



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 1990s, 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 arbitrators 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 arbitrators
    jurisdiction.

[9]

ORAC took the position that the arbitrators 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 Unions 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 Unions proposed wage increases.

[11]

ORAC
    brought a judicial review application to the Divisional Court in which it challenged
    only the arbitrators determination of the scope of his jurisdiction.

[12]

The
    Divisional Court concluded that the arbitrators 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 Ministers 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 ORACs 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 [OLRBs] 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 Unions 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
    Unions proposed wage increases. He denied ORACs proposed amendments.

THE ORDER UNDER APPEAL

[36]

The
    Divisional Court did not conduct a standard of review analysis. It concluded
    that the arbitrators 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 arbitrators
    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 arbitrators 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 arbitrators
    determination of the scope of his jurisdiction?

2. Did the Divisional Court err in setting aside the
    arbitrators 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
    arbitrators 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 arbitrators jurisdiction
    to the geographic territory of the GTA, and concluded that the arbitrators
    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 arbitrators 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 arbitrators 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 adjudicators 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 arbitrators
    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 arbitrators specialised expertise.

[51]

I
    do not agree.

[52]

I
    begin by considering ORACs argument that the arbitrators 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 arbitrators 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 arbitrators
    specialised expertise.

[58]

The
    result, as dictated by para. 34 of
Alberta Teachers
, is that the
    arbitrators determination was not a true question of jurisdiction and it is owed
    deference.

[59]

Further,
    I do not accept ORACs 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 Ontarios 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 arbitrators determination raises a constitutional
    issue.

Conclusion on Issue #1

[61]

The
    arbitrators 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
    ARBITRATORS DETERMINATION?

[63]

As
    previously noted, the Divisional Court did not review the arbitrators
    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 courts 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 arbitrators 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
    arbitrators 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
    arbitrators 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 arbitrators proceedings.

(10)
Each party shall
    pay one-half of the arbitrators 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 arbitrators decision and providing for the extension of
    those time limits;

(i)
    requiring the parties to prepare and execute documents giving effect to the
    arbitrators 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.





[1]
The provisions were enacted on an interim basis in 2000 and re-enacted in 2002.
    They became permanent

provisions in 2005.



[2]
Section 150.1(1) specifies that ss. 150.2, .3 and .4 apply only to the City of
    Toronto, the regional municipalities of Halton, Peel, York and Durham, and the
    corporation of the County of Simcoe.


