



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 OBrien,

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 OBrien, 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 OBrien, 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-Chairs 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 183s 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 183s election.  Ten of these (one of which
    involved Mr. OBrien 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. OBrien 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. OBrien 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. OBrien.  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. OBriens 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. OBrien 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. OBriens length of service.  Furthermore, if length of
    service did have significance, Mr. OBrien 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. OBriens 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. OBrien that would
    negatively affect his interests or the interests of the other applicants [the Employees]
    in this proceeding.

(ii)

LIUNAs and Local 183s 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-Chairs
    relationship to Mr. OBrien 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. OBriens 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 lawyers 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 lawyers 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 adjudicators 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-Chairs 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. OBriens
    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.
    OBriens 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.  OBrien.  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. OBrien 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
    adjudicators 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. OBrien would waive any solicitor/client privilege that
    might govern the Vice-Chairs anticipated testimony.

[37]

I
    therefore conclude that the Vice-Chairs 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-Chairs 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
    Applications 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-Chairs 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 Boards 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-Chairs 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-Chairs finding that they all intended
    to proceed with their claims together.  In the absence of any representation by
    Messrs. OBrien 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 Melos 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-Chairs exercise of discretion
    was unreasonable.

[57]

This
    exercise of discretion is at the core of the OLRBs 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 Employees 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.


