Ellis-Don Ltd. v. Ontario (Labour Relations Board)

Ellis-Don Ltd. v. Ontario (Labour Relations Board)
Collection
Supreme Court Judgments
Date
2001-01-26
Neutral citation
2001 SCC 4
Report
[2001] 1 SCR 221
Case number
26709
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Administrative law
Notes
SCC Case Information: 26709
Decision Content
Ellis‑Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4
Ellis‑Don Limited Appellant
v.
The Ontario Labour Relations Board and
the International Brotherhood of Electrical Workers,
Local 894 Respondents
Indexed as: Ellis‑Don Ltd. v. Ontario (Labour Relations Board)
Neutral citation: 2001 SCC 4.
File No.: 26709.
2000: February 15; 2001: January 26.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Administrative law ‑‑ Natural justice ‑‑ Institutional consultations ‑‑ Union filing grievance with labour relations board against contractor for violation of provincial collective agreement ‑‑ First draft of panel’s decision dismissing grievance ‑‑ Full board meeting discussing draft decision ‑‑ Panel’s final decision upholding grievance ‑‑ Whether rules of natural justice breached ‑‑ Whether principles governing institutional consultations violated ‑‑ Whether contractor’s failure to ask for reconsideration of decision constitutes bar to judicial review ‑‑ Nature of evidentiary burden on party applying for judicial review because of alleged breach of natural justice.
Administrative law ‑‑ Judicial review ‑‑ Audi alteram partem ‑‑ Union filing grievance with labour relations board against contractor for violation of provincial collective agreement ‑‑ First draft of panel’s decision dismissing grievance ‑‑ Full board meeting discussing draft decision ‑‑ Panel’s final decision upholding grievance ‑‑ Contractor alleging breach of audi alteram partem rule ‑‑ Whether apprehension of breach sufficient to trigger judicial review.
In 1962, the appellant entered into a collective bargaining agreement to contract or subcontract only to individuals or companies whose employees were members of the affiliated unions of the Toronto Building and Construction Trades Council. In 1971, the Electrical Contractors Association of Toronto applied to the respondent Board to be certified as a bargaining agent for the electrical contractors of Toronto. In that accreditation process, the IBEW, Local 353 filed a required document listing all employers for which it claimed bargaining rights but it did not include the appellant’s name. In 1978, when province-wide bargaining was introduced, the bargaining rights of Local 353 were extended to Local 894. In 1990, Local 894 filed a grievance with the Board alleging that the appellant had subcontracted electrical construction work to non-union subcontractors contrary to the provincial collective agreement. A three-member panel of the Board heard the grievance. The appellant argued that Local 353 had abandoned its bargaining rights in part because it omitted the appellant’s name from the document filed in the 1971 accreditation proceedings and Local 894 offered no explanation for the omission. A first draft of the panel’s decision would have dismissed the grievance based on the abandonment of bargaining rights. However, after a full Board meeting discussed the draft, a majority of the panel found that there had been no abandonment of bargaining rights and upheld the grievance. The appellant applied for judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change, and claimed that there was a breach of natural justice and a violation of the rules governing institutional consultations. Prior to the hearing of the application for judicial review, the appellant obtained an order compelling the Chair of the Board, the Vice-Chair who presided over the panel, and the Registrar of the Board to give evidence with respect to the procedures implemented by the Board in arriving at its final decision. This order was reversed on appeal based upon a finding of statutory testimonial immunity. The Divisional Court later dismissed the application for judicial review and the Court of Appeal affirmed the decision.
Held (Major and Binnie JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Arbour and LeBel JJ.: Institutional consultation ensures consistency in the decisions of an administrative body and does not create an apprehension of bias or lack of independence if the following rules are respected: (1) the consultation proceeding cannot be imposed by a superior level authority within the administrative hierarchy; (2) the consultation must be limited to questions of policy and law; and (3) even on questions of law and policy, the decision‑makers must remain free to make their own decision. The mere fact that litigated issues are discussed by a full board does not amount to a breach of the audi alteram partem rule. Any risk of breaching this rule can be addressed by notifying the parties of any new issue addressed in the board meeting and allowing an opportunity to respond. If these rules are met, then adjudicators may modify a draft decision and a presumption of regularity applies such that a change between a draft and final reasons will not of itself create a presumption that something improper occurred during institutional consultations.
In this case, there is no direct evidence of improper tampering with the decision of the panel. The only information available is that discussions took place at the full Board meeting and that a change was made in the draft decision. The final decision discarded the idea that the failure to list the appellant created a rebuttable presumption of abandonment of bargaining rights and stated that the omission merely constituted a factor to be considered in deciding the issue of abandonment. The change consists in a different conclusion as to the legal consequences to be derived from the facts, which is a pure question of law. Moreover, it does not constitute the application of an entirely new policy since the change brought the final decision more in line with a number of cases decided by the Board that made it very difficult to establish an abandonment of bargaining rights. It would be speculative to argue that the change was prompted by a re-assessment of the particular facts. Furthermore, a change from a favourable to an unfavourable decision by itself does not demonstrate an apparent failure of natural justice sufficient to justify judicial review. In the case of an alleged violation of the audi alteram partem rule, the applicant must establish an actual breach; an apprehended breach is not sufficient to trigger judicial review. Here, the record does not indicate an actual breach of the audi alteram partem rule. There is no indication of a change on the facts, of impropriety or of a violation of the principles governing institutional consultation. The change in the decision of the panel concerned a matter of law and policy.
This case reveals a tension between the fairness of the process and the principle of deliberative secrecy which plays an important role in safeguarding the independence of administrative adjudicators. Deliberative secrecy also favours administrative consistency by granting protection to a consultative process. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency. Consistency and independence come at the price of a less open process and difficulty in building the evidentiary foundation to prove alleged breaches of natural justice. However, a court cannot reverse the presumption of regularity simply because of a change in reasons for a decision in the absence of any further evidence.
Although the appellant failed to ask for reconsideration, reconsideration did not constitute an absolute prerequisite to judicial review.
Per Major and Binnie JJ. (dissenting): This appeal tests the limits of the rule that panel members can consult a full board on matters of law or policy but not of fact. The concept of “policy” has been stretched beyond its breaking point in this appeal and the principle that “he who hears must decide” should be vindicated. IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, should not be interpreted to authorize a full board to micro-manage the output of particular panels to the extent evident in this case. Compliance with the rules of natural justice raises a legal issue and the standard of review is correctness.
The procedure in this case violated the requirement that a full board can only discuss policy and law. Although the issue of “abandonment”, when considered in the abstract, has a policy component, the change in the panel’s reasons was a re-assessment of fact. The Board's jurisprudence has developed the legal and policy content of the concept of abandonment of bargaining rights in terms of active promotion of rights and it was for the panel to determine in the factual context of this particular case whether this standard was met. The panel made it clear that it considered abandonment to be an issue of fact. The Board's policy was never in doubt and was defined in the same language in the initial and final decisions.
The undisputed evidence is that the initial decision held as a fact that the union had abandoned its bargaining rights, the final decision held as a fact that it had not, and the intervening event was the full Board meeting. The reasonable inference is that factual matters were referred for discussion at the full Board meeting.
While the finding of testimonial immunity prevents determining the Board's decision-making process, it does not prevent the appellant from establishing a basis for judicial review. The Board cannot rely on legislation to deny all legitimate access to relevant information and then rely on the absence of the information as a conclusive answer to the complaint. The difficulties of proof presented in this case should be factored into the evidentiary burden of proof placed on the appellant.
The Ontario Court of Appeal considered the Board's proceedings to be protected by the “presumption of regularity”. The strength of the evidence necessary to displace this presumption depends on the nature of the case and, having regard to the difficulties of obtaining evidence, the appellant should be held to have discharged its evidentiary onus. The Board has to live with the reasonable inference that the full Board meeting influenced a reversal of fact-driven issues. There is a public interest in the integrity of decision-making at stake and the appellant has made out a prima facie case for judicial review. As the Board's procedure violated the principles of natural justice, the resulting order was made without jurisdiction and should be set aside despite the existence of privative clauses.
Cases Cited
By LeBel J.
Applied: IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; referred to: Khan v. College of Physicians & Surgeons of Ontario (1992), 94 D.L.R. (4th) 193; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; Lorne’s Electric, [1987] OLRB Rep. 1405; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Valente v. The Queen, [1985] 2 S.C.R. 673; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
By Binnie J. (dissenting)
IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Marvel Jewellery Ltd., [1975] OLRB Rep. 733; Accomodex Franchise Management Inc., [1993] OLRB Rep. 281; R. Reusse Co., [1988] OLRB Rep. 523; Vieczorek v. Piersma (1987), 36 D.L.R. (4th) 136; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Université du Québec à Trois‑Rivières v. Laroque, [1993] 1 S.C.R. 471; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602.
Statutes and Regulations Cited
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
Labour Relations Act, 1995, S.O. 1995, c. 1, ss. 9(1), 17, 69, 76, 114(1), 116, 117.
Labour Relations Act, R.S.O. 1990, c. L.2, ss. 108, 111 [am. 1992, c. 21, s. 45].
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book (loose‑leaf updated May 2000, release 13).
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada, vol. 2. Toronto: Canvasback (loose‑leaf updated July 2000, release 2‑2000).
Hawkins, R. E. “Behind Closed Doors II: The Operational Problem — Deliberative Secrecy, Statutory Immunity and Testimonial Privilege” (1996), 10 C.J.A.L.P. 39.
Janisch, H. N. “Consistency, Rulemaking and Consolidated‑Bathurst” (1991), 16 Queen’s L.J. 95.
Lemieux, Denis. “L’équilibre nécessaire entre la cohérence institutionnelle et l’indépendance des membres d’un tribunal administratif: Tremblay c. Québec (Commission des affaires sociales)” (1992), 71 Can. Bar Rev. 734.
Mullan, David J. “Policing the Consolidated‑Bathurst Limits — Of Whistleblowers and Other Assorted Characters” (1993), 10 Admin. L.R. (2d) 241.
Sack, Jeffrey, C. Michael Mitchell and Sandy Price. Ontario Labour Relations Board Law and Practice, vol. 1, 3rd ed. Markham, Ont.: Butterworths (loose‑leaf updated August 2000, release 14).
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Wade, William, Sir, and Christopher Forsyth. Administrative Law, 7th ed. Oxford: Clarendon Press, 1994.
APPEAL from a judgment of the Ontario Court of Appeal (1998), 38 O.R. (3d) 737, 108 O.A.C. 301, 6 Admin. L.R. (3d) 187, affirming a decision of the Divisional Court (1995), 89 O.A.C. 45, [1995] O.J. No. 3924 (QL), dismissing the appellant’s application for judicial review. Appeal dismissed, Major and Binnie JJ. dissenting.
Earl A. Cherniak, Q.C., and Kirk F. Stevens, for the appellant.
Sheila R. Block and Andrew E. Bernstein, for the respondent Ontario Labour Relations Board.
Alan M. Minsky, Q.C., and Susan Philpott, for the respondent International Brotherhood of Electrical Workers, Local 894.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Arbour and LeBel JJ. was delivered by
LeBel J. –
I. Introduction
1 The main issue raised by this appeal is whether the rules of natural justice were breached by the Ontario Labour Relations Board (“OLRB” or “Board”) when a three-member panel of the Board upheld a grievance filed by the respondent International Brotherhood of Electrical Workers, Local 894 (“Union” or “IBEW, Local 894”) against the appellant Ellis-Don Limited. The question of the breach of the rules of natural justice arose when the appellant learned that a first draft of the decision would have dismissed the grievance and that a full Board meeting had been held during which this draft was discussed. The appellant suggests that the differences between the draft and the final decision that allowed the grievance are the result of a change in the assessment of the facts. Ellis-Don alleges that this constitutes sufficient evidence that factual matters were discussed at the full Board meeting, in violation of the rules established by this Court in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
II. The Facts
2 This matter has a long history and is closely tied to the evolution of the labour relations system in the Ontario construction industry and to its move towards a more centralized collective bargaining system. In 1962, Ellis-Don was a very active general contractor, but was entering the Toronto market for the first time. A system of local collective bargaining prevailed in the construction industry at this time. Ellis-Don entered into a “Working Agreement” with the Toronto Building and Construction Trades Council (“Council”), in which Ellis-Don agreed to employ only members of the unions affiliated with the Council and to contract or subcontract only to individuals or companies whose employees were members in good standing in the unions affiliated with the Council. The Working Agreement provided for automatic renewals unless notice of termination was given (such notice was never given).
3 Local 353 of the International Brotherhood of Electrical Workers (“IBEW, Local 353”) was affiliated with the Council. It was and still is the IBEW local with jurisdiction in the Toronto area (the respondent Union, Local 894, was not yet a member of the Council in 1962).
4 In 1971, the Electrical Contractors Association of Toronto applied to the OLRB to be certified as a bargaining agent for the electrical contractors of Toronto. According to the regulations then in force, upon filing of that application by the employers’ association, the IBEW, Local 353 had to list the employers in respect of which they claimed to hold bargaining rights on a form known as Schedule F.
5 IBEW, Local 353 failed to list Ellis-Don as an employer in the form it filed in response to the application of the Electrical Contractors Association of Toronto.
6 In 1978, there was a move towards a province-wide bargaining scheme in the industry. The jurisdiction of the Council was extended to include Central Ontario in 1979. Local 894 of the IBEW became affiliated with the Council. By amending legislation, the bargaining rights of the IBEW, Local 353 in respect of Ellis-Don’s employees were to be extended to Local 894, provided those bargaining rights had not been abandoned by Local 353 prior to the introduction of the province-wide bargaining scheme.
7 On January 12, 1990, the Union filed a grievance with the Board, alleging that the appellant had subcontracted electrical construction work to non-union electrical subcontractors, contrary to the provisions of the provincial collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, the IBEW, and the IBEW Construction Council of Ontario representing its affiliated local unions.
8 A three-member panel of the OLRB presided over by Vice-Chair Susan Tacon heard the grievance. The appellant did not dispute that it had subcontracted some work to non-union electrical contractors. However, it argued that it was not bound by the provincial agreement because the IBEW, Local 353 had abandoned its bargaining rights prior to the introduction of the province-wide bargaining scheme, when it failed to include the name of Ellis-Don in Schedule F of the accreditation proceedings of the Electrical Contractors Association of Toronto. According to Ellis-Don, this omission and the IBEW, Local 894's failure to call evidence to explain it, demonstrated either that the IBEW, Local 894 in fact recognized that it did not hold bargaining rights on behalf of the appellant’s employees or that these bargaining rights had been abandoned.
9 After the hearing of the grievance, a draft decision was prepared by Vice-Chair Tacon. This draft proposed to dismiss the grievance on the ground that the IBEW, Local 353 had failed to list Ellis-Don on Schedule F at the time of the certification proceedings of the Electrical Contractors Association of Toronto and was thus deemed to have abandoned its bargaining rights with respect to the appellant:
Local [8]94, the applicant herein, called no evidence to explain the failure of Local 353 to include Ellis-Don on schedule F, as would be expected if the union in the accreditation application thought it possessed bargaining rights vis-à-vis Ellis-Don. Absent an explanation, the most reasonable inference is that the union in the accreditation application assumed it did not possess such bargaining rights in 1971, when the accreditation application was filed. In effect, the union was asserting it did not have bargaining rights for Ellis-Don. The respondent union in the accreditation application must be taken to have abandoned whatever bargaining rights it possessed as against Ellis-Don at the latest by that point. The mere use by Ellis-Don of union electrical subcontractors is not tantamount to granting voluntary recognition anew once the bargaining rights created by the working agreement were extinguished.
The consequences of the Board’s finding that bargaining rights had been abandoned by Local 353 IBEW prior to 1978 is that that trade union cannot “plug into” the province‑wide scheme so that the issue of abandonment post 1978 does not arise. Local [8]94, the applicant in the instant grievance referral, relies on that province‑wide scheme to acquire the bargaining rights which it seeks to enforce against Ellis‑Don. In the Board’s view, no such rights were held by Local 353 in 1978 so that the legislation in 1978 and the subsequent amendments could not extend any bargaining rights to Local [8]94. [Emphasis added.]
10 The draft decision was circulated among all the members of the OLRB and Vice-Chair Tacon called a full Board meeting to discuss its implications. It appears that this meeting was held on January 27, 1992.
11 On February 28, 1992, the Board released its final decision, upholding the grievance (Board member Trim dissenting): [1992] OLRB Rep. 147. The majority found that there had been no abandonment of bargaining rights by the Union in spite of the omission of Ellis-Don from schedule F (at para. 54):
The absence of evidence to explain the omission of Ellis-Don from the schedule F filed by Local 353, IBEW in the accreditation application is of concern to the Board. The question for the Board is whether this omission, of itself, is sufficient, in the context of all the other circumstances, to cause the Board to conclude that Local 353 had abandoned the bargaining rights it had earlier obtained. The omission of Ellis‑Don’s name is not inconsistent with abandonment and, thus, may signify what respondent counsel asserts. However, that omission is also consistent with an assumption on the part of the Local that the accreditation application affected only specialty contractors or that schedule F speaks only to employers for whom the Local held bargaining rights but who had had employees in the past (albeit not within the previous year). It appears (and there is no cogent evidence to suggest otherwise) that the employer association represented specialty electrical contractors, not general contractors. In that context, the name of Ellis‑Don may have been omitted, in the respondent union’s reply, as apparently were the names of other general contractors who had signed the working agreement, to reflect the framing of the original application. The question is not what is the most reasonable or a reasonable inference from the omission of Ellis‑Don’s name but whether the omission signifies abandonment. In the Board’s opinion, it is more probable than not that the omission of Ellis‑Don’s name from schedule F did not reflect an abandonment of bargaining rights. As well, the context of a consistent pattern of Ellis‑Don’s subletting electrical work to "union" contractors prior to the accreditation application, although not necessarily conclusive proof of the existence of bargaining rights (see paragraph 46 above), cannot be ignored. Given the Board's finding that the working agreement was duly executed by the parties and constituted a series of voluntary recognition agreements, including the voluntary recognition of Local 353, and given that the working agreement was never terminated but, rather, that at least with respect to the subcontracting of electrical work, Ellis‑Don fully complied with that agreement for many years with Ellis‑Don receiving the advantages of the working agreement during that period, the Board is not satisfied, as a matter of fact, that the bargaining rights of Local 353 were abandoned because of the omission of Ellis‑Don’s name from schedule F. In short, considering all the circumstances, the Board does not find that Local 353 abandoned its bargaining rights prior to the introduction of province‑wide bargaining. [Emphasis added.]
12 A few weeks later, in March 1992, a retired member of the OLRB handed over to Ellis-Don a copy of the draft that had been circulated to all members of the Board. From the same source, Ellis-Don also learned that a full Board meeting had been held at the request of Vice-Chair Tacon to consider the draft decision.
13 Ellis-Don claimed that there was a breach of natural justice and that jurisprudential rules governing institutional consultations had been violated. Without asking for reconsideration of the decision, it applied for judicial review. According to the appellant, the change between the draft decision and the arbitration award ultimately released by the Board was of a factual nature as opposed to a legal or policy change. This indicated that facts had been discussed at the full board meeting, contrary to the principles established by this Court in Consolidated-Bathurst, supra.
14 Prior to the hearing of the application for judicial review, the appellant sought an interlocutory order to stay the decision of the OLRB; it also requested that several members of the Board be summoned for examination before an official examiner and that certain documents be produced. In July 1992, Steele J., of the Ontario Divisional Court, granted an order compelling members of the Board to appear before an official examiner, but refused to stay the decision and to order the production of documents: (1992), 95 D.L.R. (4th) 56. In January 1994, a three-judge panel of the Divisional Court reversed the decision of Steele J. and decided that the members of the Board could not be compelled to appear before an official examiner: (1994), 16 O.R. (3d) 698. The Divisional Court based its decision on the common law rule respecting the compellability of administrative tribunal members and on s. 111 of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 (now S.O. 1995, c. 1, s. 117). Leave to appeal this decision was denied by the Ontario Court of Appeal in June 1994 and by the Supreme Court of Canada in January 1995, [1995] 1 S.C.R. vii.
15 On December 20, 1995, the Divisional Court dismissed the appellant’s application for judicial review. A unanimous Court of Appeal confirmed this judgment in April 1998.
III. Relevant Statutory Provisions
16 Labour Relations Act, 1995, S.O. 1995, c. 1
114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [Previously s. 108 of the Labour Relations Act, R.S.O. 1990, c. L.2.]
117. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
IV. Judicial History
A. Divisional Court (Decision on the Application for Judicial Review) (1995), 89 O.A.C. 45
17 The court dismissed the application for judicial review. Adams J., writing for the panel, found that the difference between the draft and the final decisions reflected a change in the applicable policy or legal standard, but not a new determination of the facts. Adams J. noted that the fact that IBEW, Local 353 had omitted Ellis-Don’s name from Schedule F of the accreditation proceedings of the Electrical Contractors Association of Toronto and the fact that this association represented specialty electrical contractors, not general contractors, remained unchanged between the draft decision and the final award. For Adams J., the Board simply had to decide whether the omission, in and of itself, dictated the conclusion of abandonment. He wrote (at p. 55):
This determination had a substantial and obvious policy component, notwithstanding the particular manner in which the panel expressed itself. In this sense, it involved a matter which could be addressed at a level of principle without offending the requirements of natural justice.
18 Adams J. listed several policy options open to the Board: (i) the omission could constitute per se evidence of abandonment; (ii) the omission could give rise to a rebuttable presumption of abandonment (thus requiring an explanation from the IBEW, Local 894); (iii) the omission could constitute a factor to be considered along with the rest of the evidence before the Board; or (iv) the omission could be irrelevant to the issue of abandonment. Adams J. concluded that the Board had determined that the omission was a factor to be considered, without being determinative in the circumstances, even in the absence of an explanation from the IBEW, Local 894.
19 Adams J. noted that the conclusion of the arbitration award was consistent with the unlikelihood that the Union intended to abandon its bargaining rights and with the case law and policy of the Board which required unequivocal evidence that a trade union has “slept on its rights” (p. 56). Accordingly, Adams J. found that there was no basis to infer that members of the Board who were not on the hearing panel might have participated in the panel’s fact-finding. Adams J. referred to the decision of the Ontario Court of Appeal in Khan v. College of Physicians & Surgeons of Ontario (1992), 94 D.L.R. (4th) 193, to support the idea that modern decision-making cannot be made in complete isolation. Adams J. explained that, if the appellant suspected that there had been a discussion of factual issues at the full Board meeting, it should, at least as a matter of courtesy, have given the Board an opportunity to explain itself by seeking reconsideration. Finally, in the opinion of Adams J., the decision of the Board was not patently unreasonable.
B. Court of Appeal (1998), 38 O.R. (3d) 737
20 A unanimous Court of Appeal dismissed the appeal. It held that the appellant had not established that the change in the panel’s decision was the consequence of interference by the full Board in the panel’s fact-finding process. A review of the record revealed that the possibility of interference by the full Board on factual matters amounted to little more than speculation. The court was satisfied that the change was the result of the application of a different legal standard to the facts introduced in evidence before the panel.
21 The court held, at p. 740, that the panel had not speculated on the intention of the IBEW, Local 353 in omitting the appellant’s name from Schedule F:
The fact of the omission, that the employer association involved in the application represented special electrical contractors, not general contractors, that Ellis-Don is a general contractor who had signed the provincial working agreement, that other general contractors who had signed the agreement were also omitted from Schedule F, that Ellis-Don obtained the benefit of the agreement and that it had used only unionized electrical contractors until the grievance gave rise to this dispute, were all in evidence and were not speculation.
22 The Court of Appeal also found that the Divisional Court had correctly refused to draw an adverse inference from the Board’s refusal to disclose the internal deliberations which took place at the full Board meeting. According to the Court of Appeal, a presumption of regularity applied, as there was no evidence that the procedure at the full Board meeting in question departed from its usual practice, whereby discussion was limited to the policy implications of a draft decision. The mere fact that the construction panel had changed its conclusion could not give rise to an inference that the Board had acted improperly during the consultation process.
V. The Issues
23 This appeal does not challenge the legality of an institutional consultation process within administrative bodies like the OLRB. Moreover, there has been no suggestion that the Court should revisit the rules established in Consolidated-Bathurst, supra, and Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952. At issue in this appeal is whether the Board complied with these rules when it held the full Board meeting and discussed the grievance against Ellis-Don. This requires us to discuss the nature of the evidentiary burden on a party applying for judicial review because of an alleged breach of natural justice.
24 The appellant submits several closely linked propositions. First, it asserts that the change in the final decision was of a factual nature and that this is sufficient to prove that factual matters were discussed at the full Board meeting. The appellant also contends that the Court should intervene as the change raises a reasonable apprehension of a breach of natural justice. It suggests that the refusal of the Board to offer evidence about its internal decision proceedings gave rise to the application of a presumption of irregularity that would permit courts to imply that there has been improper tampering with the evidence during the full Board conference.
25 The Court also has to decide whether the appellant’s failure to ask for reconsideration of the Board’s decision constitutes a bar to judicial review.
VI. Analysis
A. The Rules Concerning Institutional Consultation
26 The problems relating to procedures of institutional consultation within administrative bodies have been thoroughly canvassed in the reasons of Gonthier J. in Consolidated-Bathurst, supra, and Tremblay, supra. A mere reminder of the principles set out in these decisions will suffice here to deal with the main legal issues presented by this case.
27 In the Consolidated-Bathurst case, the legality of institutional consultation procedures within administrative bodies had been put in doubt for two reasons. First, it was argued that these procedures created a reasonable apprehension of bias and lack of independence on the part of the adjudicators. The members of an administrative body hearing a case might be subject to undue pressure from other colleagues or from their hierarchical superiors. These pressures would come from persons who would not have heard the evidence nor the arguments of the parties, and would nevertheless be in a position to influence the final decision. Second, it was suggested that these consultations also breached the audi alteram partem rule, as new arguments might be raised during the full Board discussion without being communicated to the parties.
28 Writing for the majority, Gonthier J. recognized the legitimacy of institutional consultations to ensure consistency between decisions of different adjudicators or panels within an administrative body. Indeed, the critical nature of this procedure was underlined later by the judgment of this Court in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756. Writing for a unanimous Court, L’Heureux-Dubé J. observed that ensuring the consistency of decisions of administrative bodies or tribunals was not a proper function of judicial review by superior courts. Inconsistencies or conflicts between different decisions of the same tribunal would not be reason to intervene, provided the decisions themselves remained within the core jurisdiction of the administrative tribunals and within the bounds of rationality. It lay on the shoulders of the administrative bodies themselves to develop the procedures needed to ensure a modicum of consistency between its adjudicators or divisions (Domtar, supra, at p. 798).
1. Apprehension of Bias or Lack of Independence
29 In Consolidated-Bathurst, supra, Gonthier J. examined whether the existence of this kind of institutional consultation procedure in itself created an apprehension of bias or lack of independence as Sopinka J. feared in his dissent. According to Gonthier J., such a procedure would not of itself raise such an apprehension, provided it was designed to safeguard the ability of the decision-maker to decide independently both on facts and law in the matter. Gonthier J. laid down a set of basic principles to ensure compliance with the rules of natural justice. First, the consultation proceeding could not be imposed by a superior level of authority within the administrative hierarchy, but could be requested only by the adjudicators themselves. Second, the consultation had to be limited to questions of policy and law. The members of the organization who had not heard the evidence could not be allowed to re-assess it. The consultation had to proceed on the basis of the facts as stated by the members who had actually heard the evidence. Finally, even on questions of law and policy, the decision-makers had to remain free to take whatever decision they deemed right in their conscience and understanding of the facts and the law, and not be compelled to adopt the views expressed by other members of the administrative tribunal. Provided these rules were respected, institutional consultation would not create a reasonable apprehension of bias or lack of independence.
30 It is noteworthy that also at issue in the Consolidated-Bathurst case were the consultation proceedings followed within the OLRB. The majority decided that such procedures did not create a reasonable apprehension of bias or lack of independence.
31 The principles developed in Consolidated-Bathurst were also applied in the later case of Tremblay, supra. In the Tremblay case, the Supreme Court of Canada considered that the consultation procedures were imposed from above on the decision- makers and that they were so formalized that they became binding on the triers of facts, therefore compromising their independence.
2. Audi Alteram Partem
32 The other issue in Consolidated-Bathurst concerned the impact of the consultation proceeding on the application of the audi alteram partem rule. The reasons of Gonthier J. conceded that there existed risks in that regard, but held that they could be addressed by ensuring that the parties be notified of any new issue raised during the discussion and allowed an opportunity to respond in an effective manner. The mere fact that issues already litigated between the parties were to be discussed again by the full Board would not amount to a breach of the audi alteram partem rule.
33 Provided these rules were complied with, the adjudicators retained the right to change their minds and to modify a first draft of a decision. Such changes would not create a presumption that something improper had occurred during the