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Labour (Ont) - Judicial Review. International Union of Operating Engineers, Local 793 v. Labourers’ International Union of North America, Ontario Provincial District Council
In International Union of Operating Engineers, Local 793 v. Labourers’ International Union of North America, Ontario Provincial District Council (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR.
Here the court considers the 'extra' deference (compared to the already deferential JR 'reasonableness' SOR) accorded to labour JRs by virtue of the OLRB's expertise:[32] The courts have consistently afforded labour relations boards “the highest levels of judicial deference on matters within their exclusive jurisdiction”: Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at para. 42. The Board has exclusive jurisdiction under s. 114(1) to exercise the powers conferred upon it by the LRA, including with respect to a certification application and related steps.
[33] After noting the Board’s exclusive jurisdiction under s. 114(1) and the “strong privative clause” in s. 116, the Court of Appeal for Ontario has characterized the Board as “a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute”: Turkiewicz, at para. 77; Enercare, at para. 64. Board decisions with respect to the construction industry have been described as “an even more specialized subset of [the Board’s] expertise”, which are entitled to “significant deference”: 1778767 Ontario Inc. (c.o.b. Strasser & Lang) v. Carpenters' District Council of Ontario, 2023 ONSC 2247, 2024 CLLC para. 220-003 (Div. Ct.), at paras. 43, 55; see also International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508 (Div. Ct.), at paras. 18-19, 47. . Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board [prematurity]
In Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board (Div Court, 2024) the Ontario Divisional Court dismissed a labour JR, this from an unfair labour practice complaint decision whereby the Board initially "exercised its discretion under s. 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the “Act”) to dismiss the Complaint without convening a hearing on the merits".
The court considered whether an OLRB JR is premature in the absence of reconsideration request:[63] Section 114(1) of the Act [SS: 'Jurisdiction'] confers on the Board the discretionary power to reconsider its decisions “at any time, if it considers it advisable to do so”. To encourage finality, the Board’s threshold for reconsideration is a high one: Anonymous Applicant v. CAW-Canada, Local 40, 2012 CanLII 30623 (Ont. L.R.B.).
[64] While this Court clearly has the discretion to dismiss an application for judicial review because the applicant has not sought reconsideration, the Supreme Court of Canada has held that reconsideration is not an absolute prerequisite to judicial review Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 57.
[65] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, [2019] O.L.R.B. Rep. 691, the Divisional Court refused to dismiss an application for judicial review as premature because the applicant had not sought reconsideration. In doing so the Court noted that reconsideration is a discretionary rather than a mandatory part of the Board’s processes and that historically the Board has only granted reconsideration requests in very limited circumstances. The Divisional Court found at para. 41:There may be cases in which it is appropriate to require reconsideration before an application for judicial review is brought; for example, where there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue. Similarly, reconsideration may be an adequate alternative remedy where the Board made an error in a step in the administrative decision-making process. However, given the limited scope for review, there is no basis for finding that parties before the Board should generally request a review by the Board before seeking judicial review. [citations omitted.] [66] As put by the ETBA in its reply factum, its “application alleges that the Board failed to give proper effect to the province-wide bargaining regime under the Act. This is not a ‘policy issue’ as defined in the case law.” I agree. Further, there are no conflicting decisions involving an issue that the Board ought to have a chance to reconcile. Finally, ETBA is not alleging that the Board made a procedural error in its process.
[67] In The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153 at para. 22, the Divisional Court found that the Board is likely to reject a request for reconsideration that it regards “as an attempt to reargue the case.” In its reply factum, the ETBA acknowledges that it “is essentially making the same representations to this Court that it made before the Board but is contending that the Board’s conclusions about those representations were unreasonable.”
[68] I find that in this case reconsideration would not be an adequate alternative remedy and, therefore, the application should not be dismissed as premature.
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