunals have received more judicial deference than labour tribunals and nothing in Vavilov detracts from this posture.”[^31] Our Court of Appeal recently emphasized, in the context of a decision of the OLRB, that the “relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review.”[^32] The Court of Appeal went on to hold that the Board “is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[^33]

[32] Having regard for the governing statutory scheme here, it is to be noted that the LRA conveys exclusive jurisdiction on the Board to determine disputes under the Act. The Act contains two strong privative clauses. Subsection 114(1) mandates the Board’s jurisdiction and provides, inter alia, that the Board’s decisions are “final and conclusive for all purposes,” as follows:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[33] In a similar vein, s. 116 of the Act reflects the legislative intent that judicial review of the Board’s decisions must afford great deference to the Board, as follows:

No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

[34] Consistent with the courts’ jurisprudence on the reasonableness standard of review, these statutory provisions underscore the importance of judicial restraint and respect for the Board’s interpretation of the LRA, its home statute.

Analysis

[35] In considering the arguments of the applicant, it is important to bear in mind that the burden is on the party challenging an administrative tribunal’s decision to show that it is unreasonable.[^34]

Whether the Decision of the Board is unreasonable because it unduly expands the meaning of “building service provider”?

[36] Mulmer submits that the Board’s Decision unduly and unreasonably expanded the meaning of “building service provider.” In its view, “the OLRB held that Mulmer is a building service provider.”[^35] It submits that “the OLRB’s conclusion that Mulmer is a building service provider was unreasonable.”[^36] The crux of Mulmer’s submission, as distilled in its factum, is that:

The OLRB’s Decision finding that Mulmer is a building service provider and therefore subject to the collective agreement between the Union and SP Plus Corporation Canada should be quashed as it unduly expands the definition of a “building service provider”, the meaning of “premises,” and the meaning of “servicing the premises.”[^37]

[37] I note that the applicant’s factum is replete with references to the terms “building service provider” and/or “building services provider.” Indeed, collectively, there are 17 such references to those terms throughout Mulmer’s 19-page factum.[^38]

[38] The reality, however, is that the Board never once held that Mulmer is a building services provider (or building service provider). Nowhere in the Decision was that finding ever made.

[39] Moreover, the term “building services provider” is not defined or used in either ss. 69 or 69.1 of the LRA, nor does it even appear anywhere else in the Act.

[40] The only reference at all in the Decision to the term “building services provider” was when the Board was explaining how that term, while found in the Employment Standards Act, 2000, is nowhere found in the LRA, as follows:

The Board also notes that the term “building services” is defined in the ESA for the purpose of defining another term – “building services provider”. It does not otherwise appear in the ESA. The LRA uses neither the term “building services”, nor the term “building services provider” in the operational text of section 69.1.[^39]

[41] As such, I agree with the Union’s position[^40] that, contrary to Mulmer’s submissions, the Board did not consider “whether Mulmer is a building service provider,”[^41] did not hold “that Mulmer is a building service provider,”^42 and did not expand “the meaning of ‘building service provider.’”[^43] Indeed, the Decision provides no definition of the term “building service provider” at all. There is a distinct “straw-man” aspect to Mulmer’s argument on this ground.

[42] To my mind, that is sufficient to dispose of Mulmer’s claim that the Decision of the Board is unreasonable and must be set aside because it unduly expanded the meaning of “building service provider” – which, I would repeat, the Board never found.

[43] However, for the sake of completeness, I would go on to consider some of the subsidiary elements of the applicant’s argument.

[44] Mulmer submits that the Decision unduly and unreasonably expanded the definition of “premises” for the purposes of s. 69.1(1) of the Act. Again, that subsection provides that the section applies to services “that are related to servicing the premises, including building cleaning services, food services and security services.” [Emphasis added.]

[45] Mulmer argues that the Decision was unreasonable because the shuttle bus service that Mulmer provides “is not directly related to the functioning of a building.” It argues that the provision of shuttle bus service is “fundamentally different” from building cleaning, food services, and security services, i.e., the services expressly enumerated in the subsection, all of which “take place within the building itself and relate to the functioning of the building.” In contrast to the enumerated services, shuttle bus services, Mulmer argues, “play no role in the operation of the building itself.”[^44] Mulmer asserts that the application of s. 69.1(1) is limited to “those who complete work that services a building and/or its premises.”[^45]

[46] I note that essentially the same arguments were made by Mulmer before the Board[^46] and were rejected by the Board in its Decision.

[47] It is clear that the Board rejected the restrictive approach championed by Mulmer, with its emphasis on the term “building” and its insistence (not found in the text of the legislation itself) that s. 69.1(1) applies only to those services that “take place within the building itself and relate to the functioning of the building.” Rather, it is apparent that the Board took a broader view and returned to the actual text of s. 69.1(1), which speaks of services “that are related to servicing the premises.” Hence, the Board said in its Decision: “[i]n light of the above, the Board finds that the shuttle bus service is related to servicing UHN premises.” [Emphasis added.]

[48] In coming to that conclusion, the Board considered that the “starting point”[^47] for its consideration of the proper interpretation of the term “premises” was the OLRB’s previous decision in Medieval Times. Early in its analysis, the Board closely examined the Medieval Times decision, noting its broad and inclusive approach to the interpretation of the Act, as follows:

In Medieval Times Dinner & Tournament, the Board made the following observations regarding the wording of section 64.2 (which was introduced into the LRA in June 1992, but repealed in November 1995). The Board (here) notes that the wording of section 69.1 is identical to the wording of section 64.2.

55. [...] It is noteworthy to observe the broad language utilized by the Legislature throughout section 64.2(1) of the Act. The inclusive language adopted by the Legislature when referring to the enumerated services specifically identified by that subsection makes it clear that the enumerated services are not exhaustive of the entire range of services which may be captured by the section. The use of the broad phrase “related to servicing the premises” reflects the intention of the Legislature to encompass various other types of services which may be provided by or to building owners or managers. It is also noteworthy that the phrase “provided, directly or indirectly, by or to a building owner or manager” is also wide-sweeping in scope. It is manifest from the language of section 64.2 that the Legislature intended this provision of the Act to have broad applicability, and to encompass a wide range of commercial circumstances.[^48] [Emphasis added.]

[49] The Board’s earlier decision in Medieval Times clearly informed the Board’s analysis and conclusion that the shuttle bus service provided by Mulmer is related to servicing UHN premises:

The shuttle service exists because UHN determined that it needed to provide such a service to its patients and staff. … Both [Toronto General and Toronto Western] hospitals are UHN facilities. In view of the interpretation of “premises” adopted in Medieval Times Dinner and Tournament, the hospitals can certainly be regarded as “the premises” of UHN for the purposes of section 69.1. Furthermore, the shuttle bus service was clearly conceived to “service” those premises. That is its primary function. The fact that the shuttle buses travel between premises on public roads, and load and unload passengers (at one end of the route) on a public street bordering the premises does not preclude a finding that the shuttle buses “service” UHN premises.[^49]

[50] In embracing a broad and purposive interpretation of s. 69.1(1), consistent with its earlier jurisprudence,[^50] the Board also rejected Mulmer’s submission that placed significant emphasis on the heading (“Successor rights, building services”) preceding the subsection. Quite fairly, the Board relied on s. 70 of the Legislation Act, 2006, noting that headings and marginal notes are inserted in legislation “for convenience of reference only and do not form part of it.”[^51]

[51] In the course of its submissions to the Board, Mulmer relied upon the Changing Workplaces Review: An Agenda for Workplace Rights, Final Report, issued by the Ontario Ministry of Labour, Training, and Skills Development in May 2017, in support of its argument that while the legislature could have chosen to include other services beyond those expressly enumerated in s. 69.1, it limited the services to those expressly identified in the Changing Workplaces Review. Mulmer pointed out that the authors of the Report identified other sectors in which there are “unskilled and vulnerable workers performing precarious work” – such as bus drivers working for school boards – but went only as far as recommending that those sectors be subject to “further examination” before being afforded protection under the Act. Mulmer argued that if school bus drivers were not included (or, more precisely, were not recommended to be included), then the UHN shuttle bus drivers should not be.

[52] The Board acknowledged the point and squarely addressed it in its Decision, as follows:

The Board is mindful that the authors of the Changing Workplaces Review Report did not identify as “building services” any services beyond building cleaning, food service and security, and declined to recommend that school bus drivers be accorded the same protections as employees working in such services. The Board acknowledges that there are similarities between a shuttle bus service (of the kind at issue here) and a school bus service. Both carry passengers to and from specific locations for (generally) specific purposes. However, it might be pointed out that a shuttle bus (typically) travels back and forth between two (or more) designated sites multiple times over the course of its daily operating period. While it may make other stops en route, its primary function is to transport passengers from one designated site to another designated site. In any event, shuttle bus drivers in circumstances like those of the SP+ drivers (that is, whose employment is subject to the regular re-tendering of services contracts) certainly qualify as “vulnerable workers performing precarious work”. It is the Board’s view that a “large and liberal interpretation” of the phrase “services related to servicing a premises” could include a shuttle bus service. It is also the Board’s view that such an interpretation would not be “unreasonable”, “illogical or incoherent”, or “incompatible” with other provisions of the Act or with the object of the Act.

[53] While Mulmer may disagree with the Board’s rejection of its arguments, the Board clearly engaged in a transparent and intelligible analysis that addressed those points. That the Board settled on an interpretation different from the one favoured by Mulmer does not make the Board’s interpretation unreasonable.

[54] In sum, the Board considered the scope and meaning of the phrase “services … that are related to servicing the premises” and, employing its labour relations expertise in interpreting its home statute, arrived at an interpretation of s. 69.1 that is consistent with the scheme of the LRA and the Board’s previous jurisprudence. The Board explained the rationale for its interpretation in its Decision in a manner that is transparent, intelligible, and justified. It is not the only interpretation of the provision, but it is a possible, acceptable outcome that is defensible in respect of the facts and the law.

Whether the Decision of the Board is unreasonable because it is not consistent with the evidence concerning the “principal place of work” of the UHN shuttle bus drivers?

[55] A key component of the analysis as to whether a sale of business has occurred for the purposes of 69.1 of the Act is whether, under clause 69.1(3)(a), the employees perform services “at premises that are their principal place of work.”

[56] In its Decision, the Board concluded that UHN was the principal place of work for the UHN shuttle bus drivers, finding as follows:

There remains, however, the question of whether the UHN premises can be considered the drivers’ “principal place of work”. Mulmer argued that as the drivers have only “brief and peripheral contact” with the facilities on their shuttle route, the shuttle bus — rather than UHN premises — is their principal place of work. LIUNA argued that as the shuttle bus drivers pick up and drop of passengers at UHN sites, UHN premises are of “primary importance” to their work and, accordingly, must be considered their principal place of work. The Board agrees with LIUNA’s position. One need only consider the question from the perspective of the drivers themselves to reach such a conclusion. While the drivers would identify themselves as someone whose job it is to drive between two sites, they would nonetheless identify UHN as the place where they work. They would not say that they work on the shuttle bus or that they work between two hospitals. They would tell others that they work at UHN. Consequently, it is reasonable to regard UHN as their “principal place of work”. In the final analysis, the Board sees no reason to distinguish shuttle bus drivers from employees (such as cleaners, cooks or security guards) who perform services entirely on the premises. The service they perform is similarly connected to the premises. In the result, the Board finds that UHN shuttle bus drivers perform services at premises that are their principal place of work.[^52] [Emphasis in original.]

[57] Mulmer argues that it was “unreasonable for the Board to reach this conclusion without hearing directly from the shuttle bus drivers who performed this work where they worked.”[^53] That is, Mulmer challenges the fact-finding function performed by the Board.

[58] Respectfully, there is no merit in the argument of the applicant. The Board’s finding that UHN was the principal place of work for the UHN shuttle bus drivers was based on, inter alia, signed, written declarations by the drivers, which were filed with the Board and made exhibits in the proceeding before the Board. It was the direct evidence of at least three of the shuttle bus drivers called by the Union that they worked “as a shuttle driver at UHN”; that was the evidence of Earl Douglas,[^54] Florence Abraham,[^55] and Mohammed Nasser.[^56] The evidence of at least two of the drivers (being Kaled Abdulkader,[^57] and Mohammed Nasser[^58]) was that they “applied to Mulmer for continued employment as a shuttle driver at UHN.” The evidence of Mr. Douglas was that, after his “last day of working for Mulmer at UHN,”[^59] he remained unemployed; he said, “I didn’t work anywhere after UHN.”[^60] There was also evidence before the Board that the drivers carried UHN identification.[^61]

[59] As such, there was ample evidence before the Board upon which it could base its finding that UHN was the drivers’ principal place of work.

[60] Mulmer’s argument on this ground essentially invites this court to examine the evidence that was tendered before the Board and replace the factual findings that were made by the Board with our own view of the evidence. In other words, Mulmer invites this court to do exactly what Vavilov and its progeny say this court must not do.

[61] Mulmer has failed in its burden to demonstrate that the factual findings made by the Board were unreasonable. This ground must also fail.

Whether the Decision of the Board is unreasonable because it is not consistent with the principle of harmonization?

[62] Mulmer submits that the Decision violates what it terms “the principle of harmonization,” meaning that statutes dealing with the same subject-matter – here, the LRA and the ESA – should be interpreted in a manner that is consistent, harmonious, and minimizes conflict between the statutes.

[63] In specific terms, Mulmer argues that because the definition of “building services” in the ESA is limited to food, security and cleaning services (and excludes shuttle bus drivers), any expansion of the list of building services beyond the enumerated services set out in s. 69.1(1) of the LRA should be informed by the definition set out in the ESA. Mulmer argues that it would offend the principle of harmonization to adopt a broader definition for the purposes of the LRA than exists under the ESA. Indeed, Mulmer argues that the “definition of a term [under the ESA] must determine the scope of a provision [under the LRA].”[^62]

[64] Again, these same arguments were made by Mulmer before the Board[^63] and were ultimately rejected.

[65] Further, I note the observation made by the Board that, in argument before the Board, Mulmer acknowledged that in its Imperial Parking decision of 2020, the OLRB rejected the employer’s submission (which was also said to be based on the “principle of harmonization”) that the definition of “building services” under the ESA could assist it in defining the word “building” for the purposes of s. 69.1(1) of the LRA.[^64] In rejecting what is essentially the same argument made by Mulmer here, the Board in Imperial Parking said:

I also agree, for the reasons argued by the applicant, that the definition of “building service” and “building service provider” in the ESA is not particularly helpful in terms of defining what constitutes a building under the [LRA].

Nor is the Building Services Provider regulation of particular assistance to the facts before the Board.[^65]

[66] In the instant case, the Board responded to Mulmer’s harmonization argument in the following terms:

Mulmer has pointed out that the Employment Standards Act, 2000 and O. Reg. 287/01 between them set out a definition of “building services” that would exclude shuttle bus services. It urges the Board to interpret subsection 69.1(1) in a manner that accords with that definition. The Board acknowledges that finding that a shuttle bus service falls within subsection 69.1(1) of the LRA will have the effect of expanding the scope of the LRA’s “building services” provision beyond the ESA’s definition of that term. However, as the Board sees it, the principle of “harmonization” does not compel it to use the definition of a term set out in the ESA (and the Regulation) to determine the scope of a provision contained in the LRA. The Board also notes that the term “building services” is defined in the ESA for the purpose of defining another term – “building services provider”. It does not otherwise appear in the ESA. The LRA uses neither the term “building services”, nor the term “building services provider” in the operational text of section 69.1. Accordingly, while the LRA and the ESA are both “employment-related statutes”, there is no basis for confining “services related to servicing a premises” to “building services” as defined in the ESA. To do so would circumscribe the Board’s jurisdiction to interpret its home statute, in particular a provision that – on its very wording – is intended to capture services other than those expressly enumerated therein.[^66]

[67] Mulmer has offered no direct authority for its proposition that the definitions under the ESA regime “must determine” the scope of the LRA. Indeed, that very same argument was rejected in Imperial Parking.

[68] The provisions that Mulmer says should control the interpretation of s. 69.1 of the LRA are all contained in the ESA and the Building Services Provider Regulation made thereunder. They concern the assignment of termination and severance obligations under the ESA – not successorship of bargaining rights under the LRA.

[69] On this point, I agree with the argument of LIUNA, which I adopt as my own:

That unionized employers are subject to the [LRA] and non-unionized employers are not is trite. That there are “different obligations for an organization under each piece of legislation”, “based only” on whether an employer is unionized, is the universal case in all matters of labour and employment quite irrespective of the Decision. That an incoming employer who ousts a unionized employer might find itself subject to the successorship provisions of the Act (and a collective agreement as a result), even if it would otherwise not be required to pay severance under the ESA, is not “inconsistency” on any interpretation that is reasonable or otherwise intended by the legislature. Preservation of bargaining rights and continuity of employment is the point of section 69.1. It is not in any way contingent on – let alone determined by – whether an incoming employer would have to pay severance if the outgoing employer were not unionized.

There are a myriad of fundamental and substantive differences between the Act and the ESA. The Board’s recognition of that difference is reflected in the Decision here and is consistent with the Board’s findings in the first case to consider the application of the reinstituted section 69.1, in [Imperial Parking].[^67]

[70] The Board’s Decision implicitly recognizes that the two statutory schemes serve different objectives. The Decision is consistent with previous OLRB jurisprudence. In my view, the Decision cannot be said to be unreasonable on this point. Therefore, this ground must also fail.

Conclusion

[71] For all of these reasons, the application must be dismissed.

[72] There is no reason here to depart from the presumptive rule that costs should follow the event. The parties agreed that $5,000 in costs should be payable to the successful party. Accordingly, the applicant shall pay the respondent LIUNA its costs of the application fixed in the all-inclusive amount of $5,000 within 30 days.

[73] For greater certainty, there are no costs payable by or in favour of the respondent OLRB.

Howard J.

I agree _______________________________

McWatt A.C.J.S.C.

I agree _______________________________

Backhouse J.

Released: August 16, 2023

CITATION: Mulmer Services Ltd. v. LIUNA, Local 183, 2023 ONSC 4716

DIVISIONAL COURT FILE NO.: DC-22-504-JR

DATE: 20230816

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Backhouse and Howard JJ.

BETWEEN:

MULMER SERVICES LTD.

Applicant

– and –

labourers’ international union of north america, local 183 and ONTARIO LABOUR RELATIONS BOARD

Respondents

REASONS FOR DECISION

HOWARD J.

Released: August 16, 2023

[^1]: LIUNA, Local 183 v. Mulmer Services Ltd., 2022 81905, [2022] O.L.R.D. No. 289 (OLRB) [Decision].

[^2]: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA” or the “Act”).

[^3]: Decision, at para. 39.

[^4]: Ibid., at para. 71.

[^5]: The Board noted that Mulmer did not argue that any of the exclusions set out in s. 69.1(2) applied to the instant case so as to oust the application of s. 69.1: Ibid., at para. 71.

[^6]: Ibid., at, generally, paras. 72-83.

[^7]: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1): “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

[^8]: Decision, at para. 74, quoting Labourers’ International Union of North America, Local 506, Applicant v. The Board of Governors of Exhibition Place and Medieval Times Dinner & Tournament (Toronto) Inc., 1994 9840, [1994] O.L.R.B. Rep. 865, 24 C.L.R.B.R. (2d) 133, (OLRB) [Medieval Times], at para. 52.

[^9]: Decision, at para. 83.

[^10]: Ibid., at para. 84.

[^12]: Ibid., at para. 85.

[^13]: Employment Standards Act, 2000, S.O. 2000, c. 41 [ESA].

[^14]: O. Reg. 287/01: Building Services Providers.

[^15]: Decision, at para. 89.

[^16]: Ibid., at para. 96.

[^17]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], at paras. 16 and 23. See also Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, 476 D.L.R. (4th) 342 [Enercare], at para. 42.

[^18]: Vavilov, at paras. 17 and 34-35.

[^19]: “This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”: Vavilov, at para. 17. See also paras. 32, 53-64, and 69; and Enercare, at para. 42.

[^20]: Vavilov, at para. 13.

[^22]: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421 [Turkiewicz], at para. 92.

[^23]: Vavilov, at para. 13.

[^24]: Vavilov, at para. 86, quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-49; and paras. 99-100.

[^25]: Vavilov, at para. 83. See also para. 75 and 145, and Turkiewicz, at para. 56.

[^26]: Vavilov, at para. 102, quoting Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54, citing N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses], at para. 14.

[^27]: Vavilov, at para. 100.

[^28]: Ibid., at para. 91, citing Newfoundland Nurses, at para. 16.

[^29]: Vavilov, at para. 102, quoting Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[^30]: Maystar General Contractors Inc. v. I.U.P.A.T., Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at para. 42.

[^31]: Ball v. McAulay, 2020 ONCA 481, 452 D.L.R. (4th) 213, at para. 43.

[^32]: Turkiewicz, at para. 61.

[^33]: Ibid., at para. 77. See also Enercare, at para. 64.

[^34]: Vavilov, at para. 100.

[^35]: Factum of the Applicant, dated November 22, 2022 [“Applicant Factum”], at para. 3.

[^36]: Applicant Factum, at para. 37.

[^37]: Ibid., at para. 23.

[^38]: The term “building service provider” is found 14 times in the Applicant Factum, in paras. 1, 2 (twice), 3, 4, 9, 10, 11, 23 (twice), the subheading preceding para. 25, and paras. 37, and 51 (twice). The term “building services provider” is found 3 times in the Applicant Factum, in paras. 46 and 47 (twice). The terms “building service” or “building services” are found, collectively, 29 times throughout the factum.

[^39]: Decision, at para. 88.

[^40]: Factum of the respondent LIUMA, dated January 31, 2023 [“Union Factum”], at para. 4.

[^41]: Applicant Factum, at para. 3.

[^43]: Ibid., at para. 4.

[^44]: See Applicant Factum, at paras. 30-31.

[^45]: Ibid., at para. 27.

[^46]: See, for example, Decision, at paras. 41, 44, 47, and 50.

[^47]: Ibid., at para. 85.

[^48]: Ibid., at para. 80.

[^49]: Ibid., at para. 89.

[^50]: Apart from Medieval Times, in the course of its analysis, the Board expressly noted LIUNA’s reliance on the OLRB’s 2020 decision in LIUNA, Local 183 v. Imperial Parking Canada Corp., 2020 48241, 72 C.L.R.B.R. (3d) 33 (OLRB) [Imperial Parking], where the Board rejected the employer’s argument that because certain employees – in that case, parking lot attendants – are not expressly enumerated in s. 69.1(1), they should be excluded from the provision. See Decision, at paras. 60-63.

[^51]: Ibid., at para. 79. See also paras. 63 and 69.

[^52]: Decision, at para. 93.

[^53]: Applicant Factum, at para. 40.

[^54]: Record of Proceeding of the Respondent Ontario Labour Relations Board [OLRB Record of Proceeding], Part 2, p. 838, Declaration of Earl Douglas, dated January 14, 2022 (being Exhibit No. 5 before the Board), at para. 2 [CaseLines B847].

[^55]: OLRB Record of Proceeding, Part 2, p. 841, Declaration of Florence Abraham, dated January 14, 2022 (being Exhibit No. 9), at para. 2 [CaseLines B850].

[^56]: OLRB Record of Proceeding, Part 2, p. 845, Declaration of Mohammed Nasser, dated January 14, 2022 (being Exhibit No. 7), at para. 2 [CaseLines B854].

[^57]: OLRB Record of Proceeding, Part 2, p. 844, Declaration of Kaled Abdulkader, dated January 14, 2022 (being Exhibit No. 8), at para. 9 [CaseLines B853].

[^58]: OLRB Record of Proceeding, Part 2, p. 846, Declaration of Mohammed Nasser, dated January 14, 2022, at para. 9 [CaseLines B855].

[^59]: OLRB Record of Proceeding, Part 2, p. 839, Declaration of Earl Douglas, dated January 14, 2022, at para. 12 [CaseLines B848].

[^60]: Ibid., p. 840, at para. 14 [CaseLines B849].

[^61]: Decision, at para. 36.

[^62]: Applicant Factum, at para. 50.

[^63]: Decision, at paras. 47-50.

[^64]: Ibid., at para. 47.

[^65]: Imperial Parking, at paras. 135-136. See also paras. 122-129.

[^66]: Ibid., at para. 88.

[^67]: Union Factum, at para. 58. Citations omitted.