) ) S. & T. ELECTRICAL CONTRACTORS LIMITED v. S&T INDUSTRIAL INC., 2017 ONSC 2926

CITATION : S. & T. Electrical Contractors Ltd. v. Iron Workers District Council of Ontario, 2017 ONSC 2926 DIVISIONAL COURT FILE NO.: 406/16 DATE: 20170511 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SPIES and MATHESON JJ. BETWEEN: ) ) S. & T. ELECTRICAL CONTRACTORS LIMITED and S&T INDUSTRIAL INC. Applicants – and – IRON WORKERS DISTRICT COUNCIL OF ONTARIO – and – INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 786 – and – ONTARIO LABOUR RELATIONS BOARD Respondents ) ) ) ) )) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Daniel R.

McDonald , for the Applicants Robert Gibson and Gaylen Lindal , for the Respondent Iron Workers District Council of Ontario Leonard Marvy for the Respondent Ontario Labour Relations Board ) HEARD at Toronto: May 11, 2017 NORDHEIMER J. (orally) [ 1 ] This is an application by S. & T. Electrical Contractors Limited and S&T Industrial Inc. for judicial review of a decision of the Ontario Labour Relations Board (the “Board”).

At issue is a Ministerial Reference and a s. 96 application in which the Board found that the applicants and a bargaining agent were bound by a province-wide collective agreement for non-construction industrial maintenance work internal to Essar Steel Algoma. [ 2 ] Unfortunately, and as the Board acknowledges, after the Board received the Ministerial reference, it issued a faulty Confirmation of Filing to the parties. The Confirmation did not accurately reflect the question posed by the Minister to the Board. Rather, it set out two questions that were different from the question posed by the Minister.

Additionally, and also unfortunately, the Ministerial reference received by the Board setting out the specific question posed by the Minister was not attached to the Confirmation of Filing (which is the Board’s normal practice) thereby compounding the faulty communication provided to the parties. The parties only learned of the actual question posed by the Minister when they received the Board’s decision.

[3] I consider it unnecessary to get into the merits of the application because in my view this application can be dealt with on thebasis that it is premature. The Board has express jurisdiction to reconsider any decision that it makes pursuant to s. 114 of the LabourRelations Act, 1995, S.O. 1995, c. 1, Sched. A.

The applicants never requested that the Board reconsider its decision in light of theprocedural errors that the Board made regarding the question posed by the Minister. [4] It is well-established that a party must generally exhaust all available remedies before embarking on an application forjudicial review. As Gillese, J.A. said in Toth Equity Ltd. v. Ottawa (City), 2011 ONCA 372 , [2011] O.J.

No. 2128 (C.A.) atpara. 34: It is an important principle of administrative law that, absent exceptional circumstances, a party must exhaust any available adequatealternative remedy within the administrative process before pursuing an application for judicial review: see Harelkin v. University ofRegina, (SCC), [1979] 2 S.C.R. 561. [5] The circumstances here, while unusual, are not the type of exceptional circumstances to which Gillese J.A. referred.

As theBoard submits, had a reconsideration been requested, the Board would have asked the parties for additional submissions and they wouldhave asked if either party was prejudiced by the faulty communication and, if so, how. The applicants never gave the Board thatopportunity. [6] Consequently, in my view, this application for judicial review is premature. The applicants ought to pursue their remediesbefore the Board before asking this court to exercise its discretion to review the decision by way of judicial review.

I note that the powerto reconsider under s. 114 is not time limited. [7] The application is therefore dismissed. COSTS [8] I have endorsed the Application Record of the Applicants as follows: “This application is dismissed for oral reasons given. The applicants will pay to the respondent costs fixed in the agreed amount of $5,000 all inclusive. The Board does not seek costs.” ___________________________ NORDHEIMER J. I agree ___________________________ SPIES J. I agree ___________________________ MATHESON J. Date of Reasons for Judgment: May 11, 2017 Date of Release: May 12, 2017 CITATION: S. & T.

Electrical Contractors Ltd. v. Iron Workers District Council of Ontario, 2017 ONSC 2926 DIVISIONAL COURT FILE NO.: 406/16DATE: 20170511

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SPIES and MATHESON JJ. BETWEEN: S. & T. ELECTRICAL CONTRACTORS LIMITED and S&T INDUSTRIAL INC. Applicants – and – IRON WORKERS DISTRICT COUNCIL OF ONTARIO – and – INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 786 – and – ONTARIO LABOUR RELATIONS BOARD Respondents ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: May 11, 2017 Date of Release: May 12, 2017