



COURT OF APPEAL FOR ONTARIO

CITATION:
Greater
    Essex County District School Board v. International Brotherhood of Electrical
    Workers, Local 773, 2012 ONCA 791

DATE: 20121120

DOCKET: C55503

OConnor A.C.J.O., Simmons and Rouleau JJ.A.

BETWEEN

Greater Essex County District School Board

Applicant (Appellant)

and

International Brotherhood of Electrical Workers,
    Local 773; The International Unions of Bricklayers and Allied Craftsmen, Local
    6; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
    Industry of the United States and Canada, Local 552; The International Unions
    of Painters and Allied Trades, Local 1494; Labourers International Unions of
    North America, Local 625 and the Ontario Labour Relations Board

Respondents (Respondents)

Leonard P. Kavanaugh, Q.C. and Suzanne M. Porter, for
    the applicant (appellant)

Craig Flood and Ronald Lebi, for the respondent trade
    unions

Leonard Marvy, for the respondent, Ontario Labour
    Relations Board

Heard and released orally:  November 8, 2012

On appeal from the judgment of the Divisional Court
    (Leitch, Swinton and Hoy JJ.), dated January 12, 2012.

ENDORSEMENT

[1]

We dismiss the appeal.  We agree with the Divisional Court that the
    decision of the Ontario Labour Relations Board (the OLRB) was reasonable.

[2]

In our view, it was reasonable to interpret the definition of
    construction industry in s. 1 of the
Ontario Labour Relations Act
(the
    
OLRA
) to include the construction management activities of the
    school board carried out by Mr. Faulkner.  These activities were akin to those
    carried out by a general contractor.  We are also of the view that it was
    reasonable for the OLRB to conclude that the receipt of compensation by the
    school board for the construction management activities constituted the operation
    of a business within the definition of an employer in s. 126 of the
OLRA
. 
    In reaching this conclusion, the OLRB relied upon its prior decisions made over
    a period of 45 years.

[3]

We are satisfied that the relationship between the school board and the three
    other owners of the property in issue did not preclude the OLRB from finding
    that they were unrelated persons within the definition of a non-construction
    employer.  The owners of the property governed their relationship through an
    agreement which provided
inter alia
that the three other owners would
    pay compensation to the school board for providing construction management
    activities.  Each of the parties are separate legal entities with different
    mandates.  We agree with the Divisional Court that in forming this relationship,
    they would have acted at arms length.

[4]

In these circumstances, we do not consider the conclusion that the
    owners were unrelated persons to be unreasonable.  We recognize that in
    reaching this conclusion, the OLRB mistakenly said that the property was owned
    by only three of the four actual owners.  That mistake, however, in our view,
    did not affect the OLRBs eventual conclusion on this issue.  In para. 93 of
    its reasons, the OLRB clearly found that all of the owners were unrelated
    persons.

[5]

We do not accept that the Divisional Court erred in not setting aside
    the decision of the OLRB for providing insufficient reasons.  The reasons read
    in context of the record as a whole provided a sufficient basis to understand
    the reasons why the OLRB reached its conclusion.

[6]

Finally, we agree with the Divisional Court that the prior decisions of
    the OLRB were not binding on the respondent unions who were not parties to
    those applications.

[7]

In the same vein, we note that the OLRB decision that underlies this
    appeal is not an
in rem
decision as to whether the school board is a
    non-construction employer.

[8]

Costs to the respondent unions in the amount of $15,000, inclusive of
    all applicable taxes.

D. OConnor A.C.J.O.

Janet
    Simmons J.A.

Paul
    Rouleau J.A.


