Indexed as:

Colautti Construction Ltd. v. International Union of Operating

Engineers, Local 793

Between

Colautti Construction Ltd., applicant, and

International Union of Operating Engineers, Local 793,

Employees Association of Colautti Construction Ltd. and The

Ontario Labour Relations Board, respondents

And between

Employees Association of Colautti Construction Ltd.,

applicant, and

International Union of Operating Engineers, Local 793,

Colautti Construction Ltd. and The Ontario Labour Relations

Board, respondents

[1985] O.J. No. 1356

Ontario Supreme Court - High Court of Justice

Divisional Court

Anderson J.

Heard: November 15 and 18, 1985.

Oral judgment: November 18, 1985.

Reasons: November 22, 1985.

(14 pp.)

Counsel:

R.G. Colautti, for the Colautti Construction Ltd.

F. Watson, for Employees Association of Colautti Construction Ltd.

I.M. Minsky, Q.C., for International Union of Operating Engineers, Local 793.

S.T. Goudge, Q.C., for Ontario Labour Relations Board.

1 ANDERSON J. (orally):-- There are before me two applications, each for an order pursuant to s. 4 of the Judicial Review Procedure Act, staying decisions of the Ontario Labour Relations Board, which I shall refer to as the Board, and certificates issued pursuant to those decisions, certifying the International Union of Operating Engineers, Local 793, which I shall refer to as the Union, as the bargaining agent for certain employees of Colautti Constructions Ltd., which I shall call Colautti. The stay is sought pending hearing of applications for judicial review pertaining to those decisions and certificates of the Board. It is not necessary to review in detail the relief sought on those applications. It is sufficient for present purposes to say that the Association of Colautti Construction Ltd., which I shall call the Employees Association and Colautti seek to quash the decisions and certificates of the Board.

2 The sequence of events which gives rise to the proceedings before me commenced in June 1984 when the Union filed an application for certification. Pursuant to its usual procedure, the Board forwarded to the employer Colautti, a notice to employees of the Association's application for certification. This document advised employees of the pending application for certification, the scheduled hearing date and the manner in which representations were to be made.

3 On July 4, 1984, counsel for certain of the employees of Colautti sent to the Board a petition expressing their wish not to be represented by the Union. As a result of that statement, and other matters raised by Colautti in its reply, the Board scheduled a hearing in Ottawa on July 30, 1984. The parties were notified and were represented before the Board. There was some disagreement between the parties concerning the list of employees and as a result, the Board authorized a Board officer to enquire into and report upon the list of employees filed and the composition of the bargaining unit.

4 Prior to that officer submitting his report, the Union sought leave to withdraw the application and in the result, on September 5, 1984, an order was made by the Board dismissing it. The Union, on the preceding day, had launched a second application for certification.

5 In September, correspondence and documents were sent forward by counsel for employees of Colautti, and in particular, an application for certification as an intervener was sent forward. The covering letter indicated that it was enclosing the original applications for membership in the employees' association, numbering 39 in all.

6 Running more or less contemporaneously with the events which I have just outlined, employees of Colautti had organized themselves into the Association.

7 Counsel for the Association had prepared membership forms which were to be dated and executed by Colautti employees who wished to apply for membership in the Association. The forms were designed to be dated, signed and witnessed and at the same time, each Colautti employee was to pay a membership fee of $1.00. The form had two halves, one half of which was intended to be retained by the Association member and the other half was to be returned to and kept by the Association.

8 While it would appear that the forms were executed as had been contemplated, by inadvertence there was forwarded instead of the portion of the form which comprises expressly an application for membership, only that portion of the form recording the receipt the for $1.00 fee which had been paid and it is really largely out of that event that the matters which have been discussed before me came to be in issue.

9 In the middle of November 1984, a Board hearing was held with respect to the application for certification submitted by the Union in September and with respect to the intervention by the Association. A hearing was convened and the parties appeared and were represented. Two principle issues were raised at the bearing; the first pertaining to the propriety of the Board dismissing the first application and permitting a second to proceed and with that issue I am not concerned; secondly, the form and sufficiency of the intervener's evidence as to membership, the intervener being the Association.

10 At the hearing, counsel for the Association requested leave to call oral evidence to show that applications for membership, that is the other half of the form, were received at the same time as the $1.00 was paid and that the receipt was issued in consequence of those applications. After hearing and considering submissions concerning that request, the Board ruled that oral evidence would not be permitted and it is that ruling which is the principle bone of contention in the pending applications for judicial review.

11 As to the criteria which are appropriate for consideration by a judge hearing motions such as those which are now before me there was for the most part agreement among counsel. The agreement was not complete, but substantial. The difficulty, as usual, is not in determining the criteria, but in determining how those criteria ought to be applied. The criteria are the following. Has the applicant made out a prima facie case? There is a gloss on that question in that there appears to be room for the application of that concept, or some slightly different concept designated a strong prima facie case, and at the other end of the spectrum, so to speak, the showing of an arguable case. In any event, it is apparent that the weight of the applicant's case upon the substantive application is a matter to be considered. The judge should also consider the status quo and whether it is desirable that it should be maintained and related to that, where the balance of convenience lies and whether the applicants, without the making of the order, will suffer damage of the kind which is commonly referred to in injunction cases as irreparable.

12 The two applications, the one by Colautti and the one by the Association, present slightly different considerations insofar as the application of these criteria are concerned.

13 In support of its motion for a stay, the Association filed a number of affidavits sworn by employees of Colautti in the month of November 1985, in other words, just prior to the launching of its motion for a stay, deposing to the opposition of these employees to being represented by the Union. Objection was taken by the respondents to the admission of those affidavits and the question of their admissibility is a preliminary question which I must decide. I am in no doubt that those affidavits would not be properly admissible upon the substantive application for judicial review. They bear directly on a critical issue considered and disposed of by the Board in its decisions. If support were needed for my instinctive conclusion in that regard, it is to be found in the judgment of the Divisional Court in Re: Securicor Investigations & Security Ltd. v. Ontario Labour Relations Board et al. (1985), 18 D.L.R. (4th) 151. That case shows the narrow scope for the admissibility of affidavit material upon an application for judicial review when that affidavit material was not before the tribunal, the proceedings of which are under review.

14 In respect of these affidavits, however, on these motions, a further question arises and that is whether although inadmissible on the substantive application, they may properly be received in support of an application to stay the Board's decision and certificates. It is, I think, clear that affidavit evidence in the form of affidavits which were not before the Board, can, upon certain issues, on motions such as these, be filed and received. Such affidavits, for example, might be filed pertaining to the anticipated damage if the order for stay were not granted or as to the balance of convenience. Indeed, the affidavit of Mr. Emond, the solicitor and counsel who represented the Association at the hearing in November, was filed and referred to the in argument before me, without, as I understand it, objection taken to its contents or its use.

15 The affidavits of the employees to which I have thus alluded are in a different category and their reception, in my view, would be the entry upon a very slippery slope. Those affidavits, pertaining as they do to the preferences of certain employees as to representation, bear on an issue which was before the Board, a central issue. They point to a conclusion in conflict with that arrived at by the Board and to a conclusion which, in my view, can only be accomplished in the labour relations process after the application for judicial review has been heard and successfully determined in favour of the applicants. In my view, those affidavits of the employees are not properly admissible on the motions which I have to dispose of and in the disposition of the motions I have disregarded them.

16 Objection was taken by counsel for both respondents to delay on the part of the applicants in the bringing of the proceedings for judicial review and as a necessary consequence of delay in the bringing of the motions which are now before me. The decision of the Board which principally laid bare the contention which the court, on judicial review, will have to decide, was delivered in writing in the middle of May 1985. An application for judicial review was launched promptly by Colautti, although it was not perfected until recently, and until after a motion brought to dismiss it for failure to do so. A final written decision of the Board was delivered at the end of October 1985 which was retroactive to the 21 of October. It was not until that decision and the certificates had issued, that the application for judicial review was launched by the Association and contemporaneously with that application, its motion which is now before me for a stay.

17 In respect of the bringing of the applications for Judicial review, I think it may fairly be said that the applicants were, in a colloquial expression, between a rock and a hard place. By bringing the applications at the time that they did, they courted the very objection which has been taken, namely that they had unduly delayed and that that delay should be held by the Court to be prejudicial in the exercise of its discretion. On the other hand, had they launched the applications and brought them to hearing before the proceedings of the Board were complete, they might well have been met with the objection that the applications were premature. While I have not found it critical to my disposition of the motions I would not be disposed, having regard for the twin hazards which the applicants were thus called upon to deal with, that delay would be fatal to the applications.

18 It is of course clear that the onus of establishing that the appropriate criteria have been met is in all respects on the applicants. That onus is to be considered in light of the nature of the motions which I have heard and in light of the substantive applications in aid of which the motions are brought. Both the substantive applications and the motions seek extraordinary remedies which are in the discretion of the Court. Such discretion, of course, to be duly exercised upon proper principles. Also of significance in considering the matter of onus is the general trend of the cases and the thrust of the legislation, both of which lead to the conclusion that the intervention of the Court is to be sparingly exercised and only in cases where it is clearly necessary. See for example, Re: The Journal Publishing Co. of Ottawa et al. v. The Ottawa Newspaper Guild, Local 205 et al., [1977] 1 A.C.N.S. 817 (C.A.).

19 The point was taken by counsel for the Association that in a case such as this, where the controversy or a primary controversy, is between two groups of employees, rather than simply between an employer and a group of employees, those principles were of little weight. While the nature of the controversy is undoubtedly a factor to be considered, I am not prepared to conclude that its nature significantly alters the application of the principles to which I have alluded as being exhibited by the jurisprudence and by the Act.

20 Turning to the first of the criteria, the question of a prima facie case, I do not propose to discuss it in detail. I say only that while I see obstacles of some consequence for the applicants upon the proceedings for judicial review, I would not be prepared on that score to refuse the orders which are asked.

21 The submission was made by counsel on behalf of the Association that it was not necessary to success on the motion that an applicant establish that all four criteria had been satisfied. While it is not central to my disposition in the matter, I find that submission difficult to accept. There are undoubtedly cases, and counsel referred to one of them, the judgment of my brother Sirois in Nel-Gor Castle Rest Home v. London and District Service Workers' Union, Local 220 et al. (1985), 9 Admin. L.R. 317 (Ont. Div. Ct.), in which reference is not made to all of the criteria I would be very doubtful, however, that any such order as is here sought would be made without the judge being satisfied that all of those criteria had been met, whether or not he found it necessary to discuss them all.

22 Turning to the second of the criteria, the question of status quo, I point out first that it is always related to the other criteria of balance of convenience and irreparable injury because it is only if there is some reason for intervention on one of those basis that the question of maintaining the status quo arises. Little argument was addressed on the motions before me to this question, save by counsel for the Association who indicated that the status quo that which existed prior to the making of the impugned decision and certificates. I do not find it necessary to rule on that submission.

23 I turn now to the two remaining criteria, balance of convenience and irreparable injury, which can be dealt with effectively together. The motion by the Association depends largely in both these respects on what is said to be overwhelming opposition, on the part of the employees affected, to becoming members of the Union. That argument was largely dependant upon a consideration of the affidavits which I have ruled inadmissible and that ground of support for the motion fails in consequence.

24 The motion by Colautti raises by way of advancing irreparable injury and a balance of convenience favouring it, the adverse affect of the decisions and the certificates on its relationships with its present employees and the disruption of its business operations and practices by reason of being made subject, in some respects, to a Province-wide bargaining agreement as a consequence of certification. In any case in which judicial review of certification by the Board is sought, and a stay is sought, these considerations of necessity in almost all cases exist, but there is, insofar a's I am aware, no general principle that for that consideration that a stay should be granted. Indeed, the indications to be drawn from the cases are to the contrary.

25 Giving due regard to the nature of the motions, the nature of the substantive applications, in support of which the motions are brought, and to the onus which rests on the applicants, I am bound to say that I am not persuaded that onus has been satisfied. In particular, I am not persuaded that it has been shown that the balance of convenience favours the making of the orders, or that irreparable injury will be sustained by reason of the orders not being made.

26 Both motions will be dismissed. It would be ungracious of me to do so without acknowledging the helpful submissions of counsel for all parties which put, in a very articulate fashion, the nature of the problems which I had to resolve. As a matter of first impression, I should think that the proper disposition of costs would be that they be reserved to the court dealing with the substantive applications and I will make that disposition unless someone strenuously objects.

27 The motion of the Association I have endorsed in these terms: "For oral reasons given, motion dismissed, costs to follow the event in the application for judicial review, subject to any order of the reviewing court". The record containing the notice of motion brought by Colautti, I have endorsed in slightly different terms because of the form in which the notice of motion was given. The endorsement is: "For oral reasons given, the motion for a stay is dismissed, costs to follow the event in the application for judicial review, subject to any order of the reviewing court".

28 Order to go granting leave to the applicant to file an amended application for judicial review.

ANDERSON J.

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