The Christian Labour Association of Canada’s (CLAC) application to quash a resolution adopted by the City of Toronto Council has been dismissed by the Ontario Superior Court of Justice.
The June 2019 resolution directed staff to enter into negotiations for a voluntary recognition agreement with the Labourers’ International Union of North America (LIUNA). The matter was heard in court April 20.
“We’re obviously disappointed by that outcome,” Ian DeWaard, CLAC provincial director, said in an email to the Daily Commercial News. “CLAC maintains that Toronto City Council’s resolution to enter into a voluntary recognition agreement with LIUNA was unreasonable and is unfair to workers and taxpayers. We intend to keep up our efforts to ensure that workers aren’t discriminated against on the basis of union membership in the City of Toronto. We are currently working with legal counsel to determine how this matter might be placed before the Ontario Labour Relations Board for consideration.”
Entering the agreement means LIUNA will be added to a list of unionized trades eligible to bid on ICI work with the city. It also means CLAC is not eligible to bid or work on major projects in the city such as libraries, waste and water treatment plants and community centres, the association states.
“We allege that it’s an unreasonable exercise of council authority, that it’s discriminatory and that it sets up a class of people with an exclusive privilege against others in a way that violates the city’s obligations under the Toronto Act and its own bylaws and procurement policies,” said DeWaard.
“What we were challenging was the decision that was made contemporaneously that day without notice and without opportunity for consultation to not only opt out of Bill 66 but go one step further and bind themselves to LIUNA for ICI work that the city tenders.”
The judge, however, disagreed with CLAC’s arguments.
“There is no voluntary recognition agreement in existence yet for the board to assess,” reads the endorsement issued by Judge J. Myers. “The applicant’s argument about the purpose and effect of the resolution and the proposed voluntary recognition agreement really go to questions of whether a voluntary recognition agreement, if one is signed, is reasonable or ought to be recognized under the Ontario Labour Relations Act. Those are not questions of the vires of the resolution under s. 214 of the City of Toronto Act, 2006.”
The endorsement notes the city has any number of exclusive bargaining relationships with other unions as well.
“It is not the court’s role in an application of this type to consider the reasonableness of the city’s decision to cozy up to one particular union to the exclusion of others. The sole issue is whether the city has the authority under its constating statute to pass the resolution. Section 8 of the statute leaves no doubt that the city has authority to pass bylaws respecting construction projects that it may wish to undertake.”
Paul Cavalluzzo was the intervenor for LIUNA. Sean McFarling, general counsel, LIUNA OPDC and LIUNA CECOF, said LIUNA decided to intervene because the matter directly affected the union.
“We are very happy with the result,” he said. “We opposed CLAC’s application as being without merit and supported the city’s decision to remain a construction employer and voluntarily recognize LIUNA along with all the other Building Trades it agreed to continue to recognize.”
The city passed the resolution the same day that it decided to opt out of Bill 66, the Restoring Ontario’s Competitiveness Act, which amends the Labour Relations Act, 1995 to deem public bodies, including municipalities, as “non-construction employers,” allowing them to open up the tendering process to all qualified bidders.
“I do not agree that the city’s resolution was an improper ‘third option’ when it decided to continue to be bound by province-wide collective agreements regarding construction in the ICI sector,” the decision states. “It made two decisions on the same day. One was authorized under the recent amendment to the Ontario Labour Relations Act. The other was authorized under section 8 of the City of Toronto Act, 2006. Nothing makes that improper or illicit.”
McFarling said the city committed to enter the agreement with LIUNA because it’s the largest construction union in Canada and in Toronto, offers a well–trained workforce and are actively engaged in community benefits programs.
In response to claims that being affiliated with certain unions is not “fair” and stifles competition he said “one narrative that I find particularly egregious in terms of how misleading it is, it’s the notion that the city is required to pay a premium set by the union, like we are the employer,” McFarling explained, adding the city is also bound to nine other unions. “That’s not the way it works. The city puts a tender out for contracts, employers bid on those contracts. The employers set the price not the union. The union sets the price of labour with the employer.”
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