Terceira et al. v. Labourers International Union of North America et al., 2014 ONCA 839

• Judge: Feldman, Blair and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 11, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 839;(2014), 328 O.A.C. 213 (CA)

Terceira v. LIUNA (2014), 328 O.A.C. 213 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.002

Durval Terceira, Jaime Melo, Michael O'Brien, Gaetano Strazzanti and Cesar Daniel Avero (applicants/respondents) v. Labourers International Union of North America, Universal Workers Union - Labourers International Union of North America Local 183 , and Service Employees International Union Local 2, Brewery General and Professional Workers' Union and Ontario Labour Relations Board (respondents/ appellants )

(C58059; C58146; 2014 ONCA 839)

Indexed As: Terceira et al. v. Labourers International Union of North America et al.

Ontario Court of Appeal

Feldman, Blair and Pepall, JJ.A.

November 26, 2014.

Summary:

Five union employees were terminated for allegedly engaging in misconduct when they served on the board of their union local. The employees commenced an application before the Ontario Labour Relations Board (OLRB), alleging that the union violated certain provisions of the Labour Relations Act. As a preliminary issue, the employees requested that the Vice-Chair recuse himself on the basis of a reasonable apprehension of bias. The employees submitted that the Vice-Chair had previously acted for one of them in a dispute with the local union and there was potential for the Vice-Chair to become a witness in the application. The Vice-Chair refused to recuse himself. He also dismissed a reconsideration application. The employees sought judicial review of both decisions.

The Ontario Divisional Court, in a decision reported [2013] O.A.C. Uned. 426, allowed the application. The court held that the Vice-Chair was in an actual or perceived conflict of interest. The court quashed both decisions and remitted the matter for reconsideration by a differently constituted OLRB. The international and local unions appealed.

The Ontario Court of Appeal allowed the appeal, set aside the order of the Divisional Court, and restored the orders of the OLRB. The Divisional Court applied the wrong test (i.e., the test for conflict of interest), instead of the reasonable apprehension of bias test, in dealing with the recusal application.

Administrative Law - Topic 2084

Natural justice - Constitution of board or tribunal - Considerations - Bias - Conflict of interest - The Ontario Court of Appeal distinguished between a claim of conflict of interest by a lawyer and reasonable apprehension of bias by an adjudicator - In a claim respecting a lawyer's potential conflict of interest, the imparting of confidential information was presumed to have occurred - In a claim of reasonable apprehension of bias of an adjudicator, the impartiality of the adjudicator was presumed (i.e., there was a strong presumption of adjudicative impartiality and integrity) - The rules governing a lawyer's conflict of interest stemmed, in part, from the existence of a fiduciary relationship and a duty of loyalty owed to the client - In contrast, the adjudicator's duty was anchored in principles of procedural fairness, including impartiality - See paragraphs 27 to 29.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Administrative Law - Topic 2084 and Labour Law - Topic 645 ].

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - [See Administrative Law - Topic 2084 and Labour Law - Topic 645 ].

Labour Law - Topic 645

Labour relations boards and judicial review - Natural justice - Denial of - Bias - Employees, who had filed a complaint under the Labour Relations Act, applied to have the Vice Chair of the Ontario Labour Relations Board (OLRB) recuse himself because he had acted for one of the employees several years earlier in a union dispute which was settled at the pleadings stage - The Vice-Chair refused to recuse himself - The employees applied for judicial review - The Ontario Divisional Court allowed the application, holding that the Vice-Chair was in an actual or perceived conflict of interest - The union appealed - The Ontario Court of Appeal allowed the appeal, holding that the Divisional Court applied the wrong test (i.e., the test for conflict of interest instead of the reasonable apprehension of bias test), in dealing with the recusal application - The Vice-Chair's decision was reinstated because the employees failed to rebut the presumption of impartiality attached to the Vice-Chair as an adjudicator - See paragraphs 27 to 37.

Labour Law - Topic 6046

Industrial relations - Complaints - Adjudicators - Bias - [See Labour Law - Topic 645 ].

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241; 77 D.L.R.(4th) 249, refd to. [para. 3].

Gray, Administrator of MacDonald Estate - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Martin v. Gray - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Committee for Justice & Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 3].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 3].

Wal-Mart Canada Corp., Re (2011), 197 C.L.R.B.R.(2d) 104 (O.L.R.B.), refd to. [para. 21].

Rando Drugs Ltd. et al. v. Scott (2007), 229 O.A.C. 1; 284 D.L.R.(4th) 756; 2007 ONCA 553, refd to. [para. 26].

Marques et al. v. Dialex Ltd. et al. (1977), 18 O.R.(2d) 58 (H.C.), refd to. [para. 26].

Brick and Allied Craft Union, Local 5 v. International Union of Bricklayers and Allied Craftworkers, Local 6 (2000), 65 C.L.R.B.R.(2d) 287 (O.L.R.B.), refd to. [para. 26].

Suguitan (Bankrupt), Re, [2006] O.T.C. 98; 2006 CanLII 2415 (Sup. Ct.), refd to. [para. 26].

Ontario Provincial Police Commissioner v. MacDonald et al. (2009), 255 O.A.C. 376; 2009 ONCA 805, refd to. [para. 27].

Wallace v. Canadian Pacific Railway et al. (2013), 446 N.R. 1; 423 Sask.R. 1; 588 W.A.C. 1; 2013 SCC 39, refd to. [para. 28].

Wallace v. McKercher LLP - see Wallace v. Canadian Pacific Railway et al.

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73; 2002 SCC 70, refd to. [para. 28].

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; 2002 SCC 11, refd to. [para. 41].

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

Amalgamated Transit Union, Local 113 v. Labour Relations Board (Ont.) et al. (2007), 233 O.A.C. 14; 88 O.R.(3d) 361 (Div. Ct.), refd to. [para. 54].

Labourers' International Union of North America v. Westendorp Demolition (2011), O.L.R.D. No. 3803 (O.L.R.B.), refd to. [para. 54].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 57].

Counsel:

Paul J.J. Cavalluzzo and Elichai Shaffir, for the appellant, Labourers International Union of North America;

Ian J. Roland and Debra Newell, for the appellant, Universal Workers Union - Labourers International Union of North America Local 183;

Tim Gleason and Sean Dewart, for the respondents, Durval Terceira, Jaime Melo, Michael O'Brien, Gaetano Strazzanti and Cesar Daniel Avero;

Leonard Marvy, for the Ontario Labour Relations Board;

Sara Blake and Kisha Chatterjee, for the intervener, the Attorney General for Ontario.

This appeal was heard on September 11, 2014, before Feldman, Blair and Pepall, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court, by Pepall, J.A., on November 26, 2014.