COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Refrigeration and Air Conditioning Contractors Association v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787, 2016 ONCA 460

DATE: 20160610

DOCKET: C61021

Feldman, Gillese and Brown JJ.A.

BETWEEN

The Ontario Refrigeration and Air Conditioning Contractors Association

Applicant (Respondent)

and

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 787 and Norm Jesin

Respondents (Appellant)

Ronald Lebi, for the appellant

Richard J. Charney and Pamela Hofman, for the respondent

Heard: March 24, 2016

On appeal from the order of the Divisional Court (Justices Sidney N. Lederman, Harriet E. Sachs and Thomas R. Lederer), dated March 19, 2015, with reasons reported at 2015 ONSC 1121, quashing in part the arbitration award of Arbitrator Norm Jesin, dated March 31, 2014, with reasons reported at 2014 CanLII 14205.

Gillese J.A.:

[1]          After a series of rolling strikes interfered with residential construction in the greater Toronto area (the “GTA”) in the late 1990’s, the Ontario legislature enacted a package of amendments to the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “Act”)[1].  The amendments, contained in ss. 150.1 to 150.4 of the Act, limit the ability of those operating in the residential sector of the construction industry in the GTA to conduct strikes or lockouts. They also offer the parties to a collective bargaining dispute, in that sector and geographical area, the right to have their dispute determined by an interest arbitrator appointed by the Minister of Labour (the “Minister”).

[2]          This appeal considers the scope of jurisdiction of such an arbitrator.  Specifically, is the arbitrator’s jurisdiction limited to making an award for the GTA alone or can the award be province-wide in scope?  

OVERVIEW

[3]          This appeal arises from a collective bargaining dispute between the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787 (the “Union”) and the Ontario Refrigeration and Air Conditioning Contractors Association (“ORAC”). 

[4]          The Union represents all air conditioning, refrigeration and maintenance mechanics employed in the residential construction sector in Ontario. Since 2005, ORAC has been the accredited bargaining agent for all employers in the residential sector of the construction industry in Ontario in contractual relations with the Union.

[5]          ORAC and the Union have a long-standing bargaining relationship. They have successfully negotiated several province-wide collective agreements, the most recent of which began in 2010 and expired on April 30, 2013.

[6]          The parties engaged in collective bargaining but failed to reach a new agreement. While they agreed on many terms, including the continuation of a province-wide bargaining unit, they were unable to agree on changes to the wage and benefits packages for employees.

[7]          The Union gave notice, pursuant to s. 150.4 of the Act, that it required the matters in dispute between them to be decided by arbitration.  The Minister then appointed an arbitrator pursuant to s. 150.4(7) of the Act.

[8]          ORAC and the Union disagreed about the scope of the arbitrator’s jurisdiction.

[9]          ORAC took the position that the arbitrator’s jurisdiction was restricted to the geographic areas in and around Toronto referred to in s. 150.1(1)[2]. The s. 150.1(1) area approximates that of the GTA. For convenience, I will refer to the s. 150.1(1) area as the GTA. The Union’s position was that the arbitrator had the power to make a province-wide award.

[10]       In his award dated March 31, 2014 (the “Award”), the arbitrator determined that he had the power to make a renewal agreement that would apply province-wide. On the merits, he concluded that the renewal agreement would consist of the prior collective agreement, as amended by the terms that the parties had agreed on, and the Union’s proposed wage increases.   

[11]       ORAC brought a judicial review application to the Divisional Court in which it challenged only the arbitrator’s determination of the scope of his jurisdiction.

[12]       The Divisional Court concluded that the arbitrator’s jurisdiction was limited to the GTA. By order dated March 19, 2015 (the “Order”), it quashed the Award in respect of the non-GTA.

[13]       The Union appeals.

[14]       In my view, the Divisional Court erred. I would allow the appeal and restore the Award.

THE RELEVANT LEGISLATIVE PROVISIONS

[15]       Sections 150.1 to 150.4 of the Act are set out in full in Appendix A to these reasons. For ease of reference, the most salient of those provisions are set out below.

150.1 (1) Sections 150.2, 150.3 and 150.4 apply only with respect to the geographic areas of jurisdiction of the following municipalities:

1. The City of Toronto.

2. The Regional Municipality of Halton.

3. The Regional Municipality of Peel.

4. The Regional Municipality of York.

5. The Regional Municipality of Durham.

6. The Corporation of the County of Simcoe.

(2) In sections 150.2, 150.3 and 150.4,

“residential work” means work performed in the residential sector of the construction industry.

150.2 (1) A collective agreement between an employer or employers’ organization and a trade union or council of trade unions that applies with respect to residential work shall be deemed to expire with respect to residential work on April 30, 2007 if,

(a) it is in effect on May 1, 2005, or it comes into effect after May 1, 2005 but before April 30, 2007; and

(b) it is to expire on a date other than April 30, 2007.

(2) A first collective agreement that applies with respect to residential work and comes into effect on or after April 30, 2007 shall be deemed to expire with respect to residential work on the next April 30, calculated triennially from April 30, 2007.

(3) Every collective agreement that is a renewal or replacement of a collective agreement to which subsection (1) or (2) applies, or of a collective agreement to which this subsection applies, shall be deemed to expire with respect to residential work on the next April 30, calculated triennially from April 30, 2010.

[…]

(7) Nothing in this section shall be interpreted to affect the validity of a collective agreement to which this section applies with respect to work other than residential work performed in the geographic areas described in subsection 150.1 (1).

150.3 (1) No individual represented by a trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall commence or continue a strike after June 15 of that year with respect to residential work.

(2) No trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall call or authorize a strike or the continuation of a strike after June 15 of that year with respect to residential work.

(3) No employer or employers’ organization that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall commence or continue a lock-out after June 15 of that year with respect to residential work.

(4) No employer or employers’ organization that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall call or authorize a lock-out or the continuation of a lock-out after June 15 of that year with respect to residential work.

150.4 (1) Subject to subsection (2), either party to negotiations for the renewal or replacement of a collective agreement that expires on April 30 in a given year according to section 150.2 may, by notice given in accordance with subsection (4), require that the matters in dispute between them be decided by arbitration.

[…]

(4) The notice shall be given in writing to the other party and to the Minister.

[…]

(7) Upon receiving a request under clause (5) (a), the Minister shall appoint an arbitrator.

[16]       The arbitration framework under s. 150.4 is supported by O. Reg. 522/05 (the “Regulation”), which applies where an arbitrator has been appointed and the parties do not agree upon the method of arbitration. The Regulation is set out in full in Appendix B to these reasons.

[17]       For the purposes of this appeal, s. 3(1) of the Regulation is the most significant. It reads as follows:

3. (1) The arbitrator has the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement, including whether a matter in dispute is a monetary item.

BACKGROUND IN BRIEF

[18]       ORAC and the Union have negotiated several collective agreements on a province-wide basis. The agreements have always expired on the dates mandated by s. 150.2 of the Act. The most recent collective agreement, which began in 2010, expired on April 30, 2013.

[19]       Although the parties engaged in several months of collective bargaining, they failed to reach a new agreement. They were unable to agree on changes to the wage and benefits packages for employees, whose rates of pay depend upon their job classification and the geographic location or “zone” in which the work is performed. During bargaining, the Union sought an approximate 3.3% increase to the employee wage package. ORAC, on the other hand, proposed a small basic wage increase but sought major monetary concessions, including a restructuring of benefits and pension entitlements that would result in a significant reduction to the overall wage package.

[20]       One term on which the parties did agree was the continuation of a province-wide bargaining unit.

[21]       On March 3, 2014, the Union gave notice under s. 150.4 of the Act that it required that the matters in dispute between them be decided by arbitration. While ORAC did not object to the appointment of the arbitrator, it communicated to the Ministry of Labour its view that the arbitration could pertain only to the GTA and no other location in Ontario.

[22]       On March 14, pursuant to s. 150.4(7) of the Act, the Minister’s delegate appointed Mr. Norm Jesin to act as arbitrator. Arbitrator Jesin is an experienced labour arbitrator and a Vice-Chair of the Ontario Labour Relations Board (the “OLRB”).

[23]       Before the arbitrator, ORAC and the Union argued both the issue of his jurisdiction and the merits of the matters in dispute.

[24]       On the issue of jurisdiction, ORAC maintained that the arbitrator had jurisdiction to make an award only for the GTA whereas the Union maintained that he was empowered to make an award that renewed the previous collective agreement, which was province-wide in scope. 

THE AWARD

          Jurisdiction

[25]       The arbitrator set out the relevant legislative provisions and made the following observations about them. They mandate that residential construction agreements in the GTA expire every third April 30, commencing in 2007; the parties to collective agreements governed by the relevant provisions may not conduct strikes or lockouts beyond June 15 in a year in which an agreement expires; and, a collective agreement to which the legislative provisions apply may only be settled by agreement or, pursuant to s. 150.4, by arbitration.

[26]       The arbitrator noted that there were no prior decisions in which the issue of the scope of his jurisdiction had been decided.

[27]       After setting out the parties’ positions on the matter of his jurisdiction, the arbitrator observed that:

a.    he had to consider the applicability of ss. 150.1 to 150.4 to a collective agreement for residential construction that covered areas both within and outside the geographic areas described in s. 150.1;

b.    since 2005, ORAC has operated under an accreditation order in which it is the accredited bargaining agent for a province-wide bargaining unit;

c.    ORAC has been bargaining with the Union under that authority ever since, during which time the parties have reached collective agreements on a province-wide basis;

d.    prior to the arbitration, the parties agreed that the bargaining unit in the renewal agreement would remain province-wide, which would be inconsistent with an award for only the GTA;

e.    issuing an award for only the GTA would result in a collective agreement being in place for the GTA only, which, in ORAC’s view, would mean that outside of the GTA it could initiate a lockout and the Union could initiate a strike; and

f.     an award for the GTA only would essentially divide the bargaining unit in two, contrary to the practice and agreement of the parties to maintain a province-wide unit.

[28]       The arbitrator said that he was troubled by the notion of dividing the bargaining unit and said he would not do that unless he found “clear intent in the language of the Act that this be the result”.

[29]       ORAC had relied on Four Valleys Excavating and Grading Ltd., [2013] O.L.R.D. No. 2251, for the proposition that the arbitrator could divide the bargaining unit in the way that it proposed. The arbitrator rejected this submission, noting that Four Valleys was a termination case and it has “always been within the [OLRB’s] discretion and ability to carve out a portion of a bargaining unit where appropriate in a termination case.” 

[30]       ORAC had also relied on Kone Inc., [2013] O.L.R.D. 2372 and 2523. The arbitrator found neither decision to be helpful, noting that they were consent decisions and not adjudicative determinations of the OLRB.

[31]       The arbitrator pointed to the language of s. 150.4(1), which required him to decide the “matters in dispute between [the parties]” for the renewal or replacement of a collective agreement that expires on April 30 in a given year, according to s. 150.2.  In the circumstances, he did not view the legislation as empowering him to arbitrate a renewal of only part of the collective agreement and effectively divide the longstanding bargaining unit into two, against the stated wishes of the parties.

[32]       He concluded that, in these circumstances, he was empowered and required to arbitrate a renewal of the entire agreement on a province-wide bargaining unit. He then proceeded to consider the merits of the dispute.

Merits

[33]       The arbitrator noted that the main issues in dispute were monetary, revolving around the amount and structure of the wage package. The arbitrator found that the Union’s proposed approximately 3.3% increase to the wage package over the life of the collective agreement was “well within” the norm of comparator settlements in the construction industry.

[34]       ORAC proposed a small increase to the basic wage package in Toronto and a major restructuring of the benefits and pension parts of the wage package, which would result in significant reductions to the overall wage package.  The arbitrator described the monetary concessions that ORAC sought as “significant” and opined that interest arbitration is not generally the forum to make significant breakthroughs for either party. He also found that the comparators advanced by the Union were supportive of the “more modest gains” sought by the Union.

[35]       He concluded that the renewal collective agreement would consist of the prior collective agreement, as amended by the terms agreed on by the parties, and the Union’s proposed wage increases. He denied ORAC’s proposed amendments.

THE ORDER UNDER APPEAL

[36]       The Divisional Court did not conduct a standard of review analysis. It concluded that the arbitrator’s decision on jurisdiction could not stand because it was neither correct nor reasonable. It reasoned as follows.

[37]       Sections 150.1 to 150.4 use the clearest of language to limit the arbitrator’s jurisdiction to the geographic territory set out in s. 150.1, regardless of the geographic scope of the prior collective agreement.

[38]       Section 3 of the Regulation cannot override s. 150.1 of the Act. Although s. 3 of the Regulation empowered the arbitrator to determine all matters that he considered necessary to conclude a renewal collective agreement, that power was restricted by the geographic constraints placed upon it by s. 150.1 of the Act. The scope of the Regulation is constrained by its enabling legislation.

[39]       On a plain reading, s. 150.2 addresses only those collective agreements whose geographic scope is entirely within the GTA. Therefore, the arbitrator could arbitrate only that part of the collective agreement to which s. 150.2 applies, namely, residential construction in the GTA.

[40]       It is permissible for there to exist a collective agreement to determine terms and conditions of employment for the GTA within a broader provincial bargaining unit. The language of the prior collective agreement expressly contemplated that the province-wide bargaining unit be divided into geographic zones within the province. Thus, the fact that the arbitrator could not assume jurisdiction over the non-GTA would not necessarily result in the creation of two separate collective agreements.

[41]       The immediate impact – and possible long term effect – of the arbitrator’s limited jurisdiction would be to leave that part of the bargaining unit located within the GTA with a collective agreement and the remaining members without one. While this was not the most desirable result, it was the result mandated by the legislation.

[42]       The rights to strike and lockout are “corner stones of the institution of labour relations in Canada”. It would take the clearest of statutory language to allow an arbitrator to interfere with free collective bargaining and the parties’ rights to strike or lockout outside the GTA by imposing a binding arbitration order.

THE ISSUES

[43]       This appeal raises two issues:   

1. What is the appropriate standard of review of the arbitrator’s determination of the scope of his jurisdiction?

2. Did the Divisional Court err in setting aside the arbitrator’s determination of the scope of his jurisdiction?

ISSUE #1     STANDARD OF REVIEW

[44]       The Divisional Court did not decide what standard of review applied to the arbitrator’s determination of the scope of his jurisdiction. Instead, it conducted its own interpretation of ss. 150.1 to 150.4 of the Act, found that those provisions used “the clearest of language” to limit the arbitrator’s jurisdiction to the geographic territory of the GTA, and concluded that the arbitrator’s determination was neither correct nor reasonable. It offered no reasons for its view that the determination was unreasonable.  

[45]       In my view, the Divisional Court erred in its approach to this matter. The Divisional Court ought to have begun its analysis by deciding what standard of review applied to the arbitrator’s determination: Dr. Q v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 43. It thus falls to this court to determine what standard of review applies to the arbitrator’s determination of the scope of his jurisdiction.  

[46]       In my view, based on the recent case of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, reasonableness is the applicable standard of review.  In Alberta Teachers, Rothstein J., writing for the majority, makes it clear that reasonableness is the presumptive standard of review.  Further, the present case does not fall within any of the exceptional situations to which the correctness standard of review applies.

Reasonableness is the Presumptive Standard of Review

[47]       Following Alberta Teachers, there can be no doubt that reasonableness is the presumptive standard of review for decisions of specialized administrative tribunals and decision-makers interpreting or applying their home or enabling statutes.  

[48]       At para. 34 of Alberta Teachers, Rothstein J. states that “unless the situation is exceptional”, the interpretation by an administrative decision-maker of its own statute or statutes closely connected to its function should be presumed to be a question of statutory interpretation subject to deference on judicial review.  And, at para. 39, he reinforces this, stating that when considering a decision of an administrative tribunal that interprets or applies its home statute, it should be presumed that the appropriate standard of review is reasonableness.  

Not an Exceptional Situation

[49]       At para. 34 of Alberta Teachers, Rothstein J. acknowledges that there are “exceptional situations” in which the correctness standard applies. The reference to exceptional situations comes from para. 30 of his reasons. There, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, he states that the principle of deference applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard of review continues to apply: constitutional questions; questions of law of central importance to the legal system as a whole and that are outside the adjudicator’s expertise; questions regarding the jurisdictional lines between two or more competing specialized tribunals; and true questions of jurisdiction.

[50]       ORAC submits that the standard of correctness applies to the arbitrator’s determination in this case because it raises a true question of jurisdiction, is of central importance to the legal system, raises a constitutional issue, and falls outside the arbitrator’s specialised expertise.

[51]       I do not agree.  

[52]       I begin by considering ORAC’s argument that the arbitrator’s determination raises a true question of jurisdiction. I accept that the determination might arguably fall within the meaning of a true question of jurisdiction, as described in Dunsmuir. However, following Alberta Teachers, that argument must fail.  

[53]       In Dunsmuir, at para. 59, the Court opined that a true question of jurisdiction arises

where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will found to be ultra vires or to constitute a wrongful decline of jurisdiction.

[54]       However, at paras. 33-42 of Alberta Teachers, the Court expressly departs from the Dunsmuir approach to true questions of jurisdiction. It notes that the category of such questions is “narrow indeed” and that, since Dunsmuir, the Court has not identified a single true question of jurisdiction (para. 33). At para. 34, the Court queries whether the category of true questions of jurisdiction continues to exist and stresses the need for judicial deference:

The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review… [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review. [Emphasis added.]

[55]       In this case, the arbitrator was required to determine whether the statutory grant of power gave him the authority to decide the matters in dispute between the parties only for the GTA or for the entire bargaining unit. In making that determination, it is accurate to say that the arbitrator decided the scope of his jurisdiction. However, in light of Alberta Teachers, that does not mean that the arbitrator decided a true question of jurisdiction.

[56]       Compare the arbitrator’s determination with the emphasized words in the quotation from para. 34 of Alberta Teachers, above. The arbitrator was interpreting the Act and the Regulation, which were his home legislation and closely connected to the function he was to perform. The interpretation of the relevant legislative provisions, by the interest arbitrator, was closely connected to the integrity of the collective bargaining process, a matter lying at the heart of his expertise, and to the function he was to perform, namely, to decide the matters in dispute between the parties and conclude a new collective agreement.

[57]       The question of jurisdiction was also the type of legal question which he, an experienced labour arbitrator, was particularly well-equipped to address. It was not, as ORAC contends, a question that fell outside of the arbitrator’s specialised expertise.

[58]       The result, as dictated by para. 34 of Alberta Teachers, is that the arbitrator’s determination was not a true question of jurisdiction and it is owed deference.  

[59]       Further, I do not accept ORAC’s submission that the present case raises a question of central importance to the legal system as a whole. The issue in this case is the interpretation of specific provisions in a specialized statute by an adjudicator specially appointed to resolve issues arising between parties covered by the statute. The question raised is a narrow one, particular to Ontario’s labour relations regime, and applies only to a limited number of parties within that regime.

[60]       Finally, I see nothing in the suggestion that because the right to strike has constitutional status, the arbitrator’s determination raises a constitutional issue.

Conclusion on Issue #1

[61]       The arbitrator’s role was to use his expertise when interpreting the relevant legislative provisions within the context of the labour relations dispute that he was to decide. His determination of the scope of his jurisdiction represented the informed expression of his labour relations judgment.

[62]       Accordingly, in the present case, the presumptive standard of review of reasonableness applies and deference is owed to that determination. 

ISSUE #2 DID THE DIVISIONAL COURT ERR IN SETTING ASIDE THE ARBITRATOR’S DETERMINATION?

[63]       As previously noted, the Divisional Court did not review the arbitrator’s determination of the scope of his jurisdiction on a reasonableness standard. Instead, it conducted its own interpretation of ss. 150.1 to 150.4 of the Act. In so doing, the Divisional Court erred. As the Supreme Court explained in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 50-51:

[W]hen deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been…. The standard of reasonableness does not imply that a decision maker is merely afforded a “margin of error” around what the court believes is the correct result.

Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness…. Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable.  

[64]       The arbitrator reasoned that while a labour dispute in the GTA triggered his jurisdiction pursuant to s. 150.1, that provision did not limit the scope of his jurisdiction to the GTA. He determined that he had the jurisdiction to make an award that resulted in a renewal collective agreement which was province-wide in scope and, therefore, would not fracture the pre-existing bargaining structure. 

[65]       That determination is defensible both in respect of the law and the facts of this case. It is, therefore, reasonable and should be restored.

The Reasonableness Test

[66]       On a reasonableness review, a court is charged with evaluating the “justification, transparency and intelligibility” of the arbitrator’s reasoning, and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, at para. 47.

Application of the Test

[67]       In determining the scope of his jurisdiction, the arbitrator considered the relevant legislative provisions within the factual context in which the dispute arose, which included the labour relations implications of declining jurisdiction over part of the dispute between the parties.  

[68]       In terms of the legislative provisions, the arbitrator recognized that the legislative purpose of the amendments was to limit residential construction delays in the GTA. He noted that the provisions mandate the expiry of collective agreements on certain dates (s. 150.2) and preclude parties from calling, commencing or continuing strikes or lockouts after June 15 in the year of expiry (s. 150.3). He also noted that where a collective bargaining dispute arises in the residential sector of the construction industry in the GTA, the dispute can be settled only by agreement of the parties or, pursuant to s. 150.4, by arbitration. He further noted that the statutory scheme gave him the power to determine “all matters in dispute” and the task of making an award that would result in a “new collective agreement”.

[69]       The arbitrator considered the question of the scope of his jurisdiction within the broader context in which the dispute had arisen. His task was to resolve a collective bargaining dispute between a provincial association of contractors and a construction trade union. The parties’ province-wide collective agreement had expired and the parties had been unable to agree on certain terms of the renewal agreement.

[70]       Prior to this dispute, there had been a single collective agreement with a single employer bargaining agent and a single employee unit. And, prior to the arbitrator’s appointment, the parties had agreed to bargain, as they previously had, on a province-wide basis.

[71]       The arbitrator recognized that if his award were limited to the GTA, he “would essentially divide the collective agreement into two bargaining units with two ultimate agreements, contrary to the practice and agreement of the parties to maintain one province-wide unit.”

[72]       The arbitrator was entitled to consider that limiting his jurisdiction to the geographic territory of the GTA would leave him powerless to determine the full scope of the parties’ collective bargaining dispute. He was also entitled to consider that such a limit on his jurisdiction would split the bargaining unit in two and, ultimately, lead to two collective agreements. This would fracture the parties’ bargaining structure and the bargaining unit established by the OLRB under the Act. 

Conclusion on Issue #2

[73]       This case raised sensitive labour relations issues. The determination at the heart of the judicial review application was that of an experienced labour arbitrator, appointed by the Minister, to resolve a collective bargaining dispute between a provincial association of contractors and a construction trade union. The parties’ province-wide collective agreement had expired and the parties had been unable to agree on certain terms of the renewal agreement. The arbitrator was required to interpret and apply ss. 150.1 to 150.4 of the Act, as well as the Regulation, to the facts as he found them in order to resolve the dispute and produce a collective agreement.

[74]       The arbitrator determined that the relevant legislative provisions empowered him to make an award that would not fracture the pre-existing bargaining structure but, instead, would produce a single province-wide collective agreement. In so doing, he concluded that while a dispute within the residential construction industry in the GTA triggered his jurisdiction, it did not limit the scope of his jurisdiction.

[75]       The arbitrator’s determination, evaluated on the basis of justification, transparency and intelligibility, reveals a decision that falls within the range of possible, acceptable outcomes. It is defensible in respect of the law and the facts. In short, it is reasonable.

DISPOSITION

[76]       Accordingly, I would allow the appeal, set aside the Order, dismiss the application for judicial review, and restore the Award. I would order costs of the appeal to the appellant in the agreed-on sum of $5,000, all inclusive.

[77]       The appellant is presumptively entitled to costs of the application below. If the parties are unable to agree on that matter, they may make written submissions of a maximum of two pages in length, to be filed with the court no later than 7 days from the date of release of these reasons.

Released: June 10, 2016 (“K.F.”)

“E.E. Gillese J.A.”

“I agree. K. Feldman J.A.”

“I agree. David Brown J.A.”

APPENDIX A

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A

150.1 (1) Sections 150.2, 150.3 and 150.4 apply only with respect to the geographic areas of jurisdiction of the following municipalities:

1. The City of Toronto.

2. The Regional Municipality of Halton.

3. The Regional Municipality of Peel.

4. The Regional Municipality of York.

5. The Regional Municipality of Durham.

6. The Corporation of the County of Simcoe.

(2) In sections 150.2, 150.3 and 150.4,

“residential work” means work performed in the residential sector of the construction industry.

150.2 (1) A collective agreement between an employer or employers’ organization and a trade union or council of trade unions that applies with respect to residential work shall be deemed to expire with respect to residential work on April 30, 2007 if,

(a) it is in effect on May 1, 2005, or it comes into effect after May 1, 2005 but before April 30, 2007; and

(b) it is to expire on a date other than April 30, 2007.

(2) A first collective agreement that applies with respect to residential work and comes into effect on or after April 30, 2007 shall be deemed to expire with respect to residential work on the next April 30, calculated triennially from April 30, 2007.

(3) Every collective agreement that is a renewal or replacement of a collective agreement to which subsection (1) or (2) applies, or of a collective agreement to which this subsection applies, shall be deemed to expire with respect to residential work on the next April 30, calculated triennially from April 30, 2010.

(4) The parties to a collective agreement described in subsection (1), (2) or (3) may not agree to continue the operation of that agreement with respect to residential work beyond the relevant expiry date and any renewal provision in a collective agreement that purports to do so shall be deemed to be void.

(5) A notice of desire to bargain for the renewal or replacement of a collective agreement to which subsection (1), (2) or (3) applies may be given on or after January 1 in the year of expiry.

(6) Subsections (1), (2) and (3) apply even if the collective agreement would have a term of less than one year as a result.

(7) Nothing in this section shall be interpreted to affect the validity of a collective agreement to which this section applies with respect to work other than residential work performed in the geographic areas described in subsection 150.1 (1).

150.3 (1) No individual represented by a trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall commence or continue a strike after June 15 of that year with respect to residential work.

(2) No trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall call or authorize a strike or the continuation of a strike after June 15 of that year with respect to residential work.

(3) No employer or employers’ organization that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall commence or continue a lock-out after June 15 of that year with respect to residential work.

(4) No employer or employers’ organization that is seeking to renew or replace a collective agreement that expires on April 30 in a given year according to section 150.2 shall call or authorize a lock-out or the continuation of a lock-out after June 15 of that year with respect to residential work.

150.4 (1) Subject to subsection (2), either party to negotiations for the renewal or replacement of a collective agreement that expires on April 30 in a given year according to section 150.2 may, by notice given in accordance with subsection (4), require that the matters in dispute between them be decided by arbitration.

(2) A party shall not give notice under subsection (1) until the later of,

(a) the day on which a strike or lock-out would have been legal had it not been for section 150.3; and

(b) June 15 of the year in which the collective agreement that is being renewed or replaced expires.

(3) Despite subsection (2), notice under subsection (1) may be given at any time after April 30 of the relevant year if,

(a) notice of desire to bargain has been given; and

(b) both parties agree that notice may be given under subsection (1).

(4) The notice shall be given in writing to the other party and to the Minister.

(5) If notice is given under subsection (1),

(a) the parties may jointly appoint an arbitrator or either party may request the Minister in writing to appoint an arbitrator;

(b) if subsection (3) applies,

(i) the Minister shall not appoint a conciliation officer, a conciliation board or a mediator, and

(ii) the appointment of any previously appointed conciliation officer, conciliation board or mediator shall be deemed to be terminated; and

(c) subject to subsection (6), all terms and conditions of employment and all rights, privileges and duties that existed under the collective agreement that expired on April 30 of the relevant year shall apply with respect to the employer, the trade union and the employees, as the case may be, during the period beginning on the day on which notice was given and ending on the day,

(i) the collective agreement is renewed or replaced, or

(ii) the right of the trade union to represent the employees is terminated.

(6) The employer and the trade union may agree to alter a term or condition of employment or a right, privilege or duty referred to in clause (5) (c).

(7) Upon receiving a request under clause (5) (a), the Minister shall appoint an arbitrator.

(8) If the arbitrator who is appointed is unable or unwilling to perform his or her duties, a new arbitrator shall be appointed in accordance with subsections (5) and (7).

(9) The appointment of a person as an arbitrator under this section shall be conclusively presumed to have been properly made, and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.

(10) Each party shall pay one-half of the arbitrator’s fees and expenses.

(11) If the parties do not agree on the method of arbitration or the arbitration procedure, the method or procedure, as the case may be, shall be as prescribed by the regulations.

(12) The Arbitration Act, 1991 does not apply to an arbitration under this section.

(13) The Lieutenant Governor in Council may make regulations,

(a) prescribing a method of arbitration, which may be mediation-arbitration, final offer selection or any other method of arbitration;

(b) prescribing an arbitration procedure;

(c) prescribing the powers of an arbitrator;

(d) prescribing a scale of fees and expenses allowable to arbitrators with respect to their duties under this section and limiting or restricting the application of those fees or expenses;

(e) providing a procedure for the review and determination of disputes concerning the fees and expenses charged or claimed by an arbitrator;

(f) governing the filing of schedules of fees and expenses by arbitrators, requiring arbitrators to provide parties with a copy of the schedules upon being appointed and requiring arbitrators to charge fees and expenses in accordance with the filed schedules;

(g) providing for the circumstances under which the jurisdiction of the arbitrator may be limited where the parties have agreed to some of the matters in dispute;

(h) prescribing time limits for the commencement of arbitration proceedings or for the rendering of the arbitrator’s decision and providing for the extension of those time limits;

(i) requiring the parties to prepare and execute documents giving effect to the arbitrator’s decision, requiring the arbitrator to prepare those documents if the parties fail to do so and providing for the deemed execution of the documents if either or both of the parties do not execute them.

APPENDIX B

Arbitration — Residential Sector of the Construction Industry, O. Reg. 522/05

1. This Regulation applies if an arbitrator has been appointed under section 150.4 of the Act and the parties do not agree upon the method of arbitration for the purposes of that section.

2. (1) The arbitrator shall convene the parties to begin the proceeding as soon as possible after being appointed and no later than seven days after that day.

(2) On or before the first day of the proceeding,

(a) the parties shall file with the arbitrator, a joint written statement setting out the matters on which they reached agreement before the arbitrator was appointed; and

(b) if there are monetary items in dispute between the parties, both parties shall file with the arbitrator final written offers on those monetary items.

3. (1) The arbitrator has the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement, including whether a matter in dispute is a monetary item.

(2) The arbitrator remains seized of and may deal with all matters within his or her jurisdiction until the new collective agreement between the parties is in force.

(3) The arbitrator shall try to assist the parties through mediation to settle any matter that he or she considers necessary to conclude the collective agreement.

(4) Subject to this Regulation, the arbitrator has the powers of an arbitrator under subsection 48 (12) of the Act.

(5) The parties may at any time notify the arbitrator in writing as to matters on which they reach agreement after the appointment of the arbitrator.

(6) If the parties execute a new collective agreement before the arbitration is completed, they shall so notify the arbitrator and the arbitration proceedings are terminated when the collective agreement comes into force.

4. (1) The method of arbitration for the monetary items in dispute shall be mediation-final offer selection.

(2) The method of arbitration for the other items in dispute shall be mediation-arbitration.

5. (1) The arbitrator shall make an award with respect to the monetary items in dispute within seven days after the first day of the proceeding.

(2) Subject to subsection (1), the arbitrator shall make his or her award with respect to the remaining items in dispute within 30 days after the first day of the proceeding.

6. (1) Within seven days after the arbitrator has made both awards under section 5, the parties shall prepare and execute documents giving effect to the award and those documents constitute the new collective agreement.

(2) The arbitrator may extend the period specified in subsection (1) but the extended period shall end no later than 30 days after the arbitrator has made both awards.

(3) If the parties do not prepare and execute the documents as required under subsections (1) and (2), the arbitrator shall prepare and give the necessary documents to the parties for execution.

(4) If either party fails to execute the documents within seven days after the arbitrator gives them to the parties, the documents come into force as though they had been executed by the parties and those documents constitute the new collective agreement.