) ) DURVAL TERCEIRA, JAIME MELO, MICHAEL O’BRIEN, GAETANO STRAZZANTI v. CESAR DANIEL, 2013 ONSC 3344

CITATION : Terceira, Melo v. Labourers International Union of North America, 2013 ONSC 3 344 DIVISIONAL COURT FILE NO.: 520/12 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, NORDHEIMER AND HARVISON YOUNG JJ.

BETWEEN: ) ) DURVAL TERCEIRA, JAIME MELO, MICHAEL O’BRIEN, GAETANO STRAZZANTI and CESAR DANIEL AVERO Applicants – and – LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, UNIVERSAL WORKERS UNION – LABOURERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183 and SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 2, BREWERY GENERAL AND PROFESSIONAL WORKERS’ UNION -and – THE ONTARIO LABOUR RELATIONS BOARD Respondents )) )) )) )) ))))))))))))))))) Sean Dewart and Tim Gleason , for the Applicants Paul J. J. Cavalluzzo and Elichai Shaffir , for the Respondent, Labourers International Union of North America Ian J.

Roland and Debra Newell , for the Respondent, Universal Workers Union – Labourers International Union of North America, Local 183 Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board ) HEARD at Toronto: June 6, 2013 NORDHEIMER J. (orally) [ 1 ] The applicants bring this application for judicial review in which they seek an order quashing the decisions of the Ontario Labour Relations Board dated March 30, 2012 and August 29, 2012, in which the Board dismissed an application brought by the applicants.

Since, in my view, this application can be disposed of on a preliminary issue, it is unnecessary for me to address any of the other issues raised in the application. [ 2 ] The decisions of the Board were rendered by Vice-Chair Shouldice. About seven years earlier, when the Vice-Chair was a member of the Bar, he had acted for one of the applicants, Michael O’Brien. The earlier matter involving Mr. O’Brien concerned his employment with Local 183 or related entities. Local 183 is one of the respondents in this application. The applicants asserted that Mr.

O’Brien’s employment was an issue in the current application and that the Vice-Chair’s prior representation of him gave rise to possible conflicts, both in terms of his knowledge of Mr. O’Brien’s employment history with Local 183 and the possibility that the Vice-Chair might wind up as a witness on the current application if it was permitted to proceed. [ 3 ] As a consequence of this prior relationship, the applicants asked that the Vice-Chair recuse himself from hearing the application. The other parties took no position on this request. The Vice-Chair declined to recuse himself. In so doing, the Vice-Chair

said that he had no present recollection of the facts surrounding his earlier representation of Mr. O’Brien. The Vice-Chair went on to addthat, even if his earlier representation of Mr. O’Brien involved matters that might have some relevance to the current application, hewould not have to be a witness in the proceeding because Mr. O’Brien was himself available as a witness for that purpose. [4] It is agreed that there is no standard of review applicable here as the matter raised is one of procedural fairness and naturaljustice. [5] In my view, the Vice-Chair misunderstood the test to be applied in this situation.

The issue of conflict as it relates to formerclients has been addressed by the Supreme Court of Canada in a number of cases, chief among those is Macdonald Estate v. Martin, (SCC), [1990] 3 SCR 1235. In that case, Sopinka J. held that a strict test should be applied where there is a potentialconflict between a lawyer who acted for a client and that lawyer’s subsequent involvement in cases concerning the same client.

SopinkaJ. noted that where a lawyer has acted for a person, the court “should infer that confidential information was imparted unless the solicitorsatisfies the court that no information was imparted which could be relevant”. The Vice-Chair in this case cannot establish that factsince, on his own admission, he has no recollection of the earlier matter. On this point, the Vice-Chair does not seem to have consideredthat hearing evidence relating to his former client might, at some point in the future, trigger memories of information imparted to him byhis former client.

Sopinka J. also held that if that test is not met, then there can be no suggestion made that any information obtainedfrom the client could not be misused. Misuse is presumed to occur. [6] Even if an actual conflict does not arise on the facts here, what the Vice-Chair also seems not to have considered is the issueof the appearance of him presiding over a matter in which a former client is involved. This is an equally important consideration.

AsSopinka J. also noted in Macdonald Estate, “This trend is the product of a strong policy in favour of ensuring not only that there be noactual conflict but that there be no appearance of conflict”. [7] The Vice-Chair did make reference to the test for the appearance of bias. That test is what would a reasonable personproperly informed realistically conclude or, put another way, would that person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. In my view, the Vice-Chair erred in answering that question inthe negative.

I believe that a reasonable person would have serious difficulty with the concept that a lawyer, who had once acted for aclient on a particular matter, would then sit in judgment on another matter involving that same client where very similar, if not identical,issues are raised. Not only would a reasonable outside observer have that difficulty, Mr. O’Brien would himself have a legitimateconcern whether his prior involvement with the Vice-Chair as his lawyer on a different aspect of this same issue could, in some fashion,taint the Vice-Chair’s views and conclusions.

This is especially so in a case where the issues between the parties have been extant for alengthy period of time and where positions on those issues appear to have become very deeply entrenched. [8] The respondents rely on this court’s decision in Marques v. Dylex Ltd. (ON SC), [1977] O.J. No. 2469(Div. Ct.) as justifying the Vice-Chair’s decision. I consider that reliance to be misplaced for three reasons. First, a fair reading of thatdecision does not suggest that there is a lower standard for conflicts when members of the Ontario Labour Relations Board are involvedconcerning former clients.

Second, even if the decision does purport to set out a lower standard, the decision predates the decision inMacdonald Estate and the adoption by the Supreme Court of Canada of a stricter test for conflicts. Third, the court in Dylex made itclear that the Vice-Chair in that case “had nothing to do with any aspect of the present proceedings”. The same cannot be said for thiscase.

I would also note that, notwithstanding that conclusion, the court in Dylex expressly declined to comment on the “prudence” of theVice-Chair having sat on that case. [9] The respondents also contend that the issue should be left for later determination if it arises directly. If so, the respondentssay, the Vice-Chair could then recuse himself. The submission that the matter should be left on the hope that it will not arise is not onethat commends itself to me.

For one thing, it does not address the appearance issue that is of particular importance here. [10] Finally, the respondents assert that the applicants did not raise this issue at their first opportunity and, on that basis alone, theobjection should be dismissed. I do not agree. There were a multitude of other applications originally involved in the originalproceeding of which the applicants’ application was but one.

It is only after all of those other applications were resolved, leaving theapplicants’ application as the lone one to be considered by the Board, that the issue of the possible conflict really crystalized. In anyevent, the nature of the conflict here is such that it cannot be avoided by the mere fact that there was some delay in raising the issue.

The need for the appearance of fairness and impartiality is simply too important a concept to be defeated by that consideration alone. [11] In my view, the application must be allowed on this ground and the matter remitted back to the Ontario Labour RelationsBoard, differently constituted, for reconsideration. MOLLOY J. COSTS [12] I have endorsed the Application Record, “For oral reasons of Nordheimer J., this application is granted. The decisions of theBoard dated March 30 and August 29, 2012 are quashed. The matter is remitted for a new hearing before the Board, differentlyconstituted.

Costs to the applicants fixed at $20,000.00 all inclusive, payable by the two respondent Unions (International and Local183) jointly and severally.” NORDHEIMER J.

MOLLOY J. HARVISON YOUNG J. Date of Reasons for Judgment: June 6, 2013 Date of Release: June 14, 2013 CITATION : Terceira, Melo v. Labourers International Union of North America, 2013 ONSC 3 344 DIVISIONAL COURT FILE NO.: 520/12 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, NORDHEIMER AND HARVISON YOUNG JJ. BETWEEN:

DURVAL TERCEIRA, JAIME MELO, MICHAEL O’BRIEN, GAETANO STRAZZANTI and CESAR DANIEL AVERO Applicants – and – LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, UNIVERSAL WORKERS UNION – LABOURERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183 and SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 2, BREWERY GENERAL AND PROFESSIONAL WORKERS’ UNION -and – THE ONTARIO LABOUR RELATIONS BOARD Respondents ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: June 6, 2013 Date of Release: June 14, 2013