) ) RAIL CANTECH INC. Applicant – v. –, 2013 ONSC 7236

CITATION: Rail Cantech Inc. v. Labourers’ International Union of North America , 2013 ONSC 7236 DIVISIONAL COURT FILE NO.: 127/13 DATE: 20131121 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., BALTMAN AND MCEWEN JJ. BETWEEN: ) ) RAIL CANTECH INC. Applicant – and – LABOURERS’ INTERNATIONAL UNIONOF NORTH AMERICA, ONTARIOPROVINCIAL DISTRICT COUNCIL andONTARIO LABOUR RELATIONS BOARD Respondents )) )))) ))))))) Greg F. McGinnis, for the Applicant Lorne A. Richmond, for the Respondent,Labourers’ International Union of NorthAmerica, Ontario Provincial District Council Leonard P.

Marvy, for the Respondent, OntarioLabour Relations Board ) ) ) HEARD at Toronto: November 21, 2013 then r.s.j. (ORALLY) [1] The respondent Union has brought a certification application before the Ontario Labour Relations Board.

The parties agreedthat the Board determine the constitutional issue first, namely, whether the employer Cantech’s labour relations fall under federal orprovincial jurisdiction. [2] The Board found that the certification application fell within provincial jurisdiction and that accordingly, the Ontario LabourRelations Board had jurisdiction to deal with the matter. [3] The applicant seeks judicial review before this Court of the Board’s decision on the constitutional issue. [4] The respondent Union submits that while the constitutional issue has been decided, there has been no final determination ofthe certification application, as the employer, Cantech, opposes certification on grounds other than the constitutional objection. [5] The Union submits that Cantech has other non-constitutional grounds for opposing the certification application that maysucceed on the merits.

If the Union is not certified on the merits, this application would be rendered meaningless. Alternatively, if theUnion is certified on the merits, the employer may later apply for judicial review of that determination on separate grounds resulting in asecond judicial review application. Thus, hearing this application now would violate the principle of judicial economy. [6] The Union further submits, that in these circumstances the application is premature. It cites in support the decision of thisCourt in Ontario College of Art v.

Ontario (Human Rights Commission), (1993) (ON SCDC), 11 O.R. (3d) 798,wherein Chief Justice Callaghan advanced the proposition that absent extraordinary or exceptional circumstances, the Divisional Courtwill not fragment proceedings before administrative tribunals and will refuse to consider individual legal issues, including constitutionalissues arising from such proceedings, until they are concluded. Specifically, at paras. 6 to 7, he stated the following: For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before

administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. While there were constitutional issues raised in the course of this application, I should also point out that this court has followed a policy of not ruling on such issues unless it is absolutely necessary to do so.

Whether or not those issues will continue to be of interest at the time of an appeal to this court will depend on the outcome before the board. It may well be that issues foreseen at this time will not exist at the termination of the proceedings. Furthermore, as has been said in many cases in relation to other boards and tribunals, it is preferable to consider issues such as those raised on this application against the backdrop of a full record, including a reasoned decision by the board or tribunal.

Obviously, this is usually available to the court only after the administrative body has conducted a full hearing. [ 7 ] Recently, in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 , the Court of Appeal has affirmed that even a true question of jurisdiction does not, of itself, amount to “exceptional circumstances” justifying judicial review until the relevant administrative processes are exhausted (See: para. 70).

The applicant may demonstrate exceptional circumstances by adducing evidence of hardship, prejudice, costs, or delay. (See: para. 80). [ 8 ] In our view, the employer Cantech, has raised no exceptional circumstances that would warrant this Court to review the Board’s decision on the constitutional issue before the Board has finally decided the certification application. [ 9 ] Accordingly, the application is quashed as premature. COSTS [ 10 ] I have endorsed the Application Record as follows, “For oral reasons delivered this day, the application is quashed as premature.

Counsel have agreed that costs in the amount of $8,500 all inclusive are appropriate and are accordingly awarded to the respondent.” THEN R.S.J. BALTMAN J. MCEWEN J. Date of Reasons for Judgment: November 21, 2013 Date of Release: December 5, 2013 CITATION : Rail Cantech Inc. v. Labourers’ International Union of North America, 2013 ONSC 7236 DIVISIONAL COURT FILE NO.: 127/13 DATE: 20131121

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., BALTMAN AND MCEWEN JJ. BETWEEN: RAIL CANTECH INC. Applicant – and – LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and ONTARIO LABOUR RELATIONS BOARD Respondents ORAL REASONS FOR JUDGMENT THEN R.S.J. Date of Reasons for Judgment: November 21, 2013 Date of Release: December 5, 2013