Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 et al.,

• Jurisdiction: Ontario
• Judge: Doherty, Gillese and Epstein, JJ.A.
• Neutral Citation: 2008 ONCA 265
• Citation: 2008 ONCA 265,(2008), 235 O.A.C. 227 (CA),90 OR (3d) 451,292 DLR (4th) 554,69 Admin LR (4th) 271,[2008] OJ No 1353 (QL),235 OAC 227,90 O.R. (3d) 451,235 O.A.C. 227,[2008] O.J. No 1353 (QL),(2008), 235 OAC 227 (CA),292 D.L.R. (4th) 554
• Date: 28 March 2008
• Court: Court of Appeal (Ontario)

Maystar General Contractors v. IUPAT (2008), 235 O.A.C. 227 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AP.054

Maystar General Contractors Inc. (applicant/respondent) v. International Union of Painters and Allied Trades, Local 1819 (respondent/appellant) and Ontario Labour Relations Board (respondent/respondent)

(C47489; 2008 ONCA 265)

Indexed As: Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 et al.

Ontario Court of Appeal

Doherty, Gillese and Epstein, JJ.A.

April 11, 2008.

Summary:

An employer sought judicial review of a union certification decision and reconsideration decision of the Ontario Labour Relations Board. The Board made its decision without considering the employer's response to the certification application because the response was delivered after the statutory two-day time limit and the Board concluded it did not have jurisdiction to consider late-filed information.

The Ontario Divisional Court, in a decision reported at 223 O.A.C. 13, allowed the application, set aside the decisions and remitted the matter to the Board for reconsideration in light of the court's reasons for judgment. The union obtained leave to appeal the Divisional Court order. Before the appeal was heard, the Board implemented the Divisional Court order, considered the employer's information and rescinded the certification order. The issue arose whether the union's appeal was now moot.

The Ontario Court of Appeal dismissed the appeal as moot.

Editor's Note: for a related costs decision in this matter see 227 O.A.C. 85.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - An employer sought judicial review of a union certification decision and reconsideration decision of the Ontario Labour Relations Board - The Board made its decision without considering the employer's response to the certification application because the response was delivered after the statutory two-day time limit and the Board concluded it did not have jurisdiction to consider late-filed information - The Ontario Divisional Court allowed the application, set aside the decisions and remitted the matter to the Board for reconsideration in light of the court's reasons for judgment - The union obtained leave to appeal the Divisional Court order - Before the appeal was heard, the Board implemented the order, considered the employer's information and rescinded the certification order - The Ontario Court of Appeal dismissed the union's appeal respecting the Divisional Court's order as moot - The relief sought by the union was no longer available - Post-judicial review events had reshaped the dispute between the parties such that the issue the court was asked to decide was not determinative of that dispute - This was not a case in which the court would exercise its discretion to decide the moot appeal on the merits in any event.

Cases Noticed:

Air Kool Ltd., Re (2005), 115 C.L.R.B.R.(2d) 261, refd to. [para. 11].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 24].

Tamil Co-operative Homes Inc. v. Arulappah (2000), 162 O.A.C. 356; 49 O.R.(3d) 566 (C.A.), refd to. [para. 25].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 26, footnote 4].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311, refd to. [para. 35].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 42].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 42].

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81, refd to. [para. 42].

New Brunswick (Board of Management) v. Dunsmuir (2008), 329 N.B.R.(2d) 1; 844 A.P.R. 1; 372 N.R. 1; 2008 SCC 9, refd to. [para. 43].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 42, footnote 7].

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al., [2001] 2 S.C.R. 565; 272 N.R. 201, refd to. [para. 42, footnote 7].

Easton's Group of Hotels Inc., Re, [2006] O.L.R.D. No. 2940, refd to. [para. 44, footnote 8].

Counsel:

Alan Minksy, Q.C. and E.M. Mitchell, for the appellant;

Martin Sclisizzi and Morton Mitchnick, for the respondent, Maystar General Contractors Inc.;

Leonard Marvy, for the respondent, Ontario Labour Relations Board.

This appeal was heard on March 28, 2008, by Doherty, Gillese and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered on April 11, 2008, by Gillese, J.A.