Unlimited Textures Co. (c.o.b. Industrial Platers (Windsor)
†Co.) v. International Union
Unlimited Textures Co. Limited, carrying on business under the
name and style of Industrial Platers (Windsor) Company, a
Division of Unlimited Textures Co. Limited, applicant, and
International Union, United Automobile Aerospace &
Agricultural Implement Workers of America (U.A.W.) and Ontario
Labour Relations Board, respondents
Employees Union Opposition Group of Industrial Platers
(Windsor) Company, a division of Unlimited Textures Co.
Limited, Gerry Beniot, Mary Cartier, John D'Angela, Daniel
Denomme, Donna Iorio, Robert Iorio, Jenny Moellendorf, Foster
Moor, Sandra Moor and Timmy Smith, applicants, and
International Union, United Automobile Aerospace &
Agricultural Implement Workers of America (U.A.W.), Ontario
Labour Relations Board and Unlimited Textures Co. Limited,
 O.J. No. 1333
†Ontario Supreme Court - High Court of Justice
August 22, 1984.
R. Colautti, for the applicant, Unlimited Textures Co. Limited.
Ian Scott, Q.C., and N.V. Dissanayake, for the respondent, Ontario Labour Relations Board.
L.N. Gottheil, for the respondent, International Union.
R.J. Rolls, Q.C., for the applicants, Employers Union et al.
David Lepofsky, for the intervenor, Attorney General.
1 ††††HOLLINGWORTH J.:-- This is an application made by the applicant herein for an interim Order pursuant to section 4 of The Judicial Review Procedure Act, R.S.O. 1980, c. 224, staying the Order of the Ontario Labour Relations Board certifying the respondent Union, pending the bearing by the full Divisional Court of a Motion for judicial review.
2 ††††The decision was rendered by the Ontario Labour Relations Board on the 25th of January, 1984, certifying the said Union.
3 ††††The Board certified the United Automobile Aerospace & Agricultural Implement Workers of America ("U.A.W."), pursuant to clause 7(2) of The Labour Relations Act, R.S.O. 1980, c. 228, as amended and it is common ground that there were 55% of the employees in the bargaining unit as members of the trade union. It would be desirable to cite clause 7(2) in full:
7.-- (2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.
4 ††††It is the contention of the applicant that although they agree that the Board did not have to take a vote and it was permissive only, nevertheless, by not taking a vote under the evidence which was adduced before the Board it was not only an error of law, but such a serious error of law, it went to the matter of jurisdiction and, therefore, it was a jurisdictional error on the part of the Board and also it was a denial of natural justice. It rendered a vote mandatory, notwithstanding the statutory definition of permissiveness. I shall go into that more fully below.
5 ††††Mr. Colautti, representing Unlimited Textures Co. Limited, hereinafter called ("the Company"), based his argument on the fact that by not having a vote the Board did not properly deal with the charges of 'intimidation' and 'forgery' and, consequently, made errors of law which were so grave as to affect its jurisdiction and thus became jurisdictional errors. The argument he made was that as a result thereof there was a failure and denial of natural justice. He based his argument mainly on the authority of Re Baltimore Aircoil and Ontario Labour Relations Board (1981), 130 D.L.R. (3d) 580, a decision of the Ontario Divisional Court consisting of Van Camp, Reid and Eberle JJ.
6 ††††Mr. Rolls, for the dissenting employees, adopted briefly Mr. Colautti's reasoning and added that the Board refused to exercise this jurisdiction; in other words did not exercise its discretion judicially. He said that there was an infringement of s. 2 of the Constitution Act 1982 Part I, which reads as follows:
(2) Every one has the following fundamental ...
(d) freedom of association ...
It was argued that the test was not a strong prima facie case but a serious question to be tried (viz. the Atlantic Pizza case) and that irreparable harm would be caused to the applicant if a stay were not granted and that the balance of convenience was in their favour.
7 ††††Mr. Gottheil, for the U.A.W., argued that the test here was the applicant did not prove a strong prima facie case which was capable of rendering nugatory jurisdictional error, that neither the company nor the dissenting group would suffer irreparable harm, but that the Union would and he quoted from the decision of Osler J. in Wells Fargo Armcar Inc. v. Ontario Labour Relations Board et al. (1981), 34 O.R. (2d) 99. The balance of convenience, which is a third test in an injunction or stay, did not favour either, he urged.
8 ††††Mr. Scott, for the Ontario Labour Relations Board, says I should not entertain the application under s. 4 and that the applicant should have proceeded under s. 6(2), particularly as they espoused the emergency aspects of the application. He argued on the merits that the Board's decision was impeccable, the Union had engineered a strong prima facie case and positively no jurisdictional error upon which the Board could be impeached. There was no error of law which was sufficiently grave to constitute a jurisdictional error that under judicial review and the Divisional Court had no power to upset the Board's decision. He noted that to preserve the status quo would be almost impossible and particularly within labour relations, justice delayed was justice denied; really, the purpose of the applicant, he said, was to delay the matter of collective bargaining by means of a stay. He stated that only in the clearest cases should the court intervene.
9 ††††The application for judicial review of the Ontario Labour Relations Board decision has been made and although neither Record gives me the date of the said application, I take it the application was made under s. 2 of The Judicial Review Procedure Act, R.S.O. 1980, c. 224, and amendments thereto. However, this notice of motion was brought under s. 4 of The Judicial Review Procedure Act for a stay on the 7th of February, 1984, and has been made returnable before me Wednesday, July 25, 1984. There are two matters under The Judicial Review Procedure Act dealing with interim applications and they are sections 4 and 6(2). Section 4 reads as follows:
4. On an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application.
Section 6(2) reads:
6.--(2) An application for judicial review may be made to the High Court with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
10 ††††In other words, these are both matters dealing with interim orders but, clearly, a matter of great urgency should be brought under s. 6(2) which has not been done in the present case.
11 ††††Mr. Rolls, for the dissidents, says that I have jurisdiction to hear this matter under the authority of Re Dylex Ltd. & Almagamation Clothing & Textile Workers Union Toronto Joint Board et al., found in 17 O.R. (2d) 448, a 1977 decision of Lerner J. It is not clear from reading the decision under what section of The Judicial Review Procedure Act the applicants brought their application, but Lerner J. rejected the contention that he could not give a stay under s. 4 and granted a stay. Later unreported decisions of Saunders J. in Thames Steel Construction Limited & Labourers International Union of North America et al., dated October 21, 1980, was a decision in which Saunders J. refused to grant a stay under s. 4 of The Judicial Review Procedure Act, p. 3.:
It should be noted that it was open to the applicant to request judicial review under s. 6(2) of the Judicial Review Procedure Act with the applicant for interim relief as an alternative remedy. It has not chosen to do so which is another reason for not exercising of the discretion of the Act in its favour.
12 ††††Then, again, in the case of the unreported decision of the M»tis Non-Status Indian Association v. Ontario Public Service Relations Board, dated November 17, 1980, Trainor J. refused a stay under s. 4 and came to the same conclusion. It seems to me that s. 4 is clearly worded:
On an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application.
It is noted that in both the M»tis and Thames Steel Construction Limited cases both High Court Judges were sitting as Divisional Court Judges and, therefore, quite properly dealt with s. 4. In Re Dylex Ltd. Lerner J. was sitting as a High Court Justice and not as a Divisional Court Justice and it seems to me with the greatest of deference that he had to act under s. 6(2) after making a finding that the matter was of some urgency and would be heard by a High Court judge. It seems to me that where an application is brought before me as a High Court Judge under ss. 4, I have no jurisdiction to deal with the matter on an interim basis and for that reason the application must be dismissed.
13 ††††However, if I am wrong, it is incumbent upon me to look into the nature of the matter using injunctive or stay procedures sufficiently to determine whether or not the learned Ontario Labour Relations Board has made a jurisdictional error or has denied natural justice to the applicant and, thus, have determined a strong prima facie case which, along with the matter of irreparable damage and the balance of convenience, could upset the decision of the Board and enable me to direct a stay. I am not of the opinion, upon reviewing the evidence before me and hearing the argument of the applicant's counsel, that a prima facie case has been made out by the applicant; the Board reviewed very carefully the allegations of coercion and forgery and made certain findings of fact which I am persuaded were justified on the evidence and, indeed, I felt the Board in its reasons exercised its discretion after setting out the evidence in some detail and exercised its discretion judicially. It is quite different from the Baltimore case, supra, where the Court found that the Board refusing to inquire into the vote made a jurisdictional error, but in this case the Board exhaustively went into the vote and made its determination, as I say, judicially.
14 ††††I should refer to the decision of Robins J. in International Woodworkers of America v. Patchogue Plymouth Hawkesbury Mills (1976), 14 O.R. (2d) 118 at 121 where the learned Justice stated:
As a matter of practice petitioners in the field of labour law in Ontario have not generally sought to enforce arbitration board decisions while judicial proceedings are pending.
That is readily distinguishable from the present case which consisted of certification proceedings which gives the labour Union the right to entertain collective bargaining, and is quite dissimilar from an arbitration board ruling. In that connection it appears to be apposite to quote from Osler J. in the Wells Fargo case. He states at p. 103:
It seems to me that the interests of the employer are many and the question of labour relations is only one of those with which we must deal. The interests of the respondent union lies only in representing the employees and its relationship with its own members and constituents can hardly be unaffected by the frustration that would result from an order staying the effect of the board's certificate and it's for those reasons ... it does not seem to me appropriate to make such an order.
15 ††††I have already quoted Estey J.A. that "labour relations delayed are labour relations denied and defeated" in the Ottawa Journal case and, finally, I will report the clause of Laskin J.A. found in Regina v. Ontario Labour Relations Board ex parte Nick Masney Hotels Ltd. (1970), 3 O.R. 461 at 465, per Laskin J.A.:
The Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract where the situation is fairly well frozen when a tort or a breach of contract has occurred. Expedition is important to a union to employees and to an employer since the certification is merely the first step in an often laborious collective bargaining process.
16 ††††For all these reasons I fail to find that the applicant made out a strong prima facie case and, therefore, it is not necessary for me to consider the matter of irreparable damages or the balance of convenience, but I will say that I do not find that the damages would be irreparable for the applicant and I find that as far as the balance of convenience, emphasizing Osler J.'s reasons in the Wells Fargo case, I feel that the balance of convenience would be in favour of the respondents. As regards the Constitutional argument about s. 2 of the Charter of Rights, I find that it has no merit and I can do no better than quote the words of Kroft J. in Re Prime et al. v. Manitoba Labour Relations Board et al., a 1983 case found in 3 D.L.R. (4th) 74 at p. 83, where the learned judge states as follows:
As to the fundamental freedom of association I need only say that there is nothing in the Act for the decision of the Board which forces these employees to join or to refrain from joining a union. They have not been prevented from associating as they please. There has bean no limitation of this fundamental freedom. This is not a case where a resort to the trier or prevents the Board from exercising its statutory powers.
17 ††††Therefore, for these reasons also I dismiss the application and will hear submissions concerning costs if counsel prefer. I have heard no arguments but my inclination, unless counsel feel otherwise, is to say that the costs in this application should be dealt with by the Divisional Court.