2023 ONSC 870, 2023 ONSC 870

CITATION: Holland, L.P. v. Labourers’ International Union of North America et al; 2023 ONSC 870 DIVISIONAL COURT FILE NO.: 673/21 DATE: 20230207 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Holland, L.P., Applicant AND: Labourers' International Union of North America, Ontario Provincial District Council and Ontario Labour RelationsBoard, Respondents BEFORE: Backhouse, Newton, O’Brien JJ. COUNSEL: A. Freedman and C. Nevison, for the Applicant B. Katz and E. Denomme, for the Respondent, Labourers’ International Union of North America, Ontario ProvincialDistrict Council A. Hart and A.

Bowker, for the Respondent, Ontario Labour Relations Board HEARD at Toronto: February 2, 2023 via videoconference ENDORSEMENT By the Court: [1] This application for judicial review was brought by the Applicant employer, Holland, L.P., to challenge a decision of theOntario Labour Relations Board. The Respondent union, Labourers’ International Union of North America, Ontario Provincial DistrictCouncil, had brought several applications for certification under the Labour Relations Act, 1995, S.O. 1995, c. 1.

Pursuant to thoseapplications, the union sought to represent bargaining units of Holland employees who were working under contracts including withCanadian National Railway (“CN”) and Canadian Pacific Railway (“CP”).

Holland took the position that the Board did not havejurisdiction because its labour relations were federally regulated. [2] The Board decision that Holland seeks to judicially review addressed only the constitutional question regarding jurisdiction.The Board found that the presumption of provincial jurisdiction over labour relations had not been displaced and the union was thereforeentitled to proceed to the next steps of its certification applications before the Board. [3] In its written material filed in this Court, the Board took the position that the application for judicial review was premature.Neither the union nor Holland addressed prematurity in its written material. [4] At the outset of the hearing, the panel requested submissions from all parties on the question of prematurity.

The unionsupported the Board’s position that the matter was premature. Holland submitted that the application was not premature. It argued thatthe Board had reached a final decision on the question of jurisdiction. Further, in its submission, the Board’s decision would havesignificant impact regardless of the outcome of the certification applications, given that Holland historically has managed itsemployment relations as governed federally.

It is concerned that if it is ultimately successful in defeating the certification applications,the jurisdictional decision will remain unchallenged. [5] After hearing the parties’ submissions, the panel advised that the matter was dismissed on the basis of prematurity, withreasons to follow. These are our reasons. [6] Absent exceptional circumstances, the Divisional Court will not fragment proceedings before administrative tribunals.

Thismeans that unless the circumstances are exceptional, the Court will refuse to consider individual issues, including constitutional issues,until the proceedings are concluded: Ontario College of Art v. Ontario (Human Rights Commission), (1993) (ONSCDC), 11 O.R. (3d) 798, at paras 6-7; Rail Cantech v. Labourers’ International Union of North America, 2013 ONSC 7236, at para. 6. [7] In Volochay v.

College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 67, the Court of Appeal confirmed thateven true questions of jurisdiction do not in themselves amount to “exceptional circumstances.” [8] In Rail Cantech, this Court quashed an application for judicial review as premature in circumstances almost identical to thosebefore us. As in this case, the union there had brought a certification application, which the Board determined fell within provincialjurisdiction. The employer then sought judicial review of the decision on the constitutional issue.

The Court found there were noexceptional circumstances that would warrant a review of the constitutional issue before the Board had finally decided the certificationapplication. [9] Holland submitted we should reach a different conclusion. It took issue with the statement in Rail Cantech at para. 5 that ifthe union was not certified on the merits, the application for judicial review “would be rendered meaningless.” In Holland’s submission,the decision in the current case would have significant impact on the management of its labour relations regardless of the outcome of the

certification application. [ 10 ] In our view, this matter is on all fours with Rail Cantech . The proceedings before the Board in this case should not be fragmented for several reasons. If the union is successful on the certification applications, the decision of the Board may be judicially reviewed, leading to a second judicial review and the inefficient use of this Court’s resources. Further, the Board’s determination on the constitutional question was specific to the circumstances before it.

The Board’s decision carefully reviewed and relied on findings related to, for example: the nature of Holland’s contracts with CN and CP (renewable, fixed-term); that Holland supervises and controls its own employees; that Holland does not work for a single federal undertaking but does a substantial amount of work for CP and CN; and that its relationships with CN and CP are substantially the same as with provincially regulated clients.

Given that the Board’s determination related to the specific business relationships and other facts before it, it was not necessarily a constitutional determination applicable to all Holland labour relations matters for all time. [ 11 ] Finally, while Holland asserts that the Board’s decision, if it remains unchallenged, will significantly impact how it manages its labour relations, the record before the Board in this case does not permit us to accept that assertion at face value.

The Board noted in its decision that Holland previously entered into two collective agreements with LIUNA under which it agreed to apply a collective agreement which refers to provincial legislation, even though it otherwise has historically managed its operations as governed by federal legislation.

Holland did not provide any specific detail in this Court as to how it had or would change its management of labour relations as a result of the Board’s decision. [ 12 ] Overall, Holland has not demonstrated any exceptional circumstances that would justify fragmenting the proceedings before the Board. [ 13 ] As indicated orally, the application for judicial review is dismissed. In accordance with the agreement between the parties, no costs are ordered. _______________________________ Backhouse, J. _______________________________ Newton, J. _______________________________ O’Brien, J. Date: February 7, 2023