Terceira v. Labourers International Union of North America

Terceira v. Labourers International Union of North America Collection Decisions of the Court of Appeal Date 2014-11-26 Neutral citation 2014 ONCA 839 Docket numbers C58059, C58146 Judges Feldman, Kathryn N.; Blair, Robert Ashley; Pepall, Sarah E. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Terceira v. Labourers International Union of North America, 2014 ONCA 839 DATE: 20141126 DOCKET: C58059 & C58146 Feldman, Blair and Pepall JJ.A. BETWEEN Durval Terceira, Jaime Melo, Michael O’Brien, Gaetano Strazzanti and Cesar Daniel Avero Applicants (Respondents) and 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) 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 Heard: September 11, 2014 On appeal from the order of the Divisional Court (Justices Anne M. Molloy, Ian V.B. Nordheimer and Alison Harvison Young), dated June 6, 2013, with reasons reported at 2013 ONSC 3344, 58 Admin L.R. (5th) 140, quashing the decisions of the Ontario Labour Relations Board, dated March 30, 2012, and August 29, 2012. Pepall J.A.: Introduction [1] The main issue on this appeal is the application of the test governing a request for the disqualification of an Ontario Labour Relations Board Vice-Chair on the basis of reasonable apprehension of bias in circumstances where he had previously acted for one of the parties appearing before the Board. [2] The appellant, the Labourers International Union of North America (“LIUNA”), is an international trade union based in Washington, D.C. The appellant, the Universal Workers Union – Labourers International Union of North America Local 183 (“Local 183”), is a local trade union situated in Toronto and is affiliated with, and chartered by, LIUNA. [3] On this appeal, the appellants take the position that in disqualifying Vice-Chair Shouldice of the Ontario Labour Relations Board (“OLRB”), the Divisional Court incorrectly applied the test in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 relating to conflict of interest of a lawyer and therefore incorrectly quashed the OLRB decision. They say that the correct test to be applied to an adjudicator for reasonable apprehension of bias is described in Committee for Justice v. National Energy Board, [1978] 1 S.C.R. 369 and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. The OLRB and the intervener, the Attorney General for Ontario, support the position of the appellants on this issue. [4] The respondents, Durval Terceira, Jaime Melo, Michael O’Brien, Gaetano Strazzanti and Cesar Daniel Avero, are former employees, members and officers of the appellant, Local 183 (the “Employees”). They brought proceedings before the OLRB that were dismissed by the Vice-Chair. They then brought an application for judicial review before the Divisional Court. That court quashed the OLRB decisions on the grounds that the Vice-Chair was in an actual or perceived conflict of interest. The respondents agree that the Divisional Court applied the incorrect test but submit that the correct test yields the right result and that the OLRB decisions were properly quashed. [5] As the Divisional Court determined that the decisions of the Vice-Chair should be quashed on the grounds of conflict of interest, it did not rule on the remaining grounds advanced by the respondents. On appeal, all parties request that this court address those grounds. [6] For the reasons that follow, I would set aside the decisions of the Divisional Court disqualifying the Vice-Chair and would reinstate the Vice-Chair’s decisions on the remaining grounds as well. Facts (a) Background [7] The Employees were elected to the board of Local 183 in September 2007. In June 2011, they were defeated in a contested election by the members. After the election, the new executive took the position that the Employees had engaged in misconduct while in office. On July 11, 2011, Local 183 terminated the employment of the Employees. (b) OLRB Application and Court Actions [8] On July 29, 2011, the Employees commenced an application (the “Application”) before the OLRB pursuant to s. 96 of the Labour Relations Act, S.O. 1995, c. 1, asserting that LIUNA and Local 183 had violated certain sections of the Act. Among other things, the Employees submitted that LIUNA had improperly interfered with the election and that they were subject to unlawful reprisals including the termination of their employment. They sought reinstatement of employment, reinstatement to Local 183’s executive board, compensation for losses, and an order for aggravated and punitive damages. [9] The Application was one of 11 before the OLRB relating to terminations of employment following Local 183’s election. Ten of these (one of which involved Mr. O’Brien and the four other Employees) were consolidated and heard before Vice-Chair Shouldice over the course of four weeks. They were ultimately settled and withdrawn. No concerns about any apprehension of bias were ever raised in those proceedings. [10] Additionally, court proceedings undertaken by Local 183 and the Employees that relate to the termination of the employment of the Employees and to allegations of financial impropriety are ongoing. (c) Preliminary Objections [11] The appellants raised certain preliminary objections. LIUNA and Local 183 asserted that the Employees’ Application should be dismissed without a hearing on the merits on the basis of res judicata, abuse of process, absence of a valid labour relations purpose, timeliness, and lack of standing. A hearing to argue these preliminary objections was convened before the Vice-Chair on December 19, 2011. (i) Employees’ Objection [12] At the outset of the December 19, 2011 hearing, the Employees raised their own preliminary issue. They requested that the Vice-Chair recuse himself on the basis of a reasonable apprehension of bias. [13] Counsel for the Employees submitted that the Vice-Chair had acted for Mr. O’Brien in a dispute with Local 183 and that the terms and conditions of his former employment with an entity related to Local 183 and the calculation of his past service were remedial issues in the Application. Furthermore, they asserted that there was potential for the Vice-Chair to become a witness in the Application. [14] In his reasons for dismissing the request for recusal, the Vice-Chair stated that about seven years ago, he had acted for Mr. O’Brien in an employment dispute with Local 183 and its benefits administrator. The retainer resulted in a Statement of Claim being issued on behalf of Mr. O’Brien. The litigation proceeded no further than the pleadings stage and the claim was discontinued as a result of a settlement. The Vice-Chair stated that he had no present recollection of any of the terms of Mr. O’Brien’s employment. Further, the Employees would have production of documents from LIUNA and Local 183 by the time any remedial issues arose in the Application. [15] The Vice-Chair declined to recuse himself on the basis of reasonable apprehension of bias. In his view, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not think that there was any possibility of bias. His brief endorsement contemplated further written reasons. [16] In his subsequent written reasons dated March 30, 2012, the Vice-Chair noted that if, after the merits of the Application were adjudicated, it was determined that Mr. O’Brien was entitled to compensation, it was unclear that any such compensation would be determined by reference to his length of service. The relief claimed by the Employees in their Application disclosed no claim for damages based on Mr. O’Brien’s length of service. Furthermore, if length of service did have significance, Mr. O’Brien could testify on the issue at the hearing, supported, if necessary, by documentary disclosure by Local 183. The Vice-Chair stated that he had no first-hand knowledge of the circumstances surrounding Mr. O’Brien’s employment with Local 183. These were objective facts. He also observed: “There was no suggestion by counsel for the applicants [the Employees] that I am in possession of confidential information from Mr. O’Brien that would negatively affect his interests or the interests of the other applicants [the Employees] in this proceeding.” (ii) LIUNA’s and Local 183’s Objections [17] The Vice-Chair then considered the proceeding before him, that is, the preliminary objections of LIUNA and Local 183. He accepted the submissions of LIUNA and Local 183 that the Employees’ Application should be dismissed because an inquiry into the Application would serve no labour relations purpose. [18] Quite apart from the merits, on the issue of remedies, he would not reinstate Messrs. Terceira, Avero and Melo as they now worked for a rival union and reinstatement would give rise to a conflict of interest. Furthermore, he would not reinstate any of the Employees because Local 183 would be holding its next election before the end of the litigation. Lastly, the OLRB did not award aggravated or punitive damages or legal fees. No labour relations purpose would be served by a hearing of the Employees’ Application and he accordingly dismissed it. (d) Request for Reconsideration [19] The Employees then filed a Request for Reconsideration. In their Request for Reconsideration, the Employees made two main submissions: the Vice-Chair’s relationship to Mr. O’Brien gave rise to a reasonable apprehension of bias and they were denied natural justice. In reasons dated August 29, 2012, the Vice-Chair rejected the Employees’ request. [20] First, the Vice-Chair considered the Employees’ argument that there was a reasonable apprehension of bias because the Vice-Chair had knowledge of Mr. O’Brien’s contract and past service with Local 183. The Vice-Chair wrote that he had no such knowledge as alleged and, in any event, these facts were not in issue in the proceeding. He observed that the Employees “did not explain at the hearing how those facts arguably relate to any issue in dispute in this proceeding, and they failed to address that question in their Request for Reconsideration.” He also noted that they had not indicated what first hand evidence he could offer as a witness that arguably would be relevant to any issue raised in the proceeding before him. [21] Secondly, the Vice-Chair rejected the Employees’ submission that there had been a breach of natural justice. He dismissed the Employees’ claim that he had refused to hear oral evidence, stating that at no time did he refuse to hear evidence. He also rejected the Employees’ submission that they did not have an opportunity to comment on the decision of Wal-Mart Canada Corp. (2011), 197 C.L.R.B.R. (2d) 104 (OLRB), which he had referred to in his reasons. The decision contained a concise summary of already well-known principles. [22] He also dismissed the Employees’ claims that he had made factual findings unsubstantiated in the evidence. He concluded that he was competent to estimate the anticipated length of the proceeding, which he found would amount to well over 100 days, and would come at a staggering financial cost to the parties and the public. He noted that his conclusion on mitigation was limited to a finding that there had been mitigation by three of the five Employees and that he had made no reference to quantum. He further noted that based on the record, he was entitled to conclude that that the Employees were pursuing the complaint as a group. [23] He dismissed all the arguments raised in support of the Request for Reconsideration. (e) Divisional Court [24] The Employees sought judicial review of the March 30 and August 29, 2012 decisions and asked that they be quashed. The Divisional Court concluded that MacDonald Estate was applicable, misuse of confidential information was presumed, and the Vice-Chair was in an actual or perceived conflict of interest. Although reference was made to appearance of bias, neither the strong presumption of impartiality that favours an adjudicator nor the contextual framework was mentioned. The Divisional Court quashed both decisions and remitted the matter back for reconsideration by a differently constituted OLRB. [25] This court subsequently granted leave to appeal the Divisional Court order on December 5, 2013. Analysis (i) Reasonable Apprehension of Bias [26] Before this court, it was accepted by all parties that the test set forth in Wewaykum was applicable and not that in MacDonald Estate. This court and others, as well as the OLRB, have consistently applied a reasonable apprehension of bias test to address adjudicators’ prior professional relationships: see, for example, Rando Drugs Ltd. v. Scott, 2007 ONCA 553, 86 O.R. (3d) 641 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 494; Re Marques and Dylex Ltd. (1977), 18 O.R. (2d) 58 (Ont. Div. Ct.); 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 (OLRB); and Re Suguitan, 2006 CanLII 2415 (S.C.). [27] The distinction between a claim of conflict of interest by a lawyer and reasonable apprehension of bias by an adjudicator is significant for a number of reasons. In MacDonald Estate, which addresses a lawyer’s potential conflict of interest, the Supreme Court found, at p. 1260, that the imparting of confidential information is presumed to occur. In contrast, in Wewaykum, which addresses a claim of reasonable apprehension of bias of an adjudicator, the Supreme Court established, at para. 59, that impartiality of the adjudicator is presumed. Indeed, there is a strong presumption of judicial (or in this case adjudicative) impartiality and integrity: Ontario Provincial Police v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para 44. [28] The rules governing a lawyer’s conflict of interest stem, in part, from the existence of a fiduciary relationship and a duty of loyalty owed to the client: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at paras. 19, 48; R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at pp. 640-644 and MacDonald Estate, at pp. 1243-1246. In contrast, the adjudicator’s duty is anchored in principles of procedural fairness including impartiality: Wewaykum, at paras. 57-59. [29] The distinction has important implications for the OLRB administrative function. In selecting its adjudicators, the OLRB draws upon the expertise of practitioners from within the labour and employment bar. A presumption of disqualification would operate to disregard this practical reality. As stated by Morden J. in Re Marques and Dylex Ltd., at p. 70: “Most, if not all of those appointed [to the OLRB], are bound to have some prior association with parties coming before the Board.” Having said that, there will of course be instances of adjudicative bias as, for instance, where a decision-maker has a material pecuniary interest in a proceeding. [30] By applying the incorrect test, the Divisional Court failed to apply the presumption of impartiality. The Divisional Court also failed to conduct a contextual analysis, which requires consideration of a number of factors that are relevant to the reasonable apprehension of bias test: Wewaykum, at paras. 74-93. The inquiry into an allegation of apprehension of bias by an adjudicator is “highly fact-specific” and is evaluated on an objective standard: Wewaykum, at paras. 73, 77. The person considering the alleged bias must be reasonable and the apprehension of bias must be reasonable: Wewaykum, at para 73. To succeed in this case, the Employees would have to establish that reasonable, right-minded and properly informed persons would think that the Vice-Chair was consciously or unconsciously influenced by his participation, about seven years earlier, in a matter resolved at the pleadings stage and of which the Vice-Chair said he had no knowledge of any parts material to the proceeding before him. [31] Given the foregoing, I must consider anew the issue of reasonable apprehension of bias. For the following reasons, I would reinstate the Vice-Chair’s decision. [32] Fundamentally, the Employees failed to rebut the presumption of impartiality that attached to the Vice-Chair. [33] The proceeding before the Vice-Chair was a hearing dealing with preliminary motions submitted by LIUNA and Local 183 and, as such, was limited in scope. Mr. O’Brien’s length of service with an entity related to Local 183, if relevant at all, was only germane to the remedial stage of the Application. This was not before the Vice-Chair. [34] No materials or record of any kind were filed in support of a claim of reasonable apprehension of bias. This is particularly noteworthy given that the client was making the bias allegation rather than an opposing party who might not possess any such materials. The Employees submit that they were unaware that the Vice-Chair was to preside until they entered the hearing room. That said, they did not seek an adjournment. [35] Mr. O’Brien’s retainer ended about seven years prior and settled at the pleadings stage. It did not include unfair labour practice complaints against LIUNA or Local 183. Examined objectively, there was an inadequate nexus between the factual matrix before the Vice-Chair and the prior retainer by Mr. O’Brien. Furthermore, the Vice-Chair noted, at para. 7 of his reasons dated March 30, 2012: There was no suggestion by counsel for the applicants that I am in possession of confidential information from Mr. O’Brien that would negatively affect his interests or the interests of the other applicants in this proceeding. As stated in Rando Drugs Ltd., at para. 29, an adjudicator’s statement that “he or she knew nothing about the case and had no involvement in it will ordinarily be accepted at face value unless there is good reason to doubt it.” [36] On the issue of being a potential witness, there was no evidence of material facts on which the Vice-Chair might be called to testify nor was there any representation that Mr. O’Brien would waive any solicitor/client privilege that might govern the Vice-Chair’s anticipated testimony. [37] I therefore conclude that the Vice-Chair’s decision on the issue of reasonable apprehension of bias should be reinstated. As such, there is no need to address the appellants’ submission that the Employees waived their right to object given their failure to object during the four week hearing of the consolidated proceedings. (ii) Remaining Grounds [38] The Employees make two additional arguments in support of their position that the Vice-Chair’s decisions should be quashed. (a) Procedural Fairness [39] The Employees allege that there was a denial of procedural fairness and advance various arguments in support of their position. [40] First, the Employees submit that the Vice-Chair determined that the Application should be dismissed because it served no labour relations purpose, yet none of the parties, nor the Vice-Chair, raised this issue during the hearing. The Employees also argue that the parties were not given an opportunity to address the decision in Wal-Mart Canada Corp., on which the Vice-Chair anchored his decision. Accordingly, the Employees argue that the Vice-Chair breached their natural justice rights by depriving them of the opportunity to challenge the theory and jurisprudence on which his decisions were based. [41] As these submissions engage issues of procedural fairness and the right to natural justice, no assessment of the appropriate standard of review is required: Ontario Provincial Police, at para. 37 and Moreau-Bérubé v. New-Brunswick, 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74. This court is required to assess anew the facts and context upon which the Vice-Chair acted. [42] I am unable to give effect to the Employees’ submissions in this regard. The appellants advised the Employees that they would raise the question of the Application’s labour relations purpose prior to the hearing in correspondence dated December 9, 2011. It was also mentioned as an argument in the written submissions provided by Local 183 to the Employees the day before the hearing on December 18, 2011. Consistent with that expressed intention, the labour relations purpose argument was both raised and argued by the parties during the hearing. This is evident from paras. 56, 60 and 68 the Vice-Chair’s reasons dated March 30, 2012. [43] In addition, while Wal-Mart Canada Corp. was decided after the hearing and was therefore not argued by any of the parties, as acknowledged in para. 51 of that decision, it raised no new principles of law: The Board’s jurisprudence with respect to its discretion under section 96 of the Act is well-established. The Board possesses discretion whether it will inquire or not inquire into an unfair labour practice complaint, and, in particular, because proceeding further serves no labour relations purpose. That is because: “It is important for the Board to expend [its] limited resources in a way that is consistent with the objectives of the statute, will best accomplish its statutory mandate, and is sensitive to practical labour relations realities.” [44] Secondly, the Employees submit that they were deprived of their right to call oral evidence. There is no support in the record for the Employees’ position. At paras. 11-13 of the Vice-Chair’s reasons dated August 29, 2012, he points out that no one asked to call any evidence and he did not refuse any request to call evidence. The Vice-Chair cannot be faulted on this ground. [45] Thirdly, the Employees submit that the Vice-Chair made factual findings that were unsupported by the evidence. They contest findings made on four issues: conflict of interest, severance of the claims, mitigation, and cost and delay. [46] A review of the record reveals that the Vice-Chair did have a foundation for his factual findings. [47] In its December 9, 2011 correspondence, LIUNA wrote that Messrs. Terceira, Avero and Melo had raided a LIUNA affiliate, thereby creating a conflict of interest if the OLRB reinstated them to their Local 183 executive board positions. The fact that Messrs. Terceira, Avero and Melo had accepted employment with a rival trade union was asserted by LIUNA both by letter and during the hearing. Nor was this disputed by the Employees. Indeed, they acknowledged this fact in their oral argument. The Employees had notice of the issue and cannot be said to have been denied an opportunity to respond. Moreover, given the positions of the parties, the Vice-Chair was correct in concluding that he did not need evidence to come to the conclusion he did. [48] The Employees also take issue with the Vice-Chair’s finding that they all intended to proceed with their claims together. In the absence of any representation by Messrs. O’Brien and Strazzanti that they intended to sever their claims, it was a fair inference for the Vice-Chair to conclude that all of the Employees’ claims would be heard together. [49] The Employees also allege that the Vice-Chair erred in finding that three of the five Employees had mitigated their financial losses. As noted, Messrs. Terceira, Avero and Melo’s employment with a rival trade union was raised during the hearing and was not disputed. It was open to the Vice-Chair to find that there had been some mitigation. [50] Lastly, the respondents complain that the Vice-Chair improperly determined at paras. 89 and 96 of his reasons dated March 30, 2012 that the amount of relief available to some of the Employees was not “worth it” given “the overwhelming financial cost to the parties and to the Board” and that the Application would require in excess of 100 hearing days. They state that the Vice-Chair heard no evidence and entertained no submissions on the quantum of relief or the anticipated length of the hearing. Moreover, the Employees argue that the Vice-Chair failed to consider tools available to expedite and streamline the proceedings. [51] Given the matters in play, cost and delay were relevant factors. It was open to the Employees to address the issues of cost and delay but they opted not to do so. Furthermore, the Vice-Chair was well placed to make an assessment on the anticipated cost and length of the Application. [52] In my view, there was no denial of procedural fairness. [53] The nature of a Request for Reconsideration must also be considered when addressing the objections of the Employees. [54] As stated in Amalgamated Transit Union Local 113 v. Ontario Labour Relations Board (2007), 88 O.R. (3d) 361 (Ont. Div. Ct.), at para. 106, a Request for Reconsideration is recognized as a significant procedural protection that heightens the ultimate content of procedural fairness to a party. Reconsideration allows the party to make submissions on an issue on which that party had no prior opportunity to make submissions. Parties seeking reconsideration should provide full representations in support of their request: see Labourers’ International Union of North America v. Westendorp Demolition (2011), O.L.R.D. No. 3803 (OLRB), at para. 12 and Ontario, Ontario Labour Relations Board, Rules of Procedure, r. 18.1. [55] The Employees were not deprived of any procedural protections. The Employees had the opportunity to make submissions on the deficiencies of which they complain in the Request for Reconsideration. They either unsuccessfully did so as, for example, on the issue of labour relations purpose and the Wal-Mart Canada Corp. decision or, alternatively, chose not to do so. This lends support to the rejection of their claims of breaches of their rights to natural justice. (iii) Reasonable Exercise of Discretion Not to Inquire into Application [56] The last ground advanced by the Employees is that, in concluding that there was no labour relations purpose, the Vice-Chair’s exercise of discretion was unreasonable. [57] This exercise of discretion is at the core of the OLRB’s expertise and is reviewable on a standard of reasonableness. In addition, when the OLRB applies its constituent statute, as it did here by applying s. 96 of the Labour Relations Act, a reasonableness standard applies: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54. [58] As noted, s. 96(4) of the Labour Relations Act provides the OLRB with the discretion to refuse to entertain an application. Here, the Vice-Chair considered the relevant factors. He recognized that the Employee’s Application was both arguable and timely. He weighed this against other relevant factors, including the unavailability of primary remedies and the cost of the potential proceeding, and determined that it was important for the OLRB to expend its limited resources in a way that was consistent with the objectives of its governing statute and statutory mandate. The unavailability of the primary remedies and the significant estimated cost of the proceeding outweighed any competing factors. The Vice-Chair was in the best position to make this assessment and his discretionary decision not to inquire into the Application is entitled to deference. [59] Accordingly, I would not give effect to this additional ground of appeal. Disposition [60] I would therefore allow the appeal, set aside the order of the Divisional Court, and restore the orders of the OLRB dated March 30 and August 29, 2012. [61] If the appellants and respondents are unable to agree, I would order them to make brief written submissions on costs. No costs were claimed by the OLRB or by the intervener, the Ministry of the Attorney General. Released: “KF” “S.E. Pepall J.A.” “NOV 26 2014” “I agree K. Feldman J.A.” “I agree R.A. Blair J.A.”