United Food and Commercial Workers International Union et al. v. Rol-Land Farms Ltd. et al., (2008) 235 O.A.C. 172 (DC)

• Judge: Leitch, R.S.J., Greer and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 22, 2008
• Jurisdiction: Ontario
• Citations: (2008), 235 O.A.C. 172 (DC)

UFCW v. Rol-Land Farms Ltd. (2008), 235 O.A.C. 172 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.024

UFCW Canada/United Food and Commercial Workers International Union, Sary Keo, Ban Leng, Pheap Muth and Rith Chor (applicants) v. Rol-Land Farms Limited, Hank Vanderpol and Agricultural, Food and Rural Affairs Tribunal (respondents)

Diane Harold (applicant) v. Rol-Land Farms Limited, Hank Vanderpol and Agricultural, Food and Rural Affairs Tribunal (respondents)

(262/07; 266/07)

Indexed As: United Food and Commercial Workers International Union et al. v. Rol-Land Farms Ltd. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Leitch, R.S.J., Greer and Swinton, JJ.

February 22, 2008.

Summary:

Four mushroom pickers were dismissed. Their union filed an unfair labour complaint with the Agricultural, Food and Rural Affairs Tribunal, alleging that the mushroom pickers had been dismissed for union participation and union activity. The complaint mentioned the name of Harold, an employee who had inquired into incidents involving the mushroom pickers and recommended that they not be dismissed. The Tribunal made rulings adding Harold as a party. The union applied for judicial review, seeking to quash those rulings, and seeking to quash the proceedings before the Tribunal on grounds of reasonable apprehension of bias.

The Ontario Divisional Court allowed the application in part. The rulings adding Harold as a party were quashed. The court rejected the reasonable apprehension of bias argument.

Administrative Law - Topic 9117

Boards and tribunals - Judicial review - Review of interlocutory orders - Four mushroom pickers were dismissed - Their union filed an unfair labour complaint with the Agricultural, Food and Rural Affairs Tribunal, alleging that the mushroom pickers had been dismissed for union participation and union activity - The Tribunal made rulings adding one Harold as a party - The union applied for judicial review, seeking to quash those rulings, and seeking to quash the proceedings before the Tribunal on grounds of reasonable apprehension of bias - The respondents replied that the application was premature since the reasonable apprehension of bias allegation should have been first brought to the Tribunal for consideration, and the issue of party status should not be addressed at this point - The Ontario Divisional Court held that the application was not premature - The issue of party status had been finally determined by the Tribunal - Failure to address this issue here would subject Harold to considerable prejudice - Also, the Tribunal responded to the bias issue in its initial factum in the judicial review proceedings and in the material filed for the hearing - See paragraphs 42 to 49.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - [See Labour Law - Topic 603 ].

Labour Law - Topic 579

Labour relations boards and judicial review - Judicial review - General - Interlocutory orders - [See Administrative Law - Topic 9117 ].

Labour Law - Topic 603

Labour relations boards and judicial review - Judicial review - Jurisdiction - Provincial boards - Acting in excess of jurisdiction - Four mushroom pickers were dismissed - Their union filed an unfair labour complaint with the Agricultural, Food and Rural Affairs Tribunal, alleging that the mushroom pickers had been dismissed for union participation and union activity - The complaint mentioned the name of Harold, an employee who had inquired into incidents involving the mushroom pickers and recommended that they not be dismissed - The Tribunal made rulings adding Harold as a party - The Ontario Divisional Court, applying the standard of correctness, quashed those rulings for excess of jurisdiction given the failure of the Tribunal to consider the evidence and the lack of allegations that Harold personally violated the applicable legislation, the Agricultural Employees Protection Act (Ont.) - See paragraphs 50 to 61.

Labour Law - Topic 606

Labour relations boards and judicial review - Judicial review - Jurisdiction - Provincial boards - Failure to consider relevant evidence - [See Labour Law - Topic 603 ].

Labour Law - Topic 645

Labour relations boards and judicial review - Judicial review - Natural justice - Denial of - Bias - Four mushroom pickers were dismissed - Their union filed an unfair labour complaint with the Agricultural, Food and Rural Affairs Tribunal, alleging that the mushroom pickers had been dismissed for union participation and union activity - The union sought to quash the proceedings on grounds of reasonable apprehension of bias - It alleged that, until she recused herself, counsel for the Tribunal was employed by the Attorney General, who, allegedly, was adverse to the union's interest in previous constitutional challenges to the applicable legislation - The Ontario Divisional Court dismissed the application - The bias argument was moot since counsel had recused herself - Also, the union had waived the bias argument as they raised no objection to counsel's role before the Tribunal - See paragraphs 62 to 72.

Labour Law - Topic 3662

Unions - Unfair labour practices - Practice - Parties - [See Labour Law - Topic 603 ].

Cases Noticed:

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201, refd to. [para. 8].

Fraser et al. v. Ontario (Attorney General), [2006] O.T.C. 5; 79 O.R.(3d) 219 (Sup. Ct.), refd to. [para. 22].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 33].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 39].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 39].

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 11 O.R.(3d) 798 (Div. Ct.), refd to. [para. 43].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483 (C.A.), refd to. [para. 43].

Gage v. Ontario (Attorney General) (1992), 55 O.A.C. 47; 90 D.L.R.(4th) 537 (Div. Ct.), refd to. [para. 43].

Roosma and Weller et al. v. Ford Motor Co. of Canada Ltd. et al. (1988), 29 O.A.C. 84; 66 O.R.(2d) 18 (Div. Ct.), refd to. [para. 43].

Great Atlantic & Pacific Co. of Canada Ltd. v. Ontario (Minister of Citizenship) et al. (1993), 62 O.A.C. 1 (Div. Ct.), refd to. [para. 44].

United Brotherhood of Carpenters and Joiners of America, Local 1030 v. Nepean Roof Truss Ltd., [1988] O.L.R.B. Rep. 61 (L.R.B.), dist. [para. 58].

Hoogendoorn and Green Metal Products and Screening Equipment, Re (1967), 65 D.L.R.(2d) 641 (S.C.C.), refd to. [para. 59].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, consd. [para. 62].

Omineca Enterprises Ltd. v. British Columbia (Minister of Forests) et al. (1993), 37 B.C.A.C. 123; 60 W.A.C. 123 (C.A.), refd to. [para. 66].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 67].

Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board - see Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al.

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2005), 200 O.A.C. 209; 76 O.R.(3d) 321 (C.A.), refd to. [para. 67].

Baker v. Law Society of Upper Canada, [1999] O.A.C. Uned. 7; 42 O.R.(3d) 413 (Div. Ct.), refd to. [para. 71].

Children's Lawyer for Ontario v. Information and Privacy Commissioner (Ont.) - see Children's Lawyer for Ontario v. Goodis et al.

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350; 75 O.R.(3d) 309 (C.A.), refd to. [para. 76].

Statutes Noticed:

Agricultural Employees Protection Act, S.O. 2002, c. 16, sect. 11(3) [para. 17].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada, p. 12:4350 [para. 73].

Jacobs, Laverne A., and Kuttner, Thomas S., Discovering What Tribunals Do: Tribunal Standing Before the Courts (2002), 81 Can. Bar Rev. 616, p. 629 [para. 77].

Counsel:

Chris G. Paliare, for the applicants UFCW Canada/United Food and Commercial Workers International Union, Sary Keo, Ban Leng, Pheap Muth and Rith Chor;

Paul J. Cavalluzzo and Fay Faraday, for the applicant Diane Harold;

Kevin A. Egan, for the respondents, Rol-Land Farms and Hank Vanderpol;

Stephen F. Gleave and Sean Sells, for the respondent Tribunal;

Jack Coop and Fateh A. Salim, for the Attorney General of Ontario.

This application was heard on November 13 and 14, 2007, by Leitch, R.S.J., Greer and Swinton, JJ., of the Ontario Divisional Court. The following decision of the Divisional Court was delivered by Swinton, J., and released on February 22, 2008.