Filling in the Blanks: EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801
Here is an interesting variant on the ‘reasonable decision but dodgy reasoning’ problem I have raised recently: what if an administrative decision-maker takes a decision that is supported by statutory authority, but fails to mention the statutory authority in question? This is the scenario in EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801 (I criticized an aspect of the judgment under appeal here). Here is what Lauwers J.A. had to say:
 In my view, the majority of the Divisional Court took too formalistic a view of the Board’s decision on the admissibility of the SWA. A reviewing court is obliged to discern the tribunal’s implicit reasons, having regard to the context and the evidentiary record, where the express reasons fall short. As Hourigan J. explained, the entire thrust of the Board’s analysis of the SWA as a business record and as an ancient document was aimed at determining its authenticity and reliability. It was appropriate to invoke the Board’s statutory discretion under ss. 48 and 111 of the OLRA in concluding the Board was justified in admitting the SWA. Doing so was entirely consistent with the approach taken by the Supreme Court in both Dunsmuir and Newfoundland Nurses.
 I also observe that as a matter of logic, the tests considered by the Board for admitting the SWA as a business record or as an ancient document were more rigorous than any test under ss. 48 and 111 of the OLRA. While the business records and ancient documents rules impose a set of requirements that must be satisfied in order for a document to be admitted in a court of law, the relevant OLRA provisions allow an arbitrator or the Board to use its discretion to moderate any strict legal requirements. One could easily infer that the Board was exercising this moderated authority when it noted, at para.15, that: “Some of this argument [by EllisDon] is an excessively exacting application of the standards set by section 35 [of the Evidence Act].” Given that the Board determined the SWA was admissible on the more exacting legal standards, it is reasonable for this court to infer that it would have invoked its discretionary authority to admit the SWA into evidence, had it occurred to the Board as being necessary in light of its substantive admissibility decision.
I am not sure I agree with this. Failing to state the statutory authority on which you are acting is a fairly serious mistake, in my view, and one that should be subject to censure by a reviewing court. The failure suggests that the parties before the decision-maker did not have a clear view of what the decision-maker was likely to do, thereby inhibiting their ability to make appropriate submissions.
One might respond that it would be pointless to quash the decision and send it back. Even if this is true, Lauwers J.A.’s analysis belongs more properly under the heading of remedial discretion, and should not be taken as excusing the defect in the decision-maker’s reasoning process.
The merits of the case are interesting. A long-forgotten labour relations agreement obliges E to hire unionized workers. It was dug up during a labour dispute and now E is faced with the prospect of being at a serious competitive disadvantage. It argued that the unions should be permanently estopped from enforcing this old agreement. An estoppel was granted, but only temporarily. The Divisional Court held this to be unreasonable, finding that a permanent estoppel had to be ordered. But Lauwers J.A. disagreed:
 The Divisional Court’s finding that the Board’s remedy was unreasonable is based on its political prognostication that EllisDon’s efforts to achieve a legislative limitation on the SWA would not succeed in the present political climate. With respect, however, in our understanding of the doctrine of separation of powers, it is not the court’s function to exercise judicial authority based on political prognostication. The problem in this case is statutory and legislative, as is any possible permanent solution. The Board recognized that it had the mandate under the OLRA to reach a decision that would respect the provisions of the OLRA as well as the legislative process. It imposed a time-limited estoppel to allow that process to unfold, while saving EllisDon harmless temporarily. That remedy was not unreasonable and judicial deference is due.
This content has been updated on November 21, 2014 at 15:24.