In Canada Bread Company, Limited v. Ontario Labour Relations Board, 2018 ONSC 1399 (CanLII) an employer sought to stay a number of decisions issued by the Ontario Labour Relations Board (“OLRB” or the “Board”) in applications for certification. Specifically, the stay was sought with respect to a number of interim decisions such that, if the stay were granted it would, according to the Court, “prevent the Board from continuing to determine five applications for certification until the application for judicial review of the September 14, 2017 order has been decided.”
This is an important case, at least for some businesses, who use third party “independent operators” as part of their delivery structure and supply chain. On September 14, 2017, the OLRB determined that, as summarized by the Divisional Court, “certain individuals who have franchise agreements with the Employer for the delivery of its products are dependent contractors and thus they are employees within the meaning of s. 1(1) of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A. The Board found that franchisees with one or more full-time employees were excluded from the proposed bargaining units. The other franchisees, even those with part-time employees, were dependent contractors.”
The stay would prevent the Board from completing the status review process and identifying which individuals are in the bargaining unit, then counting the ballots from representation votes held in April 2015, and determining whether certification should be ordered for one or more of the bargaining units.
The Divisional Court was required to consider the test applied in granting a stay. Justice Swinton considered the test to be applied, and while having “some doubt about the correctness of the approach of my colleagues in the Divisional Court” which has applied a “strong prima facie case” test rather than the “a serious issue” test endorsed by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311. Despite that reservation she nonetheless applied the “a serious issue to be determined test”.
As a slight digression , I draw your attention to another recent Divisional Court case of Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America, 2018 ONSC 548 (CanLII) in which Justice Horkins declined to follow the serious issue to be tried test (despite having applied that very test in Windsor-Essex Children’s Aid Society v. Canadian Union of Public Employees, Local 2286.1, 2016 ONSC 6482 (CanLII)) and applied the strong prima facie test.
In any event the Court in Canada Bread, in obiter, held that “employer has an arguable case on the merits of the application…. and with respect to the reasonableness of the Board’s conclusion that some of the franchisees are dependent contractors” but, having said that, she also considered the prematurity of the employers’ application to the Divisional Court:
The determination of status in September 2017 is but one step in an ongoing certification process. The Board continues to hold hearings to determine which individuals are dependent contractors. It issued a further decision in January, is to receive further submissions by early March, and has two days of hearings scheduled in April. The September decision is clearly an interim decision, and the application for judicial review, even if promptly heard, is likely to interrupt the Board’s proceeding.
It is well established in the jurisprudence that courts generally do not engage in judicial review of interim decisions – that is, decisions taken during the course of an administrative proceeding – absent exceptional circumstances (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 (CanLII) at paras. 68-69).
In the circumstances, there is a “real possibility that a panel of the Divisional Court will refuse to hear this application for judicial review on the grounds of prematurity if the Board has not reached a decision on certification.” In other words, a final decision from the OLRB is required.
The next step in the stay analysis is whether the party seeking the stay has shown that it would be irreparably harmed if the stay were not granted. The Court considered the length of time that the stay would be in effect as a factor that was relevant to the “irreparable harm” question. The Application for Judicial Review would likely be scheduled in May/June 2018, which the Court held would not result in irreparable harm to the employer. More to the point:
The Board proceeding is not complete, as I have explained above. The fact that the Employer must continue to participate in the certification process does not amount to irreparable harm. Even if there is a concern about the counting of the votes before the Court hearing, the Employer could raise its concerns with the Board and ask that the vote be postponed. In any event, even if a certificate is issued in some or all of the units within the next few months, that gives rise to an obligation to bargain, and that bargaining process will obviously take some time.
The employer submitted an affidavit in support of the application, in which the deponent stated that not granting the stay “may” harm customer relations where, for example, there is a strike and that the employers’ business “may” be disrupted and that the employer would “have to undertake a drastic reorganization of its go-to-market strategy.” The Court did not accept these assertions as statements of fact but concluded that they were speculative.
In all of the circumstances, the Court concluded that the employer had not met the second part of the test for a stay and, as such, the application was dismissed.
The Court went on, nonetheless, to consider the third part of the stay test, namely, the balance of convenience. Justice Swinton held that the balance of convenience weighed against the granting of a stay. Specifically, the certification process has been lengthy and “the individuals affected by the certification applications have been awaiting a result of the process since 2015. The stay, if granted, will cause further delay in the process to determine their bargaining rights.”
In all of the circumstances, the Court dismissed the employer’s application on a variety of basis.