Labour (Ont) - Construction Sector. Labourers’ International Union of North America v Capital Sewer Services Inc.
In Labourers’ International Union of North America v Capital Sewer Services Inc. (Div Court, 2023) the Divisional Court considers (and dismisses) an OLRB JR regarding the apparently chronic difficulty in distinguishing 'maintenance' from 'construction' workers:
 In its Decision, the OLRB found that the work on the London project, in particular the CIPP re-lining of the big pipe, was maintenance work. There is no issue that if the work is maintenance, as found by the OLRB, it is not construction work.. International Union of Operating Engineers, Local 793 v 1476247 Ontario Ltd.
 The OLRB considered a core OLRB decision – Master Insulators’ Assn. of Ontario Inc. v. H.F.I.A. Local 95, 1980 CanLII 863 (ON LRB) – and many other OLRB authorities put forward by the parties. As put in the Decision, the “oft-quoted” Master Insulators’ decision described the analytical challenges of seeking to distinguish between construction and maintenance work. The OLRB noted that the issue is often entirely context specific and that the Union/Capital Sewer case was not an easy one to decide. The OLRB found that certain factors tipped the balance in this case, briefly summarized as follows:
(i) the main purpose of the London project was the inspection, cleaning and CIPP re-lining of the big pipe and the aspects of the work that might, standing alone, be considered “construction” were incidental to and necessary features of the main purpose; The OLRB concluded that the work was maintenance work despite the contract between Capital Sewer and the City of London that referred to the London project as a “construction project” and even though it was treated as a “construction project” for the purposes of the Occupational Health and Safety Act. The OLRB found that the substance of the relationship outweighed the name/language the parties gave to it in those documents.
(ii) the inspection and cleaning work merely sustained the big pipe system capacity and, on the evidence, did nothing to change or add to it;
(iii) the big pipe had not failed nor was it at the end of its intended design life when the work was done; and,
(iv) the re-lining did not change the functional purpose or capacity of the big pipe.
 In the Reconsideration Decision, the OLRB dismissed the submission that the OLRB had ignored the above contract and other documents. The OLRB also disagreed with the Union’s submission that the OLRB had unduly narrowed the interpretation of “construction industry” in s. 1(1) of the Labour Relation Act, 1995 and its inclusion of the term “altering”. The OLRB found that the Union’s interpretation was an overly narrow parsing of the terms used in the Act and failed to consider the whole of the Act.
 On the reconsideration, the Union also submitted that the Decision was inconsistent with more recent decisions of the OLRB, specifically Infrared Pavement Repair Corporation, 2020 CanLII 57580 (ON LRB) and two cases that followed Infrared: 2615194 Ontario Inc. and Focus Flooring and Construction Inc., 2021 CanLII 127646 (ON LRB) and Vinyl Window Designers Ltd. o/a Performance Windows and Doors, 2021 CanLII 29679 (ON LRB). The OLRB found that these decisions were far from novel and not at odds with the jurisprudence of the OLRB that founded the Decision.
 The definition of “construction industry” in s. 1(1) of the Labour Relations Act is as follows:
“construction industry” means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site; The Union submitted to the OLRB that the work in question was “constructing” “altering” or “repair”. It submits that the OLRB erred in focusing on “repair” without addressing “constructing” or “altering” in s.1(1) and unduly focused on Master Insulators’ in this regard. The Union submits that the five types of work listed in the above definition are distinct and the three that it raised should have been addressed. However, the Union also acknowledges that work may fall into more than one category.
 In its comprehensive Decision, the OLRB expressly set out the Union’s position on both “constructing” and “altering” as well as the Union’s position that the work was “repair”, not maintenance. In its discussion of the factors that tipped the balance, the OLRB specifically found that the work “did nothing to change or add to” the big pipe. The OLRB should not be faulted for choosing this phrase rather than “alter” or “construct”.
 Further, Master Insulators’ is relevant to distinguishing between maintenance work and construction work, not just maintenance work and repairs: Master Insulators’, at para. 28.
 In its Reconsideration Decision, the OLRB addressed the Union’s statutory interpretation issue arising from the Decision, which was then focused on “altering”. The OLRB noted that the Decision asked whether the work at issue merely sustained an already operative system (not construction work) or instead rehabilitated or improved that system or added to system capacity (construction work), all of which needed to be addressed in the broader contextual purpose of the work at issue. The OLRB was not persuaded that it should adopt a fundamentally different analytical approach depending on whether the assertion was that the work involved “altering” rather than “repairing”. The OLRB found that the Union’s submission called for an overly narrow parsing of the terms without considering the whole of the terms used in the Act.
 We find that the OLRB’s interpretation of the definition and the approach to be taken to determine whether or not something is “constructing” “altering” or “repair” falls well within its expertise to interpret its own statute and does not render the Decision or the Reconsideration Decision unreasonable.
 The Union submits that the OLRB failed to address other issues or concerns raised by the Union about the purpose and function of the CIPP. The Union submits not only that the CIPP altered the pipe but that it was a modern way of replacing an old sewer pipe with a new one. The OLRB did address these submissions, including in factual findings that the CIPP re-lining of the big pipe did not change the functional purpose or capacity of the pipe in any material fashion.
 In this application, the Union placed considerable emphasis on the new OLRB jurisprudence that it relied on at the reconsideration stage, again submitting that it changed the approach used when distinguishing between repair and maintenance. In the Union’s submission, the Infrared decision and the decisions that follow it “abandoned” the prior approach of identifying a “system” as set out in Master Insulators’ and many other cases in favour of a contextual approach that considers the nature and the purpose of the work. The Union submits that the OLRB wrongly rejected the submission that Infrared marked a change in approach and that the OLRB failed to consider key contextual factors such as the purpose and tasks involved with the CIPP work.
 As shown in both Decisions, there is very extensive OLRB jurisprudence on the approach to be taken in cases such as this, including Master Insulators’ and many cases since then. As set out in the Reconsideration Decision, the newer case of Infrared begins its analysis with Master Insulators”, which Infrared describes, at para. 46, as “the seminal case in this area of labour relations”. Infrared goes on to quote extensively from Master Insulators’, including its observation that the distinction between construction and maintenance is not easily made, that the context of the employer’s operations must be examined critically, and that work that assists in preserving the functioning of a system or part of a system is maintenance work.
In International Union of Operating Engineers, Local 793 v 1476247 Ontario Ltd. (Div Court, 2023) the Divisional Court considered (and allowed) a JR of several OLRB decisions favouring an employee who was successful in a s.42 ['Vote on employer’s offer'] LRA request. At paras 53-71 the court considers the existence and nature of 'pattern agreements' in the construction sector.
. Strasser & Lang v. Carpenters’ District Council of Ontario et al. [for numbered case cites see the link]
In Strasser & Lang v. Carpenters’ District Council of Ontario et al. (Div Court, 2023) the Divisional Court considers an employer's JR of a construction industry union certification by the OLRB [LRA ss.126-168 address the construction sector]:
 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.
 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.)
 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. 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.
. 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.”
 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), 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.)
(a) the bargaining unit; and
(b) the percentage of employees in the bargaining unit who are members of the trade union.
 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.)
 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.
 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  has been contravened or that there has been fraud or misrepresentation. (LRA, s. 128.1(5).)
 The Board may hold a hearing if it considers it necessary in order to make a decision: Section 128.1(6).
 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.
 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).
 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:
“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.
 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.