New Court of Appeal Administrative Law Decision Applies Vavilov to Decisions from the Ontario Labour Relations Board

Cavalluzzo LLP lawyers are proud to have represented the Appellants

15 December 2022
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On November 16, 2022 the Court of Appeal found that the Divisional Court incorrectly quashed three OLRB decisions by misapplying the standard of reasonableness set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The Court of Appeal's decision was highly anticipated in the labour community.  The Court's main conclusion is that the OLRB continues to be owed significant deference on judicial review, applying the Vavilov approach.

Cavalluzzo LLP's lawyers were pleased to represent the winning party, an important union working for the betterment of its members in the construction labour law movement.  That union defended the OLRB's decisions and secured this important victory.

The three underlying OLRB decisions stemmed from a dispute in the construction industry.  The OLRB found that: (1) The Board would exercise its discretion under s 1(4) of Ontario’s Labour Relations Act to issue a related employer declaration, (2) the related employer was bound to the existing collective agreement, and (3) the collective agreement was breached when the business owner, alone, performed bargaining unit work. On judicial review, the Divisional Court held that all three decisions were unreasonable.  The Divisional Court effectively entered into the fray, recasting legal tests the OLRB had been articulating and applying for decades in cases involving allegations that two or more employers were related for labour law purposes.  Moreover, the Divisional Court during the review made findings of fact in favour of the applicant employer and gave the ultimate decision it felt the OLRB ought to have made. 

The union, on appeal, argued that the Divisional Court's intrusion into the workings of the OLRB was not justified even under the rubric of conducting Vavilov reasonableness review.  The ONCA agreed, holding that the Divisional Court erred:

“[T]he overarching error in the Divisional Court Decision is its failure to follow the Vavilov dictates on the application of the reasonableness standard to the OLRB Decisions. The Divisional Court did not show the requisite restraint and respect for the specialized expertise of the OLRB, nor did it afford the OLRB Decisions appropriate deference. Indeed, as I explain below, it committed errors that Vavilov specifically cautions against with respect to the proper application of the reasonableness standard.”

The ONCA went on to apply the reasonableness standard, ultimately holding that the three Board decisions were reasonable. The ONCA further found that the Divisional Court erred through its failure to remit the matter to the Board. Applying Vavilov, the Court held that, barring extraordinary circumstances, if an OLRB decision is unreasonable, the case should be remitted back to the tribunal. This corresponds with the legislature’s intention to entrust such matters to the administrative decision maker.

This decision serves as a reminder that a reviewing court must consider and defer to the expertise of the administrative decision maker when applying the standard of reasonableness. Post-Vavilov it continues to be the case that the OLRB – as a highly specialized tribunal with significant expertise – is owed the utmost deference.

A link to the decision is here.

Cavalluzzo LLP lawyers Paul Cavalluzzo, Stephen Moreau and Aminah Hanif are proud to have represented the Appellants – Bricklayers, Masons Independent Union of Canada, Local 1, Laborers’ International Union of North America, Local 183, and Masonry Council of Unions Toronto and Vicinity – in this crucial appeal.

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