Amalgamated Transit Union, Local 113 v. Labour Relations Board (Ont.) et al., (2007) 233 O.A.C. 14 (DC)

• Judge: Ferrier, Whalen and Cumming, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 21, 2007
• Jurisdiction: Ontario
• Citations: (2007), 233 O.A.C. 14 (DC)

ATU v. LRB (2007), 233 O.A.C. 14 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.076

Amalgamated Transit Union Local 113 (applicant) v. Ontario Labour Relations Board and Toronto Transit Commission (respondent(s))

(261/06)

Indexed As: Amalgamated Transit Union, Local 113 v. Labour Relations Board (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Ferrier, Whalen and Cumming, JJ.

October 1, 2007.

Summary:

The Ontario Labour Relations Board, upon application by the Toronto Transit Commission, issued a cease and desist order directed at the Amalgamated Transit Union, Local 113, in respect of a work stoppage. The Union sought a reconsideration.

The Ontario Labour Relations Board denied the application. The Union applied for judicial review to quash both decisions by the Board. At issue was procedural fairness.

The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - On Sunday, May 28, 2006, Toronto Transit Commission (TTC) maintenance staff did not report for work - Picket lines were set up - Other employees refused to cross them - Public transit in Toronto stopped - The TTC concluded that this was an unlawful strike - It started work on an application to the Ontario Labour Relations Board for a cease and desist order - At 12:30 a.m. on May 29, TTC counsel telephoned the Board Chair to advise him of the pending application - At 1:21 a.m., a voice message was left with the union's vice-president that the TTC was seeking a cease and desist order - At 2:20 a.m., a TTC official reached the union vice-president and asked him where he was so he could be served with the TTC's application - His answer was: "Good luck trying to find me" - Application documents were completed at 3:00 a.m. - They were given to a former counsel of the union at 4:00 a.m. - The documents were given to the Board Chair at 4:30 a.m. - At 5:00 a.m., the Board Chair attempted to contact the union, to tell them that a hearing was scheduled for 5:30 a.m. - Only the TTC appeared - At 5:32 a.m., the Board Chair issued the order sought - At 5:50 a.m., the union president was served with the application documents - At 6:12 a.m., the Board Chair faxed his decision to the union office - The union was then granted a reconsideration hearing before the Board Vice-Chair, who imposed time limits on argumentation - The Board Vice-Chair confirmed the earlier decision - The Ontario Divisional Court upheld both Board decisions where there was no violation of procedural fairness given the urgency of the situation, the efforts made to reach the union, the Board's statutory purpose, under the Labour Relations Act (Ont.), to promote the expeditious resolution of workplace disputes, and the Board's statutory power to abridge the normal procedures - The Board had not proceeded by expedited hearing - At the reconsideration hearing, the union was able to fully present its case - The time limits on argumentation were justified - Any deficiency of fairness at the initial hearing was cured by the reconsideration hearing - See paragraphs 1 to 153.

Administrative Law - Topic 2407

Natural justice - Procedure - General - Curing of defects - [See Administrative Law - Topic 2266 ].

Labour Law - Topic 650

Labour relations boards and judicial review - Natural justice - Denial of - Notice - General - [See Administrative Law - Topic 2266 ].

Labour Law - Topic 664

Labour relations boards and judicial review - Natural justice - Denial of - Hearing - General - [See Administrative Law - Topic 2266 ].

Cases Noticed:

Fisher v. Hotels, Clubs, Restaurants, Taverns Employees' Union, Local 261 (1980), 28 O.R.(2d) 462 (Div. Ct.), consd. [para. 34].

Domtar Packaging Ltd. v. United Paperworkers International Union (1973), 1 O.R.(2d) 45 (Div. Ct.), refd to. [para. 35].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, consd. [para. 44].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104, refd to. [para. 44].

Canadian Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227; 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1, refd to. [para. 44].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 45].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201, refd to. [para. 45].

Ontario (Minister of Community, Family and Children's Services) v. Crown Employees Grievance Settlement Board et al. (2006), 213 O.A.C. 169 (C.A.), refd to. [para. 45].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 48].

Gismondi v. Human Rights Commission (Ont.) et al. (2003), 169 O.A.C. 62 (Div. Ct.), refd to. [para. 48].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, consd. [para. 50].

College of Teachers (Ont.) v. Power Workers' Union, [2000] O.L.R.B. Rep. 422; 132 O.A.C. 186 (Div. Ct.), consd. [para. 51].

Congrégation des témoins de Jéhovah de St-Jerôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650; 323 N.R. 1, consd. [para. 54].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 57].

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 226 N.R. 201; 160 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 57].

Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology et al. (2006), 212 O.A.C. 131; 80 O.R.(3d) 1 (C.A.), refd to. [para. 57].

Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267; 77 O.R.(3d) 543 (C.A.), refd to. [para. 58].

Elementary Teachers' Federation (Ont.) v. Board of Education of Toronto District (2004), 188 O.A.C. 302; 21 Admin. L.R.(4th) 1 (Div. Ct.), refd to. [para. 58].

Blasdell v. Labour Relations Board (Ont.) et al. (2006), 207 O.A.C. 50 (Div. Ct.), refd to. [para. 58].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 60].

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al. (2001), 272 N.R. 201; 201 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 61].

Royal Oak Mines Inc. v. Canada Labour Relations Board et al. (1996), 193 N.R. 81; 133 D.L.R.(4th) 129 (S.C.C.), refd to. [para. 61].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al. (1991), 122 N.R. 361; 47 O.A.C. 271; 81 D.L.R.(4th) 121 (S.C.C.), refd to. [para. 61].

Cedarville Tree Services Ltd. v. Labourers' International Union of North America (1971), 22 D.L.R.(3d) 40 (Ont. C.A.), consd. [para. 83].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R 560; 93 N.R. 81, consd. [para. 84].

McNaught v. Toronto Transit Commission et al. (2005), 194 O.A.C. 73; 74 O.R.(3d) 278 (C.A.), consd. [para. 85].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 109].

Tomko v. Labour Relations Board (N.S.) et al. (1979), 7 N.R. 317; 14 N.S.R.(2d) 191; 11 A.P.R. 191; 69 D.L.R.(3d) 250 (S.C.C.), consd. [para. 134].

Posluns v. Toronto Stock Exchange (1968), 67 D.L.R.(2d) 165 (S.C.C.), consd. [para. 148].

Ridge v. Baldwin, [1964] A.C. 40, consd. [para. 148].

Statutes Noticed:

Labour Relations Act, 1995, S.O. 1995, c. 1, sect. 2 [para. 67]; sect. 94 [para. 82]; sect. 100 [para. 73]; sect. 110(16) [para. 32]; sect. 110(17) [para. 80]; sect. 110(18) [para. 29]; sect. 110(20) [para. 30]; sect. 114 [para. 75]; sect. 115 [para. 76].

Labour Relations Act Regulations (Ont.), Rules of Procedure, rule 1 [para. 81]; rule 3.2, rule 6.1, rule 6.4, rule 6.6 [para. 81]; rule 7.3 [para. 81]; rule 7.3(b) [para. 36]; rule 38.1, rule 38.2, rule 38.4 [para. 81]; rule 38.5 [para. 37]; rule 40.7 [para. 81].

Rules of Procedure (Labour Relations Board) - see Labour Relations Act Regulations (Ont.).

Statutory Powers Procedures Act, R.S.O. 1990, c. S-22, sect. 32 [para. 40].

Authors and Works Noticed:

Ontario, Royal Commission Report on Labour-Management Relations in the Construction Industry (1962), pp. 27, 28 [para. 96]; 72 [para. 95].

Sack, Jeffrey, Mitchell, C. Michael, and Price, Sandy, Ontario Labour Relations Board Law and Practice (3rd Ed.) (1997 Looseleaf Ed.), vol. 2, para. 10.2 [para. 95].

Counsel:

J. Gregory Richards and Michael Stratham, for the applicant;

Leonard Marvy, for the Ontario Labour Relations Board;

Christopher G. Riggs, Q.C., for the Toronto Transit Commission.

This application was heard on March 21, 2007, by Ferrier, Whalen and Cumming, JJ., of the Ontario Divisional Court. The following decision of the Divisional Court was delivered by Whalen, J., and released on October 1, 2007.