SCC says labour board was right all along

Written by  Posted Date: December 3, 2012
Driver Iron is an employer and can’t opt out of agreements with unions, confirmed the SCC. Photo: Shutterstock
Driver Iron is an employer and can’t opt out of agreements with unions, confirmed the SCC. Photo: Shutterstock
The Supreme Court of Canada has affirmed the original decision of the Alberta Labour Relations Board in a case involving the complexities of unionized and non-unionized construction workers in the province.

In Construction Labour Relations v. Driver Iron Inc., the SCC ruled Nov. 29 that the Alberta Labour Relations Board was correct when it decided Driver Iron Inc. was an employer and should be subject to the terms of a collective agreement between an employers’ organization and trade union.

“The Supreme Court of Canada was really just concerned about standard of review here,” says Hendrik Nieuwland of Shields O’Donnell MacKillop LLP. “In assessing the standard of review for a labour board they’re dealing with a complex statutory scheme and they’re dealing with it all the time. They have particular expertise and it’s acknowledged they have that expertise.”

“The Supreme Court is consistently sending messages that administrative tribunals decisions have to be respected,” says Nieuwland. “There’s been a constant recognition that specialized tribunals are able to make interpretations of law in their areas of expertise and we should defer to that because the courts are courts of general law and not, per se, specialists in their area.”

The lawyer representing Driver Iron says the decision reflects the top court's message lately that enough is enough and it doesn't want to encourage reviewing courts to consider further reviews and appeals. By taking a case like Driver Iron, it is sending a message to the courts and the bar that we're going to give a lot of latitude to administrative tribunals.

“It's almost an access to justice issue,” says Peter Gall of Heenan Blaikie LLP in Vancouver. “We can’t expect, now, Cadillac justice in each and every case. That’s too expensive and time consuming. I think the court is sending a strong message about access to justice and the role the courts have to play.”

The question originally put to the labour relations board in this case was: Does the Labour Relations Code allow some contractors to agree to be bound by some terms of a larger collective agreement and not others, on a one-off basis for a fixed period of time?

“The labour board said absolutely not, because the regime in place was set up to make sure there is stability in the construction industry and everyone plays on a level playing field, and the interpretation destroys the level playing field. It allows people to underbid each other,” says Nieuwland.

In the case, the Construction Labour Relations Association is an umbrella organization that represents two registered employers’ organizations in Alberta — the Reinforcing Trade Division and the Structural Trade Division. Driver Iron Inc. is an Alberta-based company that does reinforcing and structural ironworking.

The International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720, is a craft union that represents workers engaged in both structural and reinforcing ironwork in Alberta. Local 720 was a party to continuing Registration Collective Agreements with the two employers’ organizations represented by the CLRA.

In the early part of 2006, Driver Iron was awarded work on the Horizon Oil Sands Project. Driver Iron, which was not unionized, advised Local 720 it was prepared to make its best efforts to use members of the local to do the ironwork on the project and additional projects if they could agree to terms and conditions of employment. Driver Iron was not prepared to be unionized or agree to the terms of the collective agreement in place.

Eventually Local 720 and Driver Iron agreed to the terms of a time-limited collective agreement.

The agreement was not renewed once it expired. In 2008, Driver Iron and Local 720 entered into a new agreement to govern their relationship and agreed it would not be governed by the code and would not be enforced by either party as a collective agreement under the code. The CLRA complained to the Alberta Labour Relations Board about the agreement and alleged it violated several provisions of the code.

The CLRA claimed Local 720 and Driver Iron were not permitted to directly negotiate terms and conditions of employment for Driver Iron’s employees. Only the CLRA could negotiate on behalf of Driver Iron. Driver Iron was also bound by the terms of the Registration Collective Agreements.

Driver Iron and Local 720 maintained they could enter into an agreement that governed terms and conditions of employment that were outside the ambit of the code. The board declared that Driver Iron was an employer according to the code and was subject to the terms of the Registration Collective Agreements between the CLRA and Local 720.

The application for judicial review was dismissed by the Court of Queen’s Bench. It was found the plain wording of ss. 176(1)(b) and 178 supported the board’s interpretation that the CLRA was the exclusive bargaining authority on behalf of Driver Iron and that Driver Iron was bound by the Registration Collective Agreements for the duration of its agreement with Local 720.

The Court of Appeal did try to overturn the tribunal based on a small section of the code, suggesting the board did not deal with the matter entirely.

“The Supreme Court says here the Court of Appeal is not a proper way of overturning a specialized tribunal dealing with an extraordinarily complicated statutory regime,” says Nieuwland.

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Jennifer Brown

Jennifer Brown is the editor of Candian Lawyer InHouse.

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