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Labour - Standard of Review. Currie v. Peel District School Board [reprisals]
In Currie v. Peel District School Board (Div Court, 2024) the Divisional Court dismissed a labour-OSHA JR.
Here the court considers the SOR (deference) for a labour-OSHA reprisal JR:[36] In Carney, at para. 10, the Divisional Court explained:The issue for the court is not whether the decision under review is correct. The issue is whether it is reasonable, within the meaning of Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, paras. 13, 83, 99 and 100. Decisions of the Ontario Labour Relations Board in reprisal cases are afforded special deference, not only because of the Board's expertise but because of the strong privative clauses in ss. 114 and 116 of the Labour Relations Act, 1995, S.O. 1995 c. 1. Section 50(4) of the OHSA specifies that these privative clauses apply to unfair reprisal complaints. [37] More generally, appeal 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; see also Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, at paras. 91-92.
[38] The OLRB has exclusive jurisdiction to exercise the powers conferred upon it by s. 50 of the OHSA in reprisal cases: see OHSA, s. 50(4); Labour Relations Act, s. 114(1). The OLRB’s decisions in reprisal cases should be afforded the highest level of judicial deference: Carney, at para. 10; Maystar, at para. 42. . Ontario Secondary School Teachers' Federation v. Ontario
In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.
In this quote the court notes the 'expertise' of the OLRB, and consequent deference to be accorded it:[101] In reviewing a decision of the OLRB, this Court must be cognizant of its expertise in all matters of labour relations, including those involved in collective bargaining. Deference must be afforded to this expertise which will include the multiplicity of considerations that will have a bearing on the conduct of the parties to collective bargaining, both present and future. It is trite to observe that collective bargaining in a situation like this occurs against a backdrop of a continuing relationship between the parties, a fact that will have a bearing on the objectives of the parties that may bend and shift during the course of such negotiations (see: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th), at para. 92. See also Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, 476 D.L.R. (4th) 342). . RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
In RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Div Court, 2023) the Divisional Court considers a JR application to set aside a labour certification "to represent certain employees within one division of the Company".
In these quotes, the court considers the standard of review (SOR) applicable to the OLRB - here on the issue of 'expertise':[23] While expertise is no longer a factor in determining the applicable standard of review, it is a factor in applying it. Both before and since Vavilov courts at all levels have recognized the Board’s specialized expertise in determining grievances filed under s. 133 of the Act and have held that the Board should be afforded the highest degree of deference in its interpretation of collective agreements.
[24] In Electrical Power Systems Construction Association v. Labourer’s International Union of America, 2022 ONSC 2313, [2022] O.L.R.B. Rep. 497 (Div. Ct.), the Divisional Court held, at paras. 14 and 15:[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that “the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording 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, [2008] O.J. No. 1353, at para. 42).
[15] The interpretation of collective agreements is at the very heart of the Board’s jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements. [Citation omitted.] [25] In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, the Court of Appeal for Ontario dealt with an appeal from a Divisional Court decision that quashed three decisions of the Board. In allowing the appeal, the Court of Appeal made the following comments about the role of expertise, at para. 61:[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting a reasonableness review”. Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it. [26] In this case, the Board was dealing with a certification application within the construction industry. The Divisional Court has observed that “[t]he Board’s work within the construction industry is essentially a specialty within a specialty”: I.B.E.W. Local 894 v. I.B.E.W. First-District Canada, 2014 ONSC 1997, [2014] O.L.R.B. Rep. 423 (Div. Ct.), at para. 34. The court has repeatedly taken note of this in dismissing applications for judicial review (see, most recently, Strasser & Lang v. Carpenter’s District Council of Ontario et al., 2023 ONSC 2247 (Div. Ct.)).
[27] With respect to the certification provisions of the Labour Relations Act and the determination of the appropriate bargaining unit, the Divisional Court has noted that the “Board was created over 70 years ago. From the outset of its creation, the Board has had the obligation to certify trade unions to represent employees in appropriate bargaining units. If there can be said to be a prime example of the Board’s core functions, this is it”: Audio Visual Services (Canada) Corp. v. Ontario Labour Relations Board, 2019 ONSC 5717, [2019] O.L.R.B. Rep. 677 (Div. Ct.), at para. 58. . Toronto Professional Fire Fighters’ Association v. City of Toronto
In Toronto Professional Fire Fighters’ Association v. City of Toronto (Div Court, 2023) the Divisional Court considers the deference (standard of review) accorded to labour arbitrators:[21] Labour arbitrators are bound by common law principles of contractual interpretation when interpreting collective agreements. The goal of the interpretation exercise "is to determine the objective intention of the parties based on the words they have chosen to use in their agreement" and a "practical, common-sense approach is to be applied to contractual interpretation." The parties are assumed to have intended what they said and the meaning of the collective agreement is to be sought in its express provisions. However, in the field of labour arbitration a reviewing court is not to set aside the findings of a properly constituted board of arbitration which has been called upon to interpret a collective agreement unless the court is of the opinion that the interpretation given to the contract by the board is one that the language of the contract cannot reasonably bear. The attraction of alternative interpretations and even the court's preference for such are both irrelevant considerations if the board's interpretation can reasonably be taken from the agreement. (see: Canadian Union of Public Employees, Local 5825 v. Scarborough Health Network, 2022 ONSC 604; Re I.C.L. International Carriers Ltd. and Teamsters Union, Locals 141, 879, 880 and 938, 1984 CanLII 1989.
[22] Further, the interpretation of a provision of a collective agreement such as this by an arbitrator intimately familiar with the Collective Agreement as a whole and the factual and labour relations context of its operation to govern the dealings between the parties is entitled to considerable deference (see: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780)).
[23] It is not for a reviewing court to interfere with a decision because it would have decided the issue differently or because an alternative interpretation would have been open to the tribunal. In conducting a reasonableness review, the court starts with the reasons of the tribunal and examines them with a view to considering whether the rationale for the decision and the outcome of the decision were reasonable. In this case, the reasons of the Arbitrator for arriving at his conclusion and the outcome itself easily withstand all scrutiny under the considerations for reasonableness as set out in Vavilov, supra (at para. 83). In my view, they are unassailable. . Mulmer Services Ltd. v. LIUNA, Local 183
In Mulmer Services Ltd. v. LIUNA, Local 183 (Div Court, 2023) the Divisional Court considered the LRA's privative provisions [s.114(1) and s.116] and how that is interpreted in modern JR 'standard of review' doctrine:[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. . 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 the 'expertise' deference owed to the OLRB:[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]
....
[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. . Toronto District School Board v. Canadian Union of Public Employees [see full case for numbered case cites]
In Toronto District School Board v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considers the deferential (SOR) approach to labour boards (OLRB):[23] In reviewing labour relations decisions, the Divisional Court[3] has observed:[14] Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that "the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording 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, [2008] O.J. No. 1353, at para. 42).
[15] The interpretation of collective agreements is at the very heart of the Board's jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.
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