2017 ONSC 6057, 2017 ONSC 6057

CITATION : Carpenters and Allied Workers, Local 27 v. Riverside Door & Trim Inc., 2017 ONSC 6057 DIVISIONAL COURT FILE NO.: 363/16 DATE: 20171012 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: CARPENTERS AND ALLIED WORKERS, LOCAL 27, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Applicant AND RIVERSIDE DOOR & TRIM INC. and ONTARIO LABOUR RELATIONS BOARD, Respondents BEFORE: Lederman, Swinton and Rady JJ. COUNSEL: David P. Jacobs , Counsel for the Applicant William D. Anderson, Counsel for the Respondent Riverside Door & Trim Inc.

Leonard Marvy , Counsel for the Ontario Labour Relations Board HEARD at Toronto: October 10, 2017 ENDORSEMENT Swinton J.: [ 1 ] The applicant, Carpenters and Allied Workers, Local 27 (the “Union”), seeks judicial review of a reconsideration decision of the Ontario Labour Relations Board (the “Board”) dated July 13, 2016, in which the Board held that the application filing date of the Union’s application for certification of a bargaining unit in the construction industry was March 29, 2016, the date found in two places on its application form.

Accordingly, the Board held that the application was filed out-of-time on May 29, 2016 when it was received by the Board. The Board refused to amend the application filing date, and concluded that the application should not have been processed. Accordingly, the Board dismissed the application. [ 2 ] In the reconsideration decision, the Board reversed an earlier decision of June 3, 2016, in which it had permitted the Union to amend the application filing date to May 29, 2016. The earlier decision had been made without the benefit of submissions from the respondent Riverside Door & Trim Inc. (the “Employer”).

In the reconsideration decision, the Board found that an amendment to the application filing date would cause material prejudice to the Employer. [ 3 ] All parties agree that the standard of review of the Board’s decision is reasonableness. [ 4 ] The application filing date on an application for certification in the construction industry is important, because only employees who are physically at work on the application filing date in the proposed bargaining unit are relevant to the determination of whether the applicant union should be certified.

An employer who receives an application for certification has two days to respond, and is required to list each job site in the proposed bargaining unit at which work was being performed on the application filing date and the employees at work. The Board’s response form directs the employer to paragraph 4 of the application for certification to find the application filing date – in this case, March 29, 2016. [ 5 ] The Board found that the Union inadvertently erred in dating the application for certification and the declaration of the solicitor as March 29.

The Union argues that the Board erred in finding that there was evidence that the Employer would suffer material prejudice if the application were to be processed, as the Employer had received the application on May 31, 2016 and had had an opportunity to investigate. [ 6 ] In the reconsideration decision, the Board was exercising its discretion whether to relieve from compliance with its rules.

In doing so, it drew on its expertise in construction industry labour relations, and its decision is entitled to deference. [ 7 ] The Board was aware that it had the discretion to relieve from the application of its rules pursuant to Rule 40.7. It considered factors set out in its jurisprudence, considering which party caused the error, the length of the delay and prejudice to the responding party.

It reasonably concluded, based on the parties’ submissions, that an amendment of the application filing date to May 29 would cause material prejudice to the Employer in the context of a construction industry certification, where delay hampers the determination of who was at work on the application filing date, what work they were doing and for how long. [ 8 ] I do not accept the Union’s argument that it was denied natural justice because the Board proceeded on the basis of written submissions.

The Board considered the submissions of the Union on the lack of prejudice to the Employer and preferred the submissions of the Employer on this issue, as it was entitled to do. [ 9 ] The Board’s decision is justified and intelligible, and falls within a range of reasonable outcomes, based on the facts and the law. Accordingly, the application for judicial review is dismissed. Costs to the Employer are fixed at $5,000 all inclusive, an amount

agreed upon by the parties, payable within 30 days. The Board does not seek costs. Swinton J. I agree _______________________________ Lederman J. I agree _______________________________ Rady J. Released: October 12, 2017