Labourers’ International Union of North America, Local 183 v Toure Cleaning Services Ltd.

ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 3094-19-R

Labourers’ International Union of North America, Local 183, Applicant v

Toure Cleaning Services Ltd., and The Regional Municipality of

Durham, Responding Parties v Canadian Union of Public Employees and

its Local 1764, Intervenor

BEFORE: Kelly Waddingham, Vice-Chair

APPEARANCES: Amanda Laird and Aruna Vithiananthan appearing for

Labourers’ International Union of North America, Local 183; Rebecca Liu

and Abdoulaye Toure appearing for Toure Cleaning Services Ltd.; Kelly

McDermott and Kira Clarke appearing for The Regional Municipality of

Durham; Saranjit Singh Cheema appearing for Canadian Union of Public

Employees and its Local 1764

DECISION OF THE BOARD: January 14, 2022

This is an application under subsection 1(4) of the Labour

Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “Act”). The

Applicant, the Labourers’ International Union of North America, Local

183 (“LIUNA” or the “Union”) seeks a declaration that the Responding

Parties, Toure Cleaning Services Ltd. (“Toure”) and the Regional

Municipality of Durham (“Durham Region” or the “Region”) constitute

one employer for the limited purpose of adjudicating and enforcing the

termination grievances of two individuals formerly employed by Toure.

BACKGROUND

Toure Cleaning Services is a janitorial services provider based

in Ajax, Ontario. It was founded by Abdoulaye Toure in 2014. Of its

approximately 250 employees, 20 work at Durham Region

headquarters.

Toure employees at Region headquarters are

represented by LIUNA, Local 183.

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Durham Region is an “upper tier” municipality with a population

of approximately 700,000. It has the capacity of a body corporate

pursuant to the Municipal Act, 2001, S.O. 2001, c. 25. The Region

provides a wide range of services, and employs more than 4,500 people.

It is a party to twelve different collective agreements and a number of

contracts with private sector vendors (unionized and non-unionized).

The Region has its headquarters (“HQ”) at 605 Rossland Road

East, Whitby. HQ consists of a six-storey building and an annex. The

Region employs its own cleaners at the facility. The Region’s cleaners

are represented by the Canadian Union of Public Employees, Local 1764

(“CUPE”). The Region also contracts with a private sector janitorial

services company for cleaning services at HQ. Since May 2018, the

contract for cleaning services at HQ has been held by Toure.

Kimberly Hosey and Nhattan Lam are former employees of

Toure. They worked as nighttime cleaners at Region HQ. In December

2019, both cleaners were subject to a request by the Region that they

be removed from the Region’s cleaning contract with Toure. Both were

dismissed from their employment with the Toure on the same day that

the Region requested their removal. The Union filed grievances against

Toure on their behalf, alleging unjust dismissal. The grievances

proceeded to arbitration, and were scheduled to be heard by Arbitrator

Kevin Burkett. The grievances are being held in abeyance pending the

outcome of this proceeding.

The instant application was filed on February 4, 2020. It was

accompanied by an unfair labour practice complaint (Board File No.

0009-20-U) alleging that Toure (and the Region) violated sections 70

and 72 of the Act by using their commercial contract to assist Toure in

avoiding its obligations under its collective agreement with LIUNA.

LIUNA initially sought to have this application and a similar

application filed on February 6, 2020 (LIUNA, Local 183 v. Nova Services

Group Inc. and Hellenic Home for the Aged Inc., Board File No.

3113-19-R) heard together or in seriatim, on the basis that the two

applications were based on similar facts and requested similar remedies.

In a decision dated May 11, 2020, the Board denied the Union’s request.

The applications thus proceeded independently of one another.

In a decision dated January 20, 2021 (Nova Services Group Inc.

– Compass Group Inc., 2021 4238), the Board dismissed LIUNA’s

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application pertaining to Nova Services Group and Hellenic Home for the

Aged on the basis of a preliminary objection made by the responding

parties. Pursuant to Rule 39.1 of the Board’s Rules of Procedure, the

Board determined that the application did not make out a case for the

relief sought by LIUNA. It found that Nova-Compass and Hellenic do not

operate under “common control or direction” within the meaning of

subsection 1(4) of the Act, and that the mischief a subsection 1(4)

declaration is intended to remedy was not present in the circumstances

of the case. The Board also stated that it would not have made the

declaration sought because of the potential conflict of bargaining rights

between LIUNA and CUPE, Locals 4829 and 4830 (the bargaining agents

for employees of Hellenic Home).

A Case Management Hearing in respect of the instant

application was held on January 22, 2021. Following the hearing, the

Board issued a decision setting out a timetable for the submission of

documents by the parties (A Statement of Agreed Facts and witness

declarations) and a hearing schedule. Hearings were held (via Zoom)

on May 25, June 9, June 15, and August 4, 2021.

FACTS

Some of the facts relevant to the determination to be made here

are set out in the Statement of Agreed Facts. Additional facts were

provided by the parties’ witnesses. Evidence “in-chief” was adduced via

declarations attested to by the witnesses. The witnesses were then

subject to cross-examination on the evidence set out in their

declarations, followed by re-examination. Evidence for the Region was

provided by: Devi Richards, Maintenance Projects and Contract

Administration Supervisor; John Robinson, Supervisor of Facilities –

Custodial and Contract Services; and Chris Mauceri, Facilities Technician

and Night Shift Lead Hand. Evidence for Toure Cleaning Services was

given by Abdoulaye Toure, Founder and Owner, and Kevin Wright,

(former) Area Supervisor for Toure. Humberto Alferez, Assistant Sector

Coordinator for LIUNA, Local 183, Kimberley Hosey, and Nhattan Lam

gave evidence for the Union. The parties provided a Joint Book of

Documents.

Two individuals who were involved in the events described in

the evidence were not called upon to testify. They are Nathan Forrester,

Works Technician for the Region, and Leigh Macdonald, Night Shift Lead

Hand for Toure.

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Through the Statement of Agreed Facts and the declarations of

Mr. Robinson, Mr. Wright and Mr. Alferez, evidence was led regarding a

change to the work schedule of Joanne Thompson, a former Toure

employee working at HQ. As that evidence was not subject to cross-

examination, was not relied upon in the parties’ arguments, and is

unrelated to the remedy sought in this application, it will not be included

in the summary of evidence set out below.

The Commercial Contract

The Commercial Contract between the Region and Toure was

entered into following a competitive Request for Tender (“RFT”) process

that took place in or around May 2018 (the RFT bears the designation

“T-225A-2018”). The contract was for one year, with the option to

extend. The Region had no prior relationship with Toure. Until May

2018, the contract for cleaning services at HQ was held by Waterford

Services Inc. (“Waterford”). Waterford employees who worked at HQ

were represented by LIUNA, Local 183.

According to Ms. Richards the RFT and associated documents

are public documents that can be viewed by anyone with an interest in

the tendering process. LIUNA representative, Mr. Alferez acknowledged

that he did not know before participating in this proceeding that the

Commercial Contract is a public document. He also acknowledged that

the Union did not ask Waterford or Toure for a copy of the contract.

Section 1.1 of Part 1 of the RFT states: “The Region is seeking

Contractor(s) to provide all labour, materials, equipment, and the

supervision necessary to provide a complete janitorial services program

[…]” (Article 6.1 of Appendix D of the RFT includes an almost identically-

worded provision). In accordance with the terms of the contract, the

Contractor is paid an all-inclusive monthly rate.

Appendices A through D to the RFT effectively comprise the

document referred to here as the “Commercial Contract”. Appendix B

sets out the “terms and conditions” of the contract, and Appendix D sets

out “the deliverables”.

Some of the relevant provisions of the

Appendices will be set out here. Those relating to supervision and

direction of the Contractor’s employees will be set out in subsequent

sections of this decision.

Pursuant to Section 4 of Appendix D, the Region sets the

cleaning schedule and assigns the duties of – and the areas to be

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cleaned by – the Contractor’s employees. Section 4 provides: “the

Contractor is responsible for ensuring the completion of all cleaning

duties as assigned and highlighted in red and green in the site

drawings”. Section 4.2 requires the Contractor to adhere to the “fixed

cleaning schedule” established by the Region. The provision further

states that “[the] Region reserves the right to adjust the cleaning

schedule as required”. Section 4.10 provides that the Contractor is

responsible for providing all of the equipment necessary to perform the

contracted service(s), and for ensuring that the equipment is maintained

(or can be replaced) so as to “ensure uninterrupted cleaning at all

times”. The provision also states (in bolded text) that “[the] Region’s

policy is not to lend Contractors any tools or equipment”.

Section 7 of Appendix D sets out “performance measures during

the contract term”. Section 7.1 requires cleaning staff to “follow specific

schedules as directed by the Region via the Contractor’s supervisor”,

and states that “the Region reserves the right to adjust any schedules

for any reason”. Section 7.1 specifies that the Contractor is to provide

eight cleaners per shift (one of those being the shift Lead Hand). It goes

on to set out the expectations with respect to the cleaning of particular

areas, surfaces and furnishings in the building.

Section 7.1 also stipulates that the Region (via its Lead Hands)

oversees the Contractor’s cleaning operations to ensure that the

performance standards specified in the contract are met. Section 7.2

provides that “should cleaning not meet the Region’s requirements [as

described in Section 7.1], […] the Region’s Contract Administrator will

seek an immediate remedy from the Contractor’s Area Supervisor”. The

provision also stipulates that “[the] Contractor must have the ability to

respond to and rectify performance related issues within the same day

upon receiving the Region’s call”. The final paragraph of Section 7.2

sets out further expectations and rights of the Region regarding

performance under the contract. It reads:

At the request of the Region, the Contractor will provide

daily supervision, in addition to the shift lead hand until

which time the Region is satisfied that the service has

improved. If the Region remains unsatisfied with the

performance, the Region reserves the right to request an

immediate staffing change regardless of the Contractor’s

staffing protocols.

The Contractor must then provide

additional remedial cleaning services to bring it to standard

at no additional cost. Failure to respond or provide a remedy

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to the satisfaction of the terms of this contract will be

deemed Breach of Contract.

Section 7.5 of Appendix D – headed “Disciplinary Actions” – sets

out the Region’s rights in the event of “inappropriate or threatening

behaviour” by an employee of the Contractor. Section 7.5 provides:

Inappropriate or threatening behaviour of the Contractor’s

cleaning staff such as violence, rudeness, laziness, use of

profanity, inappropriate attire, unauthorized use of Regional

equipment (phones, fax, computers, copiers, etc.), fighting,

bringing unauthorized individuals or minors on Regional

property, stealing or damaging Regional property, not

following security protocols or being on Regional property

outside of approved hours for cleaning will be considered a

default […]. Based on the above reasons, the Region may

request an employee be removed from any Regional

properties and replaced immediately. Any such behaviour

will not be tolerated and may result in cancellation of the

contract.

According to Mr. Robinson, Sections 7.2 and 7.5 do not give the

Region direct authority to address performance issues or to take

disciplinary action against employees of the cleaning contractor.

Section 7.6 of Appendix D sets out the “Breach of Contract”

provisions of the Contract. It stipulates that the Contractor’s “failure to

deliver the scope of services within the quality parameters of the

Contract constitute [sic] a Breach of Contract and shall result in remedy

or Contract termination”. The events that will be considered breach of

contract include:



[Failure] to follow Security protocols and procedures

[Failure] to respond to Performance issues in accordance

with the Contract specifications



[Failure] to resolve repeated performance issues from

occurring [sic]

[Failure] to dispose of waste materials in the appropriate

waste bins

Any deficiencies in the Work identified by the Facilities

Supervisor or designate […] not corrected by the

Contractor in a timely manner



[Failure] to respond to extra work requests.

Section 7.6 proceeds to set out the financial penalties to which

the Contractor may be subject “where the Contractor has failed to

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remedy any deficiency related to meeting the minimum cleaning

requirements […]” and “where the Region calls on a third party to

perform the work […]”.

Sections 6.6 and 7.7 of Appendix D set out a requirement that

the contractor “provide detailed cleaning performance sheets formed by

the Contact specifications”. The sheets “incorporate the tasks to be

completed on every shift” and are to be “filled out by cleaning staff and

left for the site supervisor’s review on a weekly basis”.

Division of labour between staff cleaners and contractor cleaners

Article 4 of Appendix D of the Commercial Contract provides

that “there will be a combination of Regional cleaning staff and

Contractor cleaning staff working together at this site”. According to

Ms. Richards, contracted janitorial staff work at the same time, but

separately from, Regional cleaning staff. The work of the two groups

does not overlap and is not shared between them. The two groups do

not work in the same areas. Ms. Richards explained that all contracts

have consistent language pertaining to the scope of work, and typically

include “performance clauses”.

According to Mr. Robinson, Regional employees typically clean

terrazzo floors, meeting rooms, back room floors, staff offices, and

around workstations. Contracted staff, Mr. Robinson stated, generally

clean bathrooms, collect garbage, and vacuum and clean carpets. They

may also be asked to clean offices. The nighttime cleaners, he said,

usually clean the same areas every night (the cleaners’ “run”).

Mr. Robinson explained that nighttime cleaners do a mixture of light-

duty and heavy-duty cleaning that is “not optimal or safe to do when

the building is staffed”.

Supervision and direction of Toure employees at Region HQ

As set out above, provisions of the Commercial Contract specify

that the Contractor is required “to provide […] the supervision necessary

to provide a complete janitorial services program”. Section 4.6 of

Appendix D provides that “a dedicated shift lead hand is required for

each shift and will take direction from their area supervisor to review

the work of the Contractor’s cleaning staff”. It further states that “all

cleaning staff will report to this shift lead hand directly and not to

Regional staff”. The shift lead hand (presently a member of the LIUNA

bargaining unit) is, however, subject to supervision by the Region.

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Section 4 of Appendix D states: “the Contractor’s shift lead hand will

take direction by the Region’s lead hand to ensure consistency of service

in terms of but not limited to quality and completeness”. Similarly,

Section 4.6 provides: “The shift lead hand will work directly with the

Region’s lead hand to fulfill the requirements of this Contract”. Pursuant

to Section 3 of Appendix D, the Region prescribes the qualifications and

skills of the shift lead hand (as well as the “experience” qualification for

the Area Supervisor).

The Collective Agreement between Toure and LIUNA includes

terms addressing Toure’s right to manage its employees at Region HQ.

Article 5.01 of the Collective Agreement provides (in part):

The Union acknowledges and agrees that the Employer shall

continue to reserve all the rights, powers and authority to

manage and direct its working forces. Without restricting

the generality of the foregoing, such rights of the Employer

shall include the right to:

(a) Maintain order, discipline and efficiency;

(b) […] direct and supervise the workforce, hire, rehire, lay-

off, assign, discharge, suspend, transfer, classify,

promote, demote, determine work assignments,

discipline employees for just cause […];

(c) Generally to manage the industrial enterprise in which

the Employer is engaged, and to […] determine the

services to be rendered, to determine the kinds of

machines to be used, to determine the number of

workers required for any and all operations and the

location where employees are assigned to, to judge the

qualifications, ability and skills of employees, to assign

or reassign workloads, or to review work assignments or

hours-of-work at any time of employees, and to

introduce new or different systems of work and

equipment;

(d) Make and alter from time-to-time rules and regulations

governing the conduct of employees during working-

hours provided that such rules and regulations are not

inconsistent with the provisions of this Agreement.

The evidence of the witnesses regarding supervision and

direction of Toure employees working at Region HQ generally pertains

to supervision and direction of employees who worked the night shift.

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Full-time Toure employees worked from 11:00 P.M. to 7:00 A.M.,

Sunday night to Thursday night. Cleaners employed by the Region

worked the same hours. At the time this application was made, Kevin

Wright was Territorial Manager for Toure. He oversaw the work of Toure

employees working at several client facilities, including those working at

Region HQ. While he “gave directions and assignments” to Toure

employees at HQ, he was not generally at the facility more than twice a

week during the night shift. Work assignments and directions were

relayed to cleaners by the shift Lead Hand. Lead Hand is a position

within the LIUNA bargaining unit. During the period relevant to this

application, the night shift Lead Hand was Leigh Macdonald.

A meeting of all the cleaners (employees of both Toure and the

Region) is held at the start of each night shift. According to Ms. Hosey,

“supervisory staff” from both the Region and Toure attend the meetings.

Mr. Mauceri explained that the purpose of the meetings is primarily to

establish who will be in the building during the night (for fire safety

purposes) and whether the full staffing complement is present.

Ms. Hosey stated that she was also required to attend another staff

meeting held “every couple of months”. At those meetings, according

to Ms. Hosey, Mr. Robinson would address the staff of both employers.

Mr. Robinson testified that if there were any matters he wanted Toure

cleaners to know about (a change in policy, for example), he would

“invite” them to attend an all-employee meeting.

The Lead Hand is intended to be the first point of contact for

Toure cleaners having questions or problems regarding their assigned

work. Toure’s Lead Hand is also the first point of contact for the Region’s

Lead Hand (who supervises the Region’s cleaners, and tracks the

activities of contracted cleaners for contract compliance). Mr. Mauceri

(the Region’s night shift Lead Hand) stated that his “interactions with

Toure staff are usually limited to discussions with their Lead Hand”. The

subject matter of those discussions, he said, typically relates to “areas

that need to be cleaned or modified to be cleaned, e.g., by moving

furniture”. The Region’s Lead Hand also communicates “problems and

concerns” (regarding equipment or the work of Toure employees) to

Toure’s Lead Hand. If there is a “major problem”, Mr. Mauceri said,

Toure’s Lead Hand will attempt to contact Toure’s Area Supervisor.

Mr. Mauceri stated that in such instances, he also communicates with

Mr. Robinson and Mr. Forrester. Mr. Mauceri stated that he has never

disciplined a Toure employee.

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Mr. Mauceri indicated that he only met with Mr. Wright “two or

three times” while Mr. Wright was employed by Toure (although he

acknowledged that Mr. Wright sometimes came to HQ to speak to the

Lead Hands). Mr. Mauceri stated that “he had concerns with Wright’s

responsiveness”. He said that information or questions the Region

conveyed to Mr. Wright often went unanswered (in some cases, because

Mr. Wright did not know the answer). “Most of all”, he said, “we didn’t

see Wright enough to deal with the issues that arose”. Mr. Wright

defended his responsiveness to Region concerns.

Mr. Mauceri stated that “from time to time” the Region’s Lead

Hands address Toure staff directly regarding “minor concerns”. He

described these concerns as “minor, immediate action items”, most

often related to “vacuuming or dusting in an area” (e.g., failing to

vacuum corners). Mr. Mauceri stated that he would give instruction to

Toure employees directly if he felt standards under the Commercial

Contract were not being met. Mr. Mauceri said that Ms. Hosey

complained to him “several times” about the amount of cleaning she

had to do in the Social Services area of the facility. He said that he told

her that it was her job to clean the area, regardless of the state she

found it in. He stressed that Ms. Hosey already knew what the

expectations were regarding cleaning of the area.

On March 19, 2019, Ms. Hosey and Ms. Macdonald were

involved in a workplace incident concerning an assignment of work to

Ms. Hosey. According to Ms. Hosey, the task she was being assigned –

the cleaning of tables in the print shop – had never been part of her run.

Ms. Hosey’s refusal to perform the task led to a heated discussion

between the two women. Ms. Macdonald eventually went to another

room so that she could call Mr. Mauceri. Mr. Mauceri came to the print

shop (accompanied by another Region Lead Hand) and spoke to Ms.

Hosey. Afterwards, Ms. Hosey and Ms. Macdonald proceeded to clean

the print shop together. Mr. Mauceri reported the incident to Mr. Wright,

and advised Ms. Macdonald that she should do so as well. Ms.

Macdonald provided her version of events to Mr. Wright by way of an e-

mail sent near the end of the night shift. That afternoon, Mr. Wright e-

mailed Ms. Hosey, asking her to provide a written statement of the

incident. Ms. Hosey provided her statement by e-mail the same

evening. She said that after submitting her statement, the events of

March 19 were not raised with her, and she was not disciplined.

However, Mr. Wright stated that he subsequently met with Ms.

Macdonald and Ms. Hosey “to review the situation”, and obtained a

promise from Ms. Hosey that she would “try harder to comply with

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directions”. He admitted that he found it difficult to “performance

manage” someone who was on modified duties (as Ms. Hosey was at

that time).

In his declaration, Mr. Alferez stated that “many of the

bargaining unit members raised with me that Macdonald was aggressive

and abrasive as a supervisor”. He said that he informed Mr. Wright of

Ms. Macdonald’s “inability to communicate appropriately” with night

shift staff, and suggested to him that Toure provide Ms. Macdonald with

further training to improve her supervisory skills. In cross-examination,

Mr. Alferez agreed that the Region was not involved in any union-

management discussions regarding Ms. Macdonald.

Mr. Mauceri stated that he had “concerns about Mr. Lam’s

performance” (i.e., the quality of his cleaning) and his “increasingly

aggressive behaviour” (towards Ms. Macdonald and Region cleaning

staff). He indicated that he sometimes gave “minor corrective” direction

to Mr. Lam, such as “suggesting that he use the extractor to draw more

water out of the curtains”. However, he said that most times when he

saw an issue with Mr. Lam’s work, he would contact Ms. Macdonald

(during the shift, via walkie talkie) or notify Mr. Wright soon after.

Mr. Mauceri indicated that he was sometimes required to

address issues relating to the operation of Toure cleaning equipment.

He stated that the “Chariot” (a ride-on vacuum cleaner) broke down

eight times in the first year of the Toure contract. On one of those

occasions, Mr. Mauceri directed Mr. Lam to use the “back-up machine”

to finish the work he was doing with the Chariot. Mr. Mauceri stated

that he (along with Ms. Macdonald) directed Ms. Hosey to clean the

extractor (a device used for cleaning carpets and curtains) nightly, after

she had finished using it.

Mr. Lam stated that he received instructions from two sources:

Ms. Macdonald and Mr. Mauceri. He said that his primary source of

instruction, however, was Mr. Mauceri. This was so for two reasons, he

explained. First, Mr. Mauceri’s office is on the floor where the heavy-

duty cleaning equipment (the Chariot and the extractor) is stored.

Second, Mr. Mauceri had greater experience with the equipment.

According to Mr. Lam, Ms. Macdonald had “limited knowledge” of the

equipment, as she was not a heavy-duty cleaner. Mr. Lam stated that

Mr. Mauceri gave him “extensive instructions” as to how to use the

equipment (particularly, the extractor). The instructions he received

from Ms. Macdonald, he said, mostly originated with Mr. Mauceri.

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In an e-mail dated February 7, 2019, Mr. Mauceri reported to

Mr. Forrester and Mr. Robinson that he had created an “illness tracker”

spreadsheet to track absences and early departures of Toure

employees. A copy of the first spreadsheet – covering the period

November 22, 2018 to February 7, 2019 – was entered into evidence as

part of the parties’ Joint Book of Documents. The first event recorded

on the spreadsheet is Ms. Hosey’s departure (on November 22) due to

a knee injury. In his declaration, Mr. Mauceri stated that he “did not

know any of the details of [Ms. Hosey’s] medical condition, disability

management or return-to-work arrangements with Toure”. According

to Mr. Robinson, the illness tracker “was created and employed

exclusively for financial purposes […] to document the performance of

the contract”. He said that the Region never asked a Toure employee

why they were going home. Neither Mr. Mauceri nor Mr. Robinson gave

evidence as to whether the illness tracking system was continued

beyond February 7, 2019.

In the February 7 e-mail, Mr. Mauceri advised Mr. Forrester that

Ms. Hosey had been on modified duties since November 2018, and

reported that “we asked her this week if she had another Doctors [sic]

note”. In cross-examination, Mr. Mauceri stated that it was

Ms. Macdonald who asked Ms. Hosey for the doctor’s note. Mr. Mauceri

acknowledged that in January 2019, he received a copy of Ms. Hosey’s

Functional Abilities Form (“FAF”), which indicated that Ms. Hosey was to

be given light duties only. In his February 7 e-mail, Mr. Mauceri also

reported: “Myself and the Toure supervisor had told her that we are

moving some work runs over to her after she is back to full duties which

she is not happy [sic] but it will balance out the Lower level runs”.

“Labour relations” matters

Ms. Hosey served as a union steward for the Toure/Waterford

bargaining unit at HQ between 2013 and 2019. In that role, she

attended discipline and grievance meetings with fellow employees.

Ms. Hosey testified that she attended meetings regarding the site-

banning of Waterford employee, “SP”. She acknowledged that no

representative of the Region attended those meetings.

Ms. Hosey testified that she was a member of the LIUNA

bargaining team when it was negotiating with Waterford and, later, with

Toure. She admitted that the issue of site bans was not raised in the

bargaining sessions she attended.

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In his declaration, Mr. Alferez stated that he spoke to Mr. Wright

on a “day-to-day basis” about issues relating to bargaining unit

members. He said that before the events of December 2019, he and

Mr. Wright dealt with a variety of issues relating to such things as non-

payment of wages, job postings, and discipline. Mr. Alferez stated that

Mr. Wright issued discipline to other Toure employees, but not to Ms.

Hosey and Mr. Lam.

In cross-examination, Mr. Alferez stated that he was involved

with the dismissal of SP by Toure. His recollection was that SP was not

subject to a site ban by the Region. He said that the Union filed a

grievance on SP’s behalf, and explained that the dismissal also raised a

“human rights issue”. Mr. Alferez acknowledged that the Region was

not involved in any proceedings relating to the dismissal, and that the

Union did not file an application at the OLRB. Mr. Alferez stated that

most of the grievances the Union had with Toure (in the course of its

contract with the Region) concerned policy issues rather than discipline.

He acknowledged that the Region was not a party to those grievances,

and admitted that the Union had not previously sought to involve the

Region in a grievance against Toure.

In his declaration, Mr. Alferez stated that in the course of almost

ten years in his position at LIUNA, he had “experienced the detrimental

consequences of third-party site bans”. In the case of such bans, he

stated, “the Union is unable to grieve against the third party as they are

not bound to the Collective Agreement, and the Employer claims

innocence as they were not the party to make the decision to remove

the individual”. In cross-examination, however, Mr. Alferez admitted

that the Union had not attempted to negotiate collective agreement

provisions addressing the circumstances of site bans. Site bans, he said,

were not a concern with Toure at the time of negotiations.

Site bans at Region facilities

There were no “site bans” of Toure employees at Region HQ

prior to those issued to Ms. Hosey and Mr. Lam. Mr. Robinson recalled

that one employee of Waterford (SP) was “removed from the contract”

because of “volatile episodes”, the culminating incident involving

damage to a washroom at HQ. Ms. Richards recalled two instances of

site bans at other Region facilities – the Oshawa Water Supply Plant and

the Duffin Creek Water Pollution Control Plant. The worker at the Duffin

Creek facility (who was represented by LIUNA) was moved to a different

building on the site and provided greater supervision.

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Kimberly Hosey

Ms. Hosey was a light-duty cleaner employed by Toure. She

worked full-time, on the night shift. Ms. Hosey began working at Region

HQ in May 2010, originally as an employee of Waterford Services. Her

duties included collecting garbage, dusting, wiping surfaces, sweeping,

mopping and vacuuming. The last run that she was assigned to involved

cleaning the Social Services and Income Support departments, shipping

and receiving areas, and Corporate facilities on the lower levels of HQ.

While she was employed by Toure, her supervisor was Mr. Wright.

Ms. Hosey testified that Mr. Wright never spoke to her nor disciplined

her for any performance issues. She stated that she saw Mr. Wright in

person only a few (three to four) times.

She could, however,

communicate with him by phone or by e-mail. Ms. Hosey acknowledged

that Toure was responsible for paying her, providing benefits (and

dealing with issues regarding the receipt of them), approving vacations

and leaves of absence, attending discipline meetings, responding to

grievances, providing accommodations and dealing with Workplace

Safety and Insurance Board (“WSIB”) claims.

In late November 2018 (according to Ms. Hosey, November 29;

according to Mr. Mauceri’s illness tracker chart, November 22),

Ms. Hosey suffered a knee injury at work. She left work early, and

remained off work for an additional two days. Ms. Hosey filed with the

WSIB a “Form 6” (Worker’s report of injury/disease) specifying her

employer as Toure Cleaning Services. Ms. Hosey returned to work on

modified duties, facilitated by Toure. The heavier tasks of her run were

assigned to another Toure employee. Ms. Hosey resumed her regular

duties on February 28, 2019. However, she reinjured her knee on March

5, 2019, and returned to modified duties. In April, 2019, Ms. Hosey

determined that her injury made it impossible for her to continue doing

even modified duties. She went on a medical leave in anticipation of

having surgery performed on her knee. Toure issued her a record of

employment indicating that her absence from work was temporary.

Ms. Hosey underwent knee surgery on September 10, 2019.

Nhattan Lam

Mr. Lam (known as “Jimmy” during his employment at Region

HQ) began working for Toure Cleaning Services on January 31, 2019.

Although he was originally employed as a “floater” doing light-duty

cleaning, he later became a full-time heavy-duty cleaner at HQ.

- 15 -

Mr. Lam claimed to have had a “clean disciplinary record” during his

employment with Toure at HQ.

On November 25, 2019, Ms. Macdonald sent “shift report” to

Mr. Wright stating that Mr. Lam was “becoming unruly” and that “his

attitude has deteriorated to the point he is yelling at me”.

Ms. Macdonald also reported:

Jimmy disregards anything someone says to him unless it’s

something he wants to do, and he refuses to do things the

way he is shown by Chris or myself. I say this because Chris

came to me telling me Jimmy is not do [sic] his job correctly

or properly any longer. Chris has asked Jimmy many times

to slow down and do maybe two floors a night. Jimmy is still

not doing that he rushes through his job leaving behind dirt

and debris. Jimmy feels that his solutions are the only ones

that he should do not Chris’s or mine or even yours.

On December 9, 2019, the Region asked that he be removed

from the cleaning contract on the grounds of “recent significant issues”.

Mr. Wright stated that after he issued Mr. Lam a termination letter,

Mr. Lam contacted him by phone. Mr. Wright said that he offered

Mr. Lam an “on-call” position, but Mr. Lam declined because his

transportation options were limited to bicycle and public transit, and he

did not want to have to rely upon the latter to get to and from work.

Mr. Lam declared that a few days before he was removed from

Region HQ, he was approached by Mr. Mauceri and told, “Your union

cannot protect you”. According to Mr. Lam, Mr. Mauceri provided no

context for the statement. Mr. Mauceri denied making the statement to

Mr. Lam.

Events surrounding the removal of Ms. Hosey and Mr. Lam from HQ

At 2:27 P.M. on Thursday December 5, 2019, Ms. Hosey sent

an e-mail to Mr. Wright stating that “I will be returning to work on

Sunday December 8^th2019”. At 3:49 P.M., Mr. Wright sent an e-mail

to Mr. Mauceri and Mr. Robinson with the subject line “Kim Hosey

Returning” [The “Sent” line of the e-mail records the time as 3:49 AM,

which does accord with the timing of Ms. Hosey’s message. The

Statement of Agreed Facts provides the time 3:49 PM, which does

accord with the time of Ms. Hosey’s message. The discrepancy was not

addressed in oral evidence]. Mr. Wright’s e-mail reads:

- 16 -

Hello Chris and John,

I received a text from Kim Hosey this morning stating she is

returning. She has not been heard from since April 9, 2019.

Technically, she is on sick leave and wanting to return

however with her past issues it may be a wise decision to

not have her back. Her union contract states should the

contractor not wish an employee to return they can request

to do so, is this possible at your end? [emphasis added]

In his declaration, Mr. Wright stated that he was simply

enquiring as to “whether the Region still wanted Ms. Hosey assigned to

HQ”. In cross-examination he stated the he was “reaching out” to the

Region because he was aware that Toure had not been meeting its

contractual obligations to its client. When he was pressed as to where

this enquiry appears in his e-mail, Mr. Wright insisted that he was not

asking to have Ms. Hosey “site-banned”. He disagreed with the

proposition that he did not want Ms. Hosey back at Toure, insisting that

he had “no issues” with having her there. He also disagreed with the

proposition that if he wanted Ms. Hosey gone, he had to get the Region

to ask that she be removed from the contract. Mr. Wright maintained

that December 5 e-mail was not the starting point for the site ban

subsequently issued to Ms. Hosey.

A response to Mr. Wright’s e-mail from either Mr. Mauceri or

Mr. Robinson was not amongst the e-mails reproduced in the Joint Book

of Documents. In cross-examination, Mr. Robinson stated that he did

not make the decision (in response to Mr. Wright’s e-mail) to site ban

Ms. Hosey. He said that Mr. Forrester would have made the decision,

and communicated it to Mr. Wright. Mr. Wright confirmed that the

decision was conveyed to him by Mr. Forrester in a telephone

conversation. In any event, at 6:30 P.M. Mr. Wright sent the following

e-mail to Ms. Hosey:

Hello Kim,

I hope all is well with you. The client which is the region has

reached out to us to let us know they no longer require your

services at this time. With that being said we Toure have

on-call floaters in Toronto and Durham in the afternoon and

could offer that position. Please let me know what your

thoughts are regarding this matter.

- 17 -

At 6:37 P.M., Mr. Wright sent an e-mail to Humberto Alferez,

Assistant Sector Coordinator (Industrial Sector) of LIUNA, Local 183.

The e-mail reads:

Hello Humberto,

I just wanted to inform you that the region has relieved Kim

Hosey of her duties. I have offered her an on-call position

as we have no full-time positions available at this time which

is throughout the Durham and Toronto area.

Following the e-mail, Mr. Wright and Mr. Alferez talked on the

phone. Describing the contents of the phone conversation, Mr. Wright

said that he told Mr. Alferez that the Region did not want Ms. Hosey

assigned to HQ because “she did not meet the Region’s expectations”.

According to Mr. Wright, Mr. Alferez told him that Toure should fight for

Ms. Hosey’s job, and that if it failed to do so, the Union would start

“litigation” against it that could result in Toure being ordered to pay

Ms. Hosey $40,000.00.

Mr. Alferez described the contents of the call somewhat

differently. He said that he questioned why Ms. Hosey was being site-

banned, when she had not yet returned from her medical leave. He also

said that he told Mr. Wright that he was not aware of any issues with

Ms. Hosey’s performance, and expressed the view that she was being

targeted because of her injury and because she was a union steward.

According to Mr. Alferez, Mr. Wright told him that the decision regarding

Ms. Hosey’s employment was “out of his hands”. Mr. Alferez said that

he told Mr. Wright that the Union would be filing a grievance, and when

Mr. Wright asked him if there was a way to settle the matter, he

“sarcastically” replied that it could be settled by paying Ms. Hosey

$40,000.00.

At 7:17 P.M., Mr. Wright sent an e-mail to Mr. Robinson that

reads as follows:

Hello John,

The union reached out to me tonight and said this would be

considered wrongful termination and the region cannot

make that choice to release Kim from her duties. With that

said, he is stating that Toure would be on the hook for 40k

because the contractor cannot dictate a union employee’s

job especially a person coming back from sick leave.

- 18 -

I’m not well versed in this situation and would like your

advice and feedback on where to go with this as a grievance

has been filed against Toure. If you could give me a call

back at your earliest convenience that would be greatly

appreciated.

At 7:29 P.M., Mr. Robinson replied to Mr. Wright as follows:

Can I call you tomorrow?

Does she have medical clearance or any restrictions?

At 7:30 P.M., Mr. Wright replied, stating simply: “She’s cleared

yes”.

At 7:42 P.M., Mr. Robinson sent Mr. Wright a further e-mail

advising:

I will discuss it with our HR and legal tomorrow, and call you.

She should understand she doesn’t work for us or is she

entitled to certain jobs at the region. We are moving to a

centralized waste collection and will not be collecting desk

side waste come the new year. We will be asking Toure to

concentrate on carpet and washroom cleaning. I know in

the past she would refuse to jobs [sic] she felt she didn’t

have to do. At the end of the day, the Region dictates the

tasks and refusal will not be tolerated. There will be more

about this very soon. She will likely return but we will be

asking that she be managed.

Mr. Robinson and Mr. Wright spoke to each other by phone on

Friday December 6, 2019. Mr. Wright testified that he told Mr. Robinson

that if Ms. Hosey was allowed to return, he would supervise her more

closely “if necessary”. According to Mr. Wright, Mr. Robinson advised

him that Ms. Hosey would be permitted to return to HQ on Monday

December 9. At 4:48 P.M. on December 6, Mr. Wright e-mailed

Ms. Hosey to inform her that she would be returning to work at HQ on

December 9, but would need a new badge and a new “police check”. He

also called Mr. Alferez to tell him that Ms. Hosey would be returning to

HQ.

Mr. Wright testified that on Sunday December 8 he visited

Region HQ. He said that in the course of that visit he spoke to Toure

employee “JP”. According to Mr. Wright, JP told him that Ms. Hosey had

been telling Toure employees that she was “suing Toure” and would be

- 19 -

awarded “significant sums”. Mr. Mauceri recalled having a similar

conversation with JP on December 9. The information he was given was

that Ms. Hosey had “sued the Region” to get her job back, and that she

was going to “win back a job” for her former Waterford colleague, SP.

At 5:29 A.M. on Monday December 9, Mr. Mauceri e-mailed

Mr. Forrester to ask about Ms. Hosey’s return. His e-mail reads:

Hi Nathan,

Maybe you can help me figure this out? I have been told that

Kim is scheduled to come back Monday night but I have

some questions. I have been told by Toure staff that Kim

and their union have successfully sued the region to get her

job back? I find that hard to believe because she does not

work for the region and I have not heard anything from

yourself or John about this.

I don’t know if you received the paperwork from Kevin to

have her reinstated to her old position? Currently we do not

have a run for her on the night shift and from previous

experience she cannot operate the equipment for the heavy

duty cleaner.

If you get the chance could you let me know if she will be

coming back?

At 12:32 P.M. on December 9, Mr. Wright sent an e-mail to

Mr. Mauceri that appears to be a reply to the latter’s e-mail of 5:29 A.M.

[No evidence was provided by Mr. Mauceri or Mr. Robinson as to whether

Mr. Forrester or anyone else at the Region replied directly to Mauceri’s

e-mail]. Mr. Wright’s e-mail provided as follows:

Hello Chris,

Pending her paperwork, she is returning tonight. She will

not be going back to her old run and be put on a different

run. She is back to full duties and should not be receiving

any assistance. She will be monitored and should she

choose to not cooperate that is insubordination and it will

not be tolerated. Things will be done correctly this time and

corrective measures will be in place should she choose to

continue her past behaviour. Unfortunately, as it pertains

to the lawsuit etc. Unless [sic] a Toure employee is willing

to put that to paper there is nothing we can do. Our best

- 20 -

measure is to get her back and respond with corrective

measure [sic] moving forward.

Between 5:29 A.M. and 12:32 P.M. there was an exchange of

e-mails between Mr. Forrester and Mr. Wright concerning different

matters. The initial e-mail was sent by Mr. Forrester at 10:55 A.M. It

reads:

Hi Kevin,

I have received feedback from Regional staff on the night

shift regarding the behavior and lack of cleaning services

provided by some of the Toure employees.

Examples are as follows:



Toure employees seen napping on work time

Toure employees fashioning Regional employee

belonging [sic] into a makeshift bed



Smearing feces on the wall in the courts area

I would assume that the Toure supervisor is reporting these

types of occurrence [sic] to you when they occur.

Please reiterate this type of behavior will not be tolerated.

If this unprofessional behaviour continues the Region will

request that the Toure employee be removed from this

contract.

Mr. Wright testified that when he read Mr. Forrester’s e-mail,

he understood that the allegations of a Toure employee creating a

makeshift bed and taking a nap were directed at Mr. Lam. He said that

in October or November he had received complaints from Mr. Mauceri

that Mr. Lam was sleeping during his shift. He stated that he addressed

the matter with Mr. Lam at that time. Mr. Wright said that he did not

know who was being accused of smearing feces on the wall. He stated

that he called Mr. Robinson, and Mr. Robinson told him that the Region

believed Mr. Lam was responsible. Mr. Wright replied to Mr. Forrester’s

e-mail at 11:12 A.M. His e-mail reads:

Hello Nathan,

These were not reported to be [sic] however thank you for

making me aware of these incidents. I will ensure action is

taken and if such proceeds [sic] employees will be removed.

- 21 -

Following Mr. Wright’s 12:32 P.M. reply to Mr. Mauceri, four e-

mails were exchanged between Mr. Wright and Region managers. The

first two were sent by Mr. Forrester to Mr. Wright (with copies to Devi

Richards, John Robinson and Vanessa Pulst, of the Region). The first

e-mail – sent at 1:30 P.M. – reads:

Hi Kevin,

We have had an internal discussion regarding these issue

[sic].

We are requesting that due to the past issues experienced

with Kim Housey [sic] and the recent significant issues with

Nhattan Lam (Jimmy) that both be relocated from all

Regional contracts.

The second e-mail from Mr. Forrester – sent at 1:40 P.M. –

states only: “This request is effective immediately”.

In cross-

examination, Mr. Robinson maintained that he and Mr. Forrester had a

discussion “about these issues” on December 9 (prior to Mr. Forrester’s

e-mails), and that he told Mr. Forrester to “request” that Ms. Hosey and

Mr. Lam not be returned to HQ.

Mr. Wright testified that upon receiving the second e-mail, he

called Mr. Forrester to ask that the Region reconsider its position on

Ms. Hosey, and to seek an explanation for the Region’s decision to

remove Mr. Lam. He proceeded to send the following e-mail to Mr.

Forrester (at 2:00 P.M.; also copying to Ms. Richards, Mr. Robinson and

Ms. Pulst):

Hello Nathan,

It would not look good to get rid of Kim as she is coming off

sick leave. Toure would be on the hook for a major lawsuit.

Her union contract states that if we cannot provide her with

a full time position which we do not have in area [sic] then

we would have to pay her out. She had been an employee

for over 8 years which would be a heavy pay out for us to

be quite honest. My suggestion is to have Kim come back

as the duties are going to change and manage it differently

this time around.

Jimmy on the other hand the union contract states I would

need a letter so I could present to his union before action is

taken place. I’d the letter states [sic] what the cause is and

- 22 -

why such actions would be tolerated [sic] and resulting in

his termination that would be good.

Mr. Wright did not receive a reply to this e-mail from

Mr. Forrester. However, at 3:01 P.M. he received the following e-mail

from Ms. Richards:

Hi Kevin,

Our decision pertaining to Kim is in relation to her list of

documented past performance issues and the significant

disruption she caused to our operations. We do not want

her reintegrated into the same situation and cause the same

level of disruption to our operations. It has already been

reported that she is relaying incorrect information regarding

her return to work arrangements to other staff. We do not

make any statements regarding her employability with

Toure. However we are stating that given all the

documented past concerns, that she not be permitted to

service the contract you have in place with the region for

RHQ.

As for Nhattan (Jimmy) – the Region will issue an official

letter pertaining to the alleged and observed conduct by

tomorrow. The issues he is suspected of and the ones

directly observed by Regional supervisory staff are

outrageous and we simply cannot allow the potential for this

to occur again.

At 5:24 P.M., Mr. Wright sent an e-mail to Mr. Alferez and

Thierry Leprince, Toure’s Director of Business Development. The e-mail

included the text of Ms. Richards’s e-mail, which was set out below the

following text:

Hello Humberto,

Below is an email I received this afternoon pertaining to 2

Toure employees. They have requested that both employees

be removed immediately. A meeting was held this afternoon

to discuss the events and they feel that it is in their best

interest that both employees be discharged and not further

their employment as it relates to this contract. Both

employees will be paid their vacation pay and whatever is

owed to them on the next pay period. Both employees will

be issued letters as it relates to their employment. […].

- 23 -

Mr. Alferez called Mr. Wright to express his views about the

Region’s decision. According to Mr. Alferez, Mr. Wright knew that the

decision was “problematic” and was “back pedaling”. Mr. Alferez said

that he reiterated his position that the removal of Ms. Hosey was

discriminatory, and told Mr. Wright that the complaints against Mr. Lam

were “news” to him. Mr. Alferez advised Mr. Wright that he would be

filing grievances. In oral testimony, Mr. Wright agreed that the

statement that Ms. Hosey and Mr. Lam would be paid their vacation pay

(see letter reproduced below) indicates that Toure had at that point

determined that it was dismissing the two employees. Mr. Alferez

acknowledged that Mr. Wright had previously offered Ms. Hosey an on-

call position with Toure, and that Ms. Hosey had turned it down. He said

that he asked Mr. Wright about an alternative position for Ms. Hosey,

but was told that the on-call position was the only one available.

According to Mr. Toure, the only full-time positions the company had at

that time were in Burlington.

The evening of December 9, Mr. Wright sent e-mails to

Ms. Hosey and Mr. Lam (at 7:02 P.M. and 7:24 P.M., respectively).

Attached to the e-mails were letters – signed by Mr. Wright – containing

the following text:

The region headquarters have decided to end your

employment at 605 Rossland East due to performance

issues. You will be paid out your vacation pay as it relates

to your employment on the next pay period which is

December 27, 2019.

At 11:14 on December 9, Mr. Mauceri e-mailed Mr. Robinson a

copy of the “illness tracker” spreadsheet recording absences and early

departures of Toure employees between November 22, 2018 and

February 7, 2019 (It is the same document he sent to Mr. Robinson and

Mr. Forrester on February 7, 2019). The text of Mr. Mauceri’s e-mail

states: “Here is the information I had on Kim before she left”.

At 6:21 A.M. on December 10, 2019, Mr. Mauceri sent an e-mail

to Mr. Robinson setting out “incidents” involving Ms. Hosey. The e-mail

read as follows:

Hi John,

Here is a few of the incidents that we had with Kim on the

night shift:

- 24 -



Shortly after Leigh Macdonald started as Toure

Lead Hand she asked Kim to clean the kitchen

area in the mail room and she flat out refused.

There was a fight between them and Fergie and

myself talked to Kim and told her that she had to

do it. She argued that someone in the mail room

had told her not to clean the area but we said no

she had to do it.



It was reported to me that Kim would often take

several smoke breaks through out [sic] the night

above and beyond her normal breaks.

On

occasion she would also leave in her van to get

coffee before her breaks started with out [sic]

letting anyone know.

I listened to several complaints from Kim about

the mess that social services left for her and I

repeatedly told her that this was her job to clean

the mess up no matter how many times they left

it like that.



I had several complaints from IT that offices were

not being vacuumed when she was on that run.

Kim was the start of many rumours on the night

shift which continues to this day when they have

their union meetings. I can always tell when they

have had a meeting because the rumours start

back up and her name is usually attached to

them.



I would often find Kim lounging in the family

services meeting rooms saying that she just

stopped for a minute to rest.

When she was a heavy duty cleaner, a Toure staff

member at the time had witness [sic] her

damaging the extractor to the point where it

needed to be repaired. She would not clean the

equipment after use even though we had asked it

to be done on a nightly basis.

According to Mr. Robinson, the incidents “formed the basis for

the Region’s decision to accept Toure’s offer to remove Ms. Hosey from

servicing the Region’s contract”. The “offer” is the suggestion contained

in Mr. Wright’s December 5 e-mail that “it may be a wise decision not

to have [Ms. Hosey] back”. In his declaration, Mr. Robinson explained

that the Region “did not relieve Hosey of her duties, or initiate any kind

of termination, wrongful or otherwise – we simply accepted the offer

made by Toure to not have her return”.

In cross-examination,

Mr. Robinson agreed that the Commercial Contract does not stipulate

- 25 -

that the Contractor must give the Region the “option” not to take an

employee back, and that the option provided by Mr. Wright was not

Toure’s option to give.

At 3:49 A.M. on December 11, Mr. Mauceri sent a “forwarding”

e-mail to Mr. Robinson. The e-mail being forwarded was received by

Mr. Mauceri at 3:36 A.M. It was from Ms. Macdonald, and contained her

“incident report” of March 19, 2019 – an e-mail originally sent to

Mr. Wright setting out her description of the altercation with Ms. Hosey

in the print room. Mr. Mauceri explained the origin of the report to

Mr. Robinson, and told him “I am still looking for other dates for you”.

On December 20, 2019, Silvia Iturriaga, Procurement Officer

for the Region sent a letter to Abdoulaye Toure bearing the reference

line: “Notice of Substantial Breach in Contract for T-225A-2018”. The

letter advised Mr. Toure that “immediate corrective measures” were

required for “lack of professionalism” and “deficient cleaning services”

by Mr. Lam and Ms. Hosey. Under the heading “Professionalism”,

Ms. Iturriaga set out the following allegations:

Nhattan Lam (Jimmy)



witnessed napping during hours of work on August 27,

2019 and November 25, 2019;

aggressive behaviour towards Toure lead hand and

other co-workers;

frequent damage to chariot (ride-on vacuum) resulting

in daily work not being carried [sic];

Kim Housey [sic]



taking extended and unauthorized breaks on a daily

basis.

Ms. Iturriaga referred Mr. Toure to Article 7.5 (Disciplinary

Actions) with respect to the allegations.

Under the heading “Quality Workmanship”, Ms. Iturriaga set out

the following “deficient cleaning services” (as observed by “Regional

night shift staff”):

Nhattan Lam (Jimmy)



inadequate cleaning as a result of rushing through work;

- 26 -



failure to clean extractor equipment after each use

causing extra work for others;

Kim Housey



continuously failing to carry out cleaning duties in the

Social Services area of the building;

continuously failing to carry out cleaning duties in the IT

department.

For the requirement to provide the Region “quality

workmanship”, Ms. Iturriaga referred Mr. Toure to Article 7.6 of the

Commercial Contract (Breach of Contract). As “required action”, the

letter demanded the following:



Immediate removal of Kim Housey [sic] and Nhattan

Lam (Jimmy) from all Regional Contracts;

A plan and commitment on new measures that will be

put in place for more thorough supervision and audit by

Toure Cleaning Services Ltd. of staff’s work;

Effective immediately, Toure Cleaning Services Ltd. is to

provide the services as per the terms and conditions of

RFT-225A-2018.



Ms. Iturriaga requested a response to the letter, including a

“remedy plan” by January 6, 2020. She advised Mr. Toure that “failure

to address the issues detailed in this letter and failure to rectify similar

future occurrences of these issues may result in contract termination”.

In her declaration, Ms. Richards refers to the Iturriaga letter as

“an official breach of contract letter”. While Ms. Richards was not

involved in the decision to site ban Ms. Hosey and Mr. Lam, she

witnessed the “back and forth communications” pertaining to the

decision.

In cross-examination, Ms. Richards acknowledged that

Section 7.2 of the Commercial Contract is the provision that addresses

“performance issues” and that it sets out a process for dealing with such

issues. She further acknowledged that, pursuant to the provision, it is

the Contractor who is ultimately responsible for rectifying any

performance issues the Region identifies. Ms. Richards testified that

there were “several instances” of the Region requesting that Toure

respond to performance issues regarding Ms. Hosey and Mr. Lam.

However, she did not provide specifics as to how and when those

requests were made. Ms. Richards said that she thought the Region had

asked Mr. Wright to provide “daily supervision in addition to the shift

lead hand” as stipulated by Section 7.2. However, she could not say for

- 27 -

certain that Mr. Forrester or one of the other contract administrators

had asked for such supervision. According to Ms. Richards, members of

her staff reported the performance/conduct concerns to her and gave

her the “time line” of events leading to the removal request (site ban).

She stated that “these are the issues that were brought forth and clearly

outlined in the [Iturriaga] letter”. It is on this basis that Ms. Richards

declared that any actions she took “were strictly pursuant to the terms

of the contract”.

In his oral testimony, Mr. Toure agreed that Section 7.2 is the

provision of the contract that allows the Region to request an employee’s

removal for “incompetent performance”. In his testimony, Mr. Wright

agreed that Section 7.2 sets out a procedure for dealing with

performance issues of contracted cleaners. He acknowledged that –

pursuant to the provision – contractors like Toure should be responsible

for rectifying any performance issues identified by the Region. He

further acknowledged that the Region (via its Contract Administrator,

Nathan Forrester) did not seek any remedial action in relation to

performance concerns regarding Ms. Hosey and Mr. Lam before it asked

that they be removed from HQ.

ARGUMENT

LIUNA’S submissions

LIUNA maintains the Region and Toure have colluded to “hollow

out” just cause protection that should have been available to Ms. Hosey

and Mr. Lam under the Union’s collective agreement with Toure. The

Union insists that the “limited” declaration it seeks “surgically addresses

the mischief” arising in the circumstances of the terminations of the two

employees.

The Union maintains that the site ban originated in the

December 5, 2019 e-mail sent by Mr. Wright to Mr. Mauceri and

Mr. Robinson.

The e-mail and the subsequent events, it says,

demonstrate collusion between Toure and the Region with respect to the

dismissal of Ms. Hosey and Mr. Lam. LIUNA submits that Mr. Wright’s

request set in motion a chain of events that led the Region to site ban

Ms. Hosey and Mr. Lam four days later (events that include the rumour

that circulated amongst Toure staff that Ms. Hosey had successfully

“sued” to get her job back).

- 28 -

The Union points out that, at least in the instance of Ms. Hosey,

the ban had no relation to her job performance, as she had been out of

the workplace since April 2019 due to injury. It maintains that Toure

did not exercise its right to discipline Ms. Hosey for performance issues,

as it would have been required to show just cause for its actions.

Instead, the Union says, Toure asked the Region to implement a site

ban. The Union insists that Toure does not have the ability to ask the

Region to site ban its employees, nor does it (as was acknowledged by

Mr. Robinson) have the ability to give the Region the option to site ban

one of its employees.

LIUNA points out that while the Region claimed there were

significant issues regarding Mr. Lam’s performance – issues that Toure

was purportedly apprised of – Toure did not take any disciplinary action

against him. The Union notes that when asked why this was the case,

Mr. Wright replied that there had not been any matters identified to him

that warranted discipline. Accordingly, the Union contends, Mr. Lam

was simply added to the December 9 site ban to “bolster the legitimacy”

of the ban being issued to Ms. Hosey. The Union points out that

allegations of misconduct by Mr. Lam were brought to Mr. Wright’s

attention on December 9, 2019, just a few hours before the Region

asked Mr. Wright to “relocate” Mr. Lam and Ms. Hosey from its contract

with the Region. LIUNA maintains that from the timing of Mr. Mauceri’s

e-mail to Mr. Forrester regarding Ms. Hosey’s return (and the rumour of

her successful “lawsuit”) and Mr. Forrester’s e-mail to Mr. Wright about

the purported misconduct of Mr. Lam, it can be inferred that the

allegations against Mr. Lam were only raised to support the Region’s

request that he be included in the site ban. The Union submits that the

Region should have called Mr. Forrester to testify regarding the decision-

making process that led to the site bans, and invites the Board to draw

an adverse inference against the Region for its failure to do so.

LIUNA asserts that the December 9 site ban was ultimately

imposed by the Region in an effort to quash the rumour that the Union

had the ability to compel the Region to reverse the site ban of a Toure

employee. The Union contends that the Region worked-up its case to

get rid of Ms. Hosey only after Mr. Forrester had made the removal

request. It points to Mr. Mauceri’s December 10 e-mail to Mr. Robinson

(“incidents that we had with Kim on the night shift”) as evidence of the

“evolving reasons for the December 9 site ban”, and notes the

connection between the incidents identified by Mr. Mauceri, and the

incidents relied upon by Ms. Iturriaga in the December 20 “breach of

contract” letter to Toure. The Union also points to the comment

- 29 -

purportedly made by Mr. Mauceri to Mr. Lam in the days before the site

ban as indicative of the effect of the Region’s ability to site ban Toure

employees on the just cause protection available to those employees

under their collective agreement. According to the Union, employees

subject to such mischief as is present in the Hosey/Lam site ban have

no recourse under the collective agreement. Employers like Toure, it

says, can use site bans to “shield” themselves from collective agreement

obligations.

LIUNA asserts that all three requirements for a declaration are

met in this case. There are two entities it seeks to join under subsection

1(4). Those two entities, it maintains, carry on “related activities” within

the meaning of subsection 1(4), namely, cleaning at Region HQ. The

activities of two enterprises, the Union points out, can be “related” even

if the “principal business concern” of one of the enterprises is something

else (Frank Plastina Investments Ltd., 1986 1506 (ON LRB) at

para. 20). The Union points out, further, that activities can be found to

be related if they are “functionally integrated” (citing Thunder Bay

Regional Hospital, 2005 38883 (ON LRB) at para. 101). The

Union contends that the cleaning activities of Toure and the Region at

HQ are, in fact, functionally integrated, as their cleaning operations are

conducted “in tandem”. The Union points out that Region employees

work alongside Toure employees, employees of both entities take

breaks at the same time, and employees of both entities attend the

same staff meetings.

LIUNA acknowledges that “at first blush” the traditional indicia

of “common control or direction” are not present in the instant case.

The Union asserts, however, that Toure and the Region were not in a

genuine subcontracting relationship when they issued site bans to

Ms. Hosey and Mr. Lam. LIUNA points out that the Region failed to use

the provisions of the commercial contract (at Section 7.2) to deal with

concerns about the Toure employees. If the relationship was truly

“arms-length”, the Union says, the Region would have called upon Toure

to address Hosey’s and Lam’s performance issues in the manner

prescribed in Section 7.2. In the circumstances, it says, the relationship

is one of common control.

LIUNA further contends that common control and direction

presented itself in the instruction, supervision and direction of Toure

employees’ work by Region staff – in particular, that of Mr. Lam by

Mr. Mauceri.

The Union notes that both Mr. Lam’s evidence

(uncontradicted) and Mr. Mauceri’s evidence disclose the extent of the

- 30 -

instruction and direction Mr. Lam received from Mr. Mauceri, particularly

in relation to the use of cleaning equipment such as the extractor and

the Chariot. Their evidence also, the Union contends, shows that neither

Mr. Wright nor Ms. Macdonald supervised Mr. Lam’s work to any

significant degree. The Union points out that Mr. Wright, as suggested

by the testimony of the Region’s witnesses, did not have a “presence”

at HQ.

It notes, further, that Ms. Macdonald – the only Toure

supervisory personnel consistently on site when Mr. Lam was working –

was not called to testify in this proceeding (and invites the Board to

make an adverse inference against Toure in regard to that omission).

The Union submits that the Region’s use of an “illness tracking”

system in relation to Toure employees and its request for doctors’ notes

to support work limitations (in the case of Ms. Hosey) further

demonstrate the degree of control the Region exercised over Toure

employees. In a legitimate subcontracting relationship, the Union

submits, the contracting party would not have access to such

information, or need to know it “for any purpose”.

LIUNA maintains that the mischief subsection 1(4) is intended

to remedy is present in the circumstances of site bans such as those at

issue here. The situation of Ms. Hosey and Mr. Lam, the Union says,

demonstrates that without a declaration, its bargaining rights are

“illusory”, as it is unable to protect its members from unjust termination

or seek full redress through the grievance process. It observes,

however, that the provisions of the Act – as well as grievance processes

– are premised on bilateral employment relationships and, as a result,

the case law dealing with site bans has given rise to a gap in the law

that now requires the Board’s intervention (see, for example, Waste

Management of Canada Corp. v. Teamsters, Local 419, 2013

52676 (ON LA)). Unlike grievance arbitrators, the Union says, the Board

has the authority to inquire into the power exercised by a party that is

outside the bipartite bargaining relationship. LIUNA directs the Board

to the Supreme Court’s reasons in Pointe-Claire v. Labour Court, 1997

390 (SCC) for the proposition that labour legislation designed to

govern bipartite relationships must be adjusted for the purpose of

determining the real employer in the circumstances of tripartite

employment relationships (see para. 62).

LIUNA submits that the Board should exercise its discretion to

grant the “creative remedy” the situation calls for. The Union insists

that the Board has broad discretion under subsection 1(4) to fashion an

appropriate remedy, including issuing a “limited” declaration. It directs

- 31 -

the Board to Widcor Ltd., 1989 3055, Second Cup Ltd., 1993

7903, Humphrey Plumbing and Electrical Services Ltd., 2006

29249, and Ontario Roofing and General Contracting Services

Ltd., 2012 44818 as examples of cases in which the Board has

made limited declarations.

The Union maintains that there are two significant labour

relations reasons for granting the declaration it seeks. The first is that

the declaration is necessary to give effect to important collective

agreement rights – most notably, just cause protection. The second

reason is that the declaration accords with the purposes of the Labour

Relations Act generally, and of subsection 1(4) in particular. With

respect to the former, the Union points to clause 2 of the purposes of

the Act (as set out at section 2), that purpose being: “To recognize the

importance of workplace parties adapting to change”. The Union

submits that in order to give effect to this purpose, the Board must

adapt its approach to subsection 1(4) determinations to address the

mischief created by third-party site bans.

LIUNA acknowledges that related employer applications that

involve unionized entities raise concerns that a declaration will create a

conflict in bargaining rights. It maintains, however, that the mere

possibility of a conflict in bargaining rights does not end the analysis, as

the competing interest in protecting existing bargaining rights from

erosion must also be considered. The Board, the Union submits, should

exercise its discretion only after balancing the interests at stake in the

application. The Union insists that in the circumstances of the “narrow,

surgical” declaration it seeks here, a balancing of interests favours

granting the relief. To further protect CUPE, Local 1764 from any

incursion on its bargaining rights, LIUNA suggests that the Board could

specify that “nothing in the declaration is intended to reduce or erode

CUPE’s bargaining rights”.

LIUNA asserts that the present case can be distinguished from

Crossby-Dewar Projects Inc., 2018 31042 (ON LRB). First, it

says that unlike the employers in Crossby-Dewar, the Region is not

bound to the collective agreement between it and Toure absent a

declaration under subsection 1(4). Second, LIUNA submits that the

remedy it is requesting is “fundamentally different” from the remedy

sought in Crossby-Dewar. In that case, LIUNA points out, the remedy

sought by the union was “open-ended and forward-looking” (see para.

70). In contrast, it says, the remedy it seeks here is temporary and

limited to the two grievances now being litigated. Third, LIUNA notes,

- 32 -

the union in Crossby-Dewar had the opportunity to bargain language

that would have made other parties to the collective agreement (beyond

the nominal employer) subject to its grievance provisions. Accordingly,

the mischief the union complained of was a consequence of its failure to

bargain such language. LIUNA maintains that it is not in the same

situation as the union in the earlier case, as it is not able to bargain

language that would apply to the Region (a non-party to its collective

agreement). The mischief that is present in this situation, it says, was

not present in Crossby-Dewar. The Union insists that it bargained with

Toure the only language it could, that being just cause protection.

LIUNA submits that other terms that it might bargain in relation

to site bans would still result in a dilution of just cause protection. A

monetary penalty, the Union posits, would not discourage an employer

from requesting a site ban from a third party to whom it provides

services. The employer, LIUNA suggests, would simply regard the

penalty as the cost of avoiding its just cause obligations. A requirement

that the employer transfer a site-banned employee to another site would

also be problematic, the Union says, because the transfer would be

perceived as disciplinary or a demotion or, worse, may not be a viable

option for the employee (if, for example, the alternate site is not

nearby). LIUNA maintains that the “on-call” position Toure offered to

both Ms. Hosey and Mr. Lam fell short of being a suitable remedy in both

respects (both had been full-time employees at Region headquarters;

neither had the ability to travel to far-flung sites on short notice). The

Union asserts that the two options described above are an “affront” to

principles articulated by the Supreme Court in Wilson v Atomic Energy

of Canada Ltd., 2016 SCC 29 (). There can be no “middle ground”

options, it says, when it comes to just cause protection.

LIUNA submits that the present case can also be distinguished

from Nova Services Group Inc., supra (the Union’s prior “site ban” 1(4)

application). First, it says, in the earlier case the nature of the collusion

between the contracting party and the subcontractor was different than

in the present case. In Nova Services Group Inc., the Board found that

the contracting party (Hellenic) made the decision to request removal

of the employee independently of the employer (Nova-Compass), and

the employer’s request for a site ban followed. In the present case, the

employer’s request for a site ban preceded any action by the contracting

party to seek removal of the employees. The Region, the Union

contends, was effectively “rubber-stamping” the request made by

Toure. Second, the Union points out, in Nova Services Group Inc. the

Board “prioritized” the right of the contracting party to control its facility

- 33 -

because of its duty to protect its vulnerable residents. In the present

case, the Union submits, such “high level concerns” (and similar

concerns in Crossby-Dewar) are not engaged in respect of the cleaning

services provided by Toure.

In addition to the decisions cited above, LIUNA refers the Board

to the following: Gilbert Desroches, 2018 62800 (ON LRB); Pilon

v. International Minerals and Chemical Corporation (Canada) Ltd., 1996

1178 (ON CA); Sun Life Assurance Company of Canada, 2000

1338 (ON CA); London Life Insurance Company v. Dubreuil

Brothers Employees Association, 2000 5757 (ON CA); Enercare

Home & Commercial Services Limited Partnership, 2017 36002

(ON LRB); Molson Coors Canada (Toronto Brewery), 2017 14504

(ON LRB); Sun Media Corporation, 2009 (ON LRB); Re KGHM

International and United Steelworkers, Local 2020 (Bois), 2013

CarswellOnt 15551 (ON LA); Brant Erecting and Hoisting, [1980] OLRB

Rep. July 945; D. Grant & Sons Limited, 2003 12141 (ON LRB);

and, Hardrock Forming Company, 1987 3053 (ON LRB).

The Region’s submissions

The Region submits that of the three requirements necessary

for a declaration under subsection 1(4), only one is clearly present:

there are two entities sought to be joined by way of this application.

The Region asserts, however, that it is “not a given” that the two entities

carried on associated or related activities or businesses. The Region

describes itself as an “upper tier municipality” whose core “business” is

providing public services to its 700,000 residents. Cleaning is not a core

service, it says. The Region points out, however, that in the case of

Toure, cleaning is its core service. The distinction between the two

entities in this case, the Region contends, is similar to that of the

hospital and the food services provider in Hamilton Health Sciences

Corporation, 2012 47031 (ON LRB) (see para. 152). The Region

submits that while it employs its own cleaners, the work of those

cleaners does not overlap with that of cleaners employed by Toure.

The Region contends even if it could be said that the activities

of the two entities are related, the entities are clearly not under common

control or direction. The typical indicia of common control and/or

direction, it insists, are not present on the facts of this case (the indicia

being those set out in Walters Lithographic Company Limited, [1971]

OLRB Rep. July 406 at para. 21). The Region points out that, as is set

out in the Statement of Agreed Facts, there is – as between the two

- 34 -

entities – no common ownership or financial control, no common

management, no representation to the public that they are a single

enterprise, no sharing of premises or equipment, and no interchange of

staff. Cleaners employed by the two entities, the Region contends, work

under different Lead Hands and managers, and are subject to different

reporting structures.

The Region asserts that the only basis upon which the Union

can establish common control is if it can show that there was

“centralized control of labour relations” as between the Region and

Toure in relation to Ms. Hosey and Mr. Lam. The “crux” of the Union’s

case, it says, is that the Region inserted itself into Toure’s labour

relations, and that its doing so makes the labour relations of the two

entities centralized. The Region maintains that this is not what has

happened here, and that the evidence establishes that Toure solely and

exclusively manages all labour relations relating to its employees at

Region headquarters. It contends that the test for “centralized control”

set out in Jen-Ry Utility Contracting Company Limited, 1984

1026 (ON LRB) is not met, as the Region does not have “the ultimate

power to ‘call the shots’ […] with respect to the labour relations of the

two enterprises” (see para. 16). Toure, the Region points out, hires,

trains, supervises and disciplines its own employees, manages their

workplace injury and disability claims, approves their vacation and leave

of absence requests, and negotiates the collective agreement with their

bargaining agent. The Region insists that it has no involvement in these

matters. Establishing the existence of centralized control of labour

relations, the Region says, requires more than demonstrating that the

party contracting for services has the power to direct the activities of

contracted workers “in the field” (Ibid.).

The Region insists that its “myopic focus” was on enforcing the

terms of the contract, including ensuring that the contractor maintained

minimum staffing levels, that the contractor’s equipment remained

functional, and that the work of its employees was completed to the

required standard. It asserts that while it tracked “deficiencies” with

respect to the carrying out of the contract, it did not address deficiencies

on its own, or direct Toure as to how to address them. The Region

contends that day-to-day oversight of Toure’s adherence to the terms

of the Commercial Contract ultimately fell to Mr. Mauceri, who is a

member of the CUPE bargaining unit, and not a management employee.

The Region acknowledges that there is some “functional

interdependence” between itself and Toure – as manifested in the

- 35 -

interaction between Lead Hands (Mr. Mauceri and Ms. Macdonald), the

scheduling of work, and the monitoring of attendance. The Region also

acknowledges that Mr. Mauceri sometimes makes “minor real time

corrections” to cleaning work being performed by Toure employees (to

ensure, it says, that cleaning standards are met) and that Toure

employees (such as Mr. Lam) sometimes go to him rather than to

Ms. Macdonald for assistance.

It maintains, however, that work

deficiencies and employee concerns are ultimately referred to Toure

personnel (such as Ms. Macdonald or Mr. Wright) for resolution.

The Region points out that the Board has acknowledged that a

“symbiotic relationship” is likely to exist between a contracting party

and a subcontractor, and that some degree of interdependence will be

present in such situations (citing Enercare Home & Commercial Services

v. UNIFOR, Local 975, 2021 ONSC 606 () at para. 39, and

Federated Building Maintenance Company Limited, 1985 1096

(ON LRB) at paras. 32 and 36). Communication, coordination and

cooperation are acceptable features of subcontracting relationships, the

Region insists (citing Molson Coors Canada (Toronto Brewery), 2017

14504 (ON LRB) at para. 316-317). So too, the Region says, are

the setting of performance specifications and worksite rules by the

contracting party (citing Federated Building Maintenance Company,

supra at para. 25).

The Region maintains that the functional

interdependence between it and Toure flows out of the parties’ interest

in ensuring that the specifications of their commercial contract are met.

Such interdependence, it says, is part of a well-established arms-length

contractual relationship.

The Region maintains that the fact that it had some discussions

with Toure in the course of exercising its right – pursuant to Section 7.5

of the Commercial Contract – to issue site bans to Ms. Hosey and

Mr. Lam is not indicative of centralized labour relations. It asserts that

like Hellenic Home in Nova Services Group Inc., supra (see para. 56), it

has not usurped the role of Toure as the employer or inserted itself into

Toure’s labour relations in issuing the site bans. Furthermore, it says,

it did not require Toure to terminate the employment of the two

cleaners.

The Region asserts that there is no evidence to support LIUNA’s

claim that it colluded with Toure to help the employer avoid its just

cause obligations under the collective agreement. It maintains that

despite Mr. Wright’s enquiry e-mail of December 5, 2019 (regarding

Ms. Hosey), there was no “meeting of the minds” between Toure and

- 36 -

the Region regarding the issuance of site bans to Ms. Hosey and

Mr. Lam. The Region points out that following that enquiry, Toure (as

evidenced by Mr. Wright’s e-mails between December 6 and December

9), was making efforts to have Ms. Hosey returned to the workplace. It

insists that its decision to issue the site bans was made on the basis of

internal discussions between Region managers and supervisors, and did

not involve Toure management [The Region asserts that there is no

reason to make an adverse inference against it for not calling

Mr. Forrester to testify, as Ms. Richards, Mr. Robinson and Mr. Mauceri

were all copied on the e-mails involving Mr. Forrester]. The Region

submits that the fact that Toure made offers of alternative employment

to both Ms. Hosey and Mr. Lam suggests that the employer was not

trying to avoid its obligations under the collective agreement.

The Region submits that if the Board were to conclude that one

or more indicia of common control or direction is/are present in the

instant case, it should not exercise its discretion to grant the declaration

sought by LIUNA. It contends that the requested declaration would not

be consistent with the purposes of the Act, as set out in section 2. First,

the Region says, the declaration would (notwithstanding LIUNA’s claim

to the contrary) create a jurisdictional dispute with CUPE, Local 1764.

Thus, in the course of resolving one dispute, the Board would be creating

another one, which would be antithetical to the purposes of the Act. The

Region contends that the present case is, in fact, similar to Nova

Services Group Inc. (as demonstrated by the fact that LIUNA attempted

to consolidate the instant case with that one). Accordingly, it says, the

Board’s comments in that decision regarding the risk of conflicting

bargaining rights in the circumstances of a limited declaration apply

equally to the present case (see Nova Services Group Inc. at para. 58).

The Region submits, further, that the fact that CUPE opposes a limited

declaration and has taken part in this proceeding indicates that labour

relations conflict would likely arise were the Board to make the

declaration.

Second, the Region contends, the declaration would establish

an “untenable precedent” not only for it, but for entities across the

province that have similar subcontracting arrangements. Granting such

a declaration, the Region says, would set up a situation in which it would

be unable to exercise rights under subcontracting agreements (such as

the right to request removal of an employee) and in which it would be

forced to “parachute” in and out of employment relationships it is not a

party to and has no bargaining rights in respect of. Such a situation, it

says, would be worse than the situation created by a full declaration

- 37 -

(through which it would gain collective bargaining rights and the right

to enforce employee performance). Taken to its “logical conclusion”,

the Region suggests, the limited declaration would have the effect of

requiring it to take the subcontractor’s employees back, without any

ability to manage their performance (for fear of being subject to another

application). The Region describes that outcome as “an intolerable

labour relations anomaly” that would violate the purposes of the Act.

The Region also asserts that it has been subject to prejudicial

delay in the filing of the instant application. It maintains that LIUNA has

been aware of the Commercial Contract since 2008, when it first

obtained bargaining rights for cleaners employed by the previous

cleaning contractor, Waterford.

It points out, further, that the

“performance” terms of the Commercial Contract (including those

relating to disciplinary actions in respect of misconduct by the

contractor’s employees) have been in every iteration of the contract

since 2013. The Region asserts that as the Commercial Contract is a

public document, LIUNA knew (or should have been aware of) its terms.

The Region also points out that LIUNA has experienced the site banning

of members employed under previous contracts (e.g., SP, in May 2017).

Accordingly, the Region insists, the Union should have made its

subsection 1(4) application much sooner. It says that by not making an

application earlier, the Union denied the Region the opportunity to

review the site ban provisions of the contract before it issued the 2018

Request for Tender. Such prejudice, the Region asserts, militates

against the Board making the declaration sought by LIUNA.

Finally, the Region submits that the Board should decline to

grant the remedy sought by the Union on the grounds that the

Application constitutes an abuse of process. The Region maintains that

there has been no diminution of bargaining rights in the circumstances

of this case. LIUNA’s bargaining rights with respect to cleaners at

Region headquarters, the Region asserts, have not changed in twelve

years. It points out that but for the commercial arrangement made

possible by its collective agreement with CUPE, the work performed by

Toure cleaners would be performed by members of CUPE. The Region

submits that the Application constitutes an attempt by LIUNA to expand

its bargaining rights. In addition, the Region points to the fact that

LIUNA failed to apprise itself of the terms of the Commercial Contract

and failed to negotiate protections in relation to site bans in the most

recent round of collective bargaining as further evidence that the

Application is an abuse of process. It contends that the Application is

clear demonstration that the Union is improperly attempting to use the

- 38 -

Board’s processes to achieve a result that it did not make efforts to

achieve in bargaining. The Region calls upon the Board to adopt the

reasoning regarding the relationship between third-party site bans and

just cause protection that it set out in Nova Services Group Inc. (at para.

57), and to apply the principle regarding the exercise of the Board’s

discretion that it articulated in Crossby-Dewar Projects Inc., supra (at

para. 98).

In addition to the decisions cited above, the Region also refers

the Board to: Roncarelli v. Duplessis, 1959 50 (SCC); Hellenic

Homes for the Aged, 2010 37164 (ON LRB); and, Century

Interiors Ltd., 1990 5746 (ON LRB).

Toure’s submissions

Toure submits that LIUNA has failed to demonstrate that the

requirements for a declaration under subsection 1(4) are met in this

case. It contends that the Union has not shown that Toure and the

Region carry on related activities or businesses, and that they do so

under common control or direction. As all three requirements of

subsection 1(4) are not met, there is no basis, it says, for the Board to

exercise its discretion to make the requested declaration.

Toure asserts that the two entities sought to be joined by this

application do not carry on related activities. Toure, it points out, is a

cleaning company, while the Region is a municipality.

The

circumstances of the two entities, Toure says, are similar to those of the

responding parties in Hamilton Health Sciences Corporation, supra,

whom the Board described as an “acute health care services” provider

and a “food services” provider (see para. 152).

Toure further contends that none of the five indicia of “common

control or direction” set out in Walters Lithographic Company Limited,

supra (at para. 21) are present in the relationship between it and the

Region. There is, it maintains: no common ownership or financial

control; no common management; no interrelationship of operations

(for example, no sharing of equipment or intermingling of employees);

and, no centralized control of labour relations as between the two

entities. The Responding Parties, it points out, do not represent

themselves to the public as a single integrated enterprise.

Toure maintains that it is solely responsible for its labour

relations with LIUNA. It asserts that, pursuant to the Commercial

- 39 -

Contract, it is responsible for hiring, disciplining and firing employees,

for negotiating wages and benefits, for managing WSIB claims and

accommodation requests, and for determining the hours of work of its

employees. Toure is also, it points out, the party to whom the Union

directs grievances relating to its cleaners who work at Region

headquarters. The site bans imposed by the Region, Toure submits, do

not indicate that there is centralized control of labour relations as

between the two entities. Toure directs the Board to its reasons in Nova

Services Group Inc., supra, wherein the Board found that the nursing

home’s site ban (issued at the request of the employer) did not

constituted involvement in the labour relations and did not demonstrate

centralized control of labour relations (at para. 56).

Toure acknowledges that there is some coordination between

itself and the Region to ensure that the Region’s needs are met. It

allows that the Region sets the cleaning schedule of all cleaners.

However, it maintains it is up to Toure to determine how to schedule its

employees within the established cleaning periods. Toure acknowledges

that the Region tracks the absences of Toure employees. However, it

points out that the Region does not discipline Toure employees or

impose attendance management measures on them. Toure also allows

that there are regular communications between Toure and Region

managers and supervisors with regard to cleaning standards, but insists

that such communications are an expected part of the relationship

between a client and a subcontractor.

So too, it says, are

communications between Toure cleaners and Region supervisors

regarding the carrying out of cleaning tasks. Toure maintains that such

coordination and interaction between it and the Region is ultimately

directed to ensuring that Toure meets its obligations under the

Commercial Contract. It does not, Toure asserts, demonstrate that it

and the Region are under common control or direction.

If the Board finds that the requirements of subsection 1(4) are

met, Toure submits that the Board should decline to exercise its

discretion to grant a declaration. Toure maintains that there is no labour

relations mischief in the instance of a site ban, as the site ban itself does

not constrain a union from pursuing a grievance on a member’s behalf

(citing Nova Services Group Inc. at para. 57). This is so, Toure

contends, even in a circumstance where the subcontractor asks the

client to impose the ban (a circumstance it describes as “a red herring”).

Toure points out that LIUNA has, in fact, filed grievances regarding the

terminations of Ms. Hosey and Mr. Lam. It asserts that should the

arbitrator find that Toure did not have cause to dismiss one or both of

- 40 -

employees, the arbitrator can make any order that is necessary to

remedy the breach(es) of the Collective Agreement (including an order

of damages). To say that site bans “strip” bargaining unit members of

just cause protection, Toure insists, is a “huge overstatement”.

Toure points out that site bans are an inherent risk in any

subcontracting relationship. The impact of site bans, it submits, is a

consequence of bargaining, and not an erosion of bargaining rights

(citing Crossby-Dewar Projects Inc. at para. 70). Toure maintains that

the Union has had ample opportunity to bargain terms to protect

members from site bans (both before Toure took over the cleaning

contract and after the site bans of Ms. Hosey and Mr. Lam) but has failed

to even raise the matter in bargaining.

Toure contends that the instant application is not about

preserving just cause protection, which is already in the parties’

collective agreement and which the Union knew could not protect

employees from site bans. It is, Toure asserts, an attempt to expand

bargaining rights, which the Board should deny for the reasons set out

in Crossby-Dewar Projects Inc. (at para. 71). Toure maintains that the

declaration sought by LIUNA would make the Region subject to job

performance and discipline matters governed by collective agreement

terms that it had no opportunity to bargain.

Toure asks the Board to keep in mind that the Region has its

own cleaning employees, who are represented by CUPE, and that

Toure’s cleaners only have employment at Region headquarters because

of the contracting out language contained in the CUPE collective

agreement. It maintains that even the limited declaration sought by the

Union would give rise to a conflict of bargaining rights between LIUNA

and CUPE.

Toure asks the Board to reject the Union’s request that it draw

an adverse inference in respect of the absence of testimony from

Ms. Macdonald. Toure insists that by virtue of the declaration and

testimony of Mr. Wright, it presented all of the evidence necessary for

the Board to determine whether Toure and the Region operate under

common control or direction. It points out that as Ms. Macdonald is, in

fact, a bargaining unit member, the Union could readily have called her

to testify.

In addition to the decisions cited above, Toure also refers the

Board to: Metro Waste Paper Recovery Inc., 2009 60617

- 41 -

(ON LRB); Federated Building Maintenance Company Limited, supra;

Jen-Ry Utility Contracting Company Limited, supra; Hamilton Health

Sciences Corporation, supra; The Regional Municipality of York and York

BRT Services L.P., 2012 72003 (ON LRB); Hellenic Homes for the

Aged, 2010 37164 (ON LRB); Durham Access to Care, 2000

12981 (ON LRB); and, Bayritz Construction Ltd., 1994

10007 (ON LRB).

CUPE’s submissions

CUPE submits that the Board should decline to make the limited

declaration sought by LIUNA, as such a declaration would result in a

conflict of bargaining rights between the two unions, and would trigger

a jurisdictional dispute. CUPE refers the Board to Bayritz Construction

Ltd., supra (at para. 44) for the proposition that the Board typically will

not grant a related employer declaration in circumstances where the

employees of the second company are represented by another union,

on the basis that such a declaration would result in conflicting bargaining

rights and disrupt the established labour relations of the parties. CUPE

also refers the Board to City of Toronto and Toronto Parking Authority,

2000 7860 (ON LRB).

LIUNA’s reply

LIUNA reasserts its position that the December 9 site bans of

Ms. Hosey and Mr. Lam were directly related to the December 5 request

made by Mr. Wright. The Union insists that it is irrelevant that Toure

subsequently opposed the December 9 bans. It maintains that by that

time “the damage had already been done”. It is necessary, the Union

says, to consider the effect of Mr. Wright’s December 5 e-mail on the

events of December 9. LIUNA insists that the Board should draw an

adverse inference against the Region for its failure to call Mr. Forrester

to testify regarding the reasons behind “his decision” to site ban

Ms. Hosey and Mr. Lam on December 9.

LIUNA maintains that much of the related employer case law

relied upon by the Responding Parties is distinguishable from the

present case, as it does not involve site bans, and is focussed on the

“traditional” remedy of a full declaration. The Union submits that what

it is asking for in the present case is a “unique” remedy to address an

uncommon situation. The Union acknowledges that the Responding

Parties have put forward two Board decisions dealing with related

employer applications in the circumstances of third-party site bans.

- 42 -

However, it insists that those decisions are also distinguishable from the

present case.

The Union maintains that in the present case, Toure colluded

with the Region “at the outset” to impose the site ban(s). It is the

timeline following the collusion event, the Union says, that makes this

case “fundamentally different” from Nova Services Group Inc. It insists

that the collusion present here demonstrates that the Responding

Parties are not in a legitimate arms-length relationship but, rather, are

under common control and direction. LIUNA submits that the Board

should apply a “balancing of interests” analysis when considering the

prospect that a declaration will result in a conflict of bargaining rights.

The Union submits that a balancing of interests in the circumstances of

the present application favours granting the requested declaration. It

maintains that the conflict identified by the Board as a possible outcome

of a limited declaration (see para. 58) is unlikely to occur here. The

Union also points out that (among the other factual differences between

the cases), the remedy it seeks here is much narrower than the one

requested by the union in Crossby-Dewar Projects Inc., supra.

LIUNA disputes the Region’s claim that it was in all

circumstances simply exercising its rights under the Commercial

Contract. It contends that if the Region was simply ensuring that its

cleaning standards were met by Ms. Hosey and Mr. Lam, it could have

called upon Toure to enforce the standards rather than colluding with

Toure to have the two cleaners removed (thereby involving itself in

Toure’s labour relations). The Union also contends that the Region

exercises much more control over the day-to-day work of Toure

employees than it professes to.

It asserts that Mr. Mauceri

“consistently” provides instruction to Toure employees, and that the

Region’s “illness tracking” system goes further than simply tracking

absences for financial or contract performance purposes.

LIUNA maintains that it did not delay in filing this application.

It points out that it filed the application on February 4, 2020, in response

to events that occurred on December 5 and December 9, 2019. The

Union further submits that the Region has provided no reasons to

support its position that the application is an abuse of process. It

suggests that the Region may be conflating the abuse of process

doctrine with the exercise of discretion under subsection 1(4).

LIUNA submits that the Board should set aside the Responding

Parties’ concerns that a declaration will give rise to a jurisdictional

- 43 -

dispute, and remedy the “clear mischief” present in this application. The

Union contends that the application raises a natural justice issue –

namely, that the Board is the only body capable of remedying the

mischief present here. LIUNA maintains that the analysis requires more

than simply identifying a concern that might arise in the event the

declaration is granted (in this case, the possibility of creating a conflict

of bargaining rights). The Board, the Union says, must weigh the labour

relations interests at stake in the application against the likely impact of

the remedy it is requesting. The Union points out that what it is asking

for here is a “temporary remedy for a limited purpose” (the adjudication

and resolution of the Hosey and Lam grievances). It insists that the

remedy is not intended to encroach upon the bargaining rights of CUPE,

Local 1764.

LIUNA submits that the Board should also reject the Region’s

argument that the requested declaration would cause the Region to be

bound to collective agreement terms it did not have the opportunity to

bargain. The Union points out that such an outcome would not be

unique to this case, as all third parties that are subject subsection 1(4)

declarations are in the same situation. The Union agrees that the Region

will not get an opportunity to bargain the terms of the LIUNA-Toure

agreement, but it points out that that is the case because the declaration

will be of no effect after the grievances have been arbitrated.

LIUNA describes as “a scare tactic” the Region’s claim that by

granting the requested declaration the Board will be setting an

untenable precedent for subcontracting relationships in the province.

The Union maintains that the declaration it seeks is intended only to

hold Toure and the Region accountable for their collusion to undermine

the collective agreement. It insists that the proposed remedy will not

capture all subcontracting relationships, as it addresses a specific factual

scenario. The Union submits that only “bad actors” should be concerned

with the granting of a declaration in the circumstances of this case. The

declaration, it says, will not impact legitimate subcontracting

relationships.

Finally, LIUNA calls upon the Board to reject the Region’s

proposition that should it ultimately be required to take back Ms. Hosey

and Mr. Lam as a consequence of the proposed declaration, it will not

be able to manage their performance for fear of attracting another

related employer application. The Union points out that in a legitimate

subcontracting relationship, the client does not manage the

performance of employees of the subcontractor.

Thus, should

- 44 -

Ms. Hosey and Mr. Lam be returned to the workplace, the Union says,

the Region would not be allowed to “manage their performance” in any

event.

ANALYSIS

By way of this application, LIUNA initially sought a declaration

that Toure Cleaning Services and Durham Region constitute one

employer “for the purposes of the collective agreement between the

Union and Toure”. It abandoned that request, but proceeded with the

application on the basis of its alternative request. Accordingly, the

Union seeks a declaration that Toure and the Region constitute one

employer “for the limited purpose of adjudicating and enforcing the two

individual termination grievances of Kimberly Hosey and Nhattan Lam

dated December 16, 2019”. Subsection 1(4) authorizes the Board to

grant relief, “by way of declaration or otherwise” where, in its opinion,

two or more entities carry on associated or related activities or

businesses under common control or direction.

provides:

Subsection 1(4)

Where, in the opinion of the Board, associated or related

activities or businesses are carried on, whether or not

simultaneously, by or through more than one corporation,

individual, firm, syndicate or association or any combination

thereof, under common control or direction, the Board may,

upon the application of any person, trade union or council of

trade unions concerned, treat the corporations, individuals,

firms, syndicates or associations or any combination thereof

as constituting one employer for the purposes of this Act and

grant such relief, by way of declaration or otherwise, as it

may deem appropriate.

In Brant Erecting and Hoisting, supra, the Board explained the

purpose and operation of the provision as follows:

12. […] Section 1(4) was enacted in 1971 and deals with

situations where the economic activity giving rise to

employment or collective bargaining relationships regulated

by the Act is carried out by, or through more than one legal

entity. Where such legal entities carry on related business

activities under common control or direction, the Board is

empowered to pierce the corporate veil. Section 1(4)

ensures that the institutional rights of a trade union and the

contractual rights of its members, will attach to a definable

commercial activity, rather than the legal vehicle(s) through

- 45 -

which that activity is carried on. In this respect the purpose

of section 1(4) is similar to that of [section 69] which

preserves the established bargaining rights and collective

agreement when a “business” is transferred from one

employer to another.

[…] Neither remedial provision

requires a finding of anti-union animus; their primary

application is to bona fide business transactions which

incidentally undermine or frustrate established statutory

rights.

Subsection 1(4) establishes three preconditions for the exercise

of the Board’s discretion to grant a declaration or other relief (see:

Hamilton Health Sciences Corporation, supra, at para. 147). There is

no dispute that one of those preconditions is present in this case. There

are two entities (or “corporations”) sought to be joined by this

application. However, the entities in question dispute the Union’s

contention that the two remaining preconditions for relief are met. The

Responding Parties contend that they do not carry on associated or

related activities or businesses, and that their activities or businesses

are not under common control or direction. As is its practice, the Board

will address these questions separately.

Toure Cleaning Services and Durham Region clearly operate

different “businesses”. Toure is a private company that provides

janitorial services to a variety of clients, in a variety of settings. The

Region, meanwhile, is a municipality that provides public services,

maintains municipal infrastructure, and exercises licensing authority

and other powers conferred upon it by the Municipal Act, 2001, in the

interests of the municipality’s 700,000 residents.

However,

(notwithstanding the opinion expressed in Hamilton Health Sciences

Corporation at para. 152), the Board finds that Toure and the Region

carry on “associated or related activities” in respect of cleaning at Region

headquarters.

As the Union has pointed out, two entities whose principal

businesses differ from one another may nonetheless engage in

“associated or related activities” within the meaning of subsection 1(4)

(Frank Plastina Investments Ltd., supra, at para. 20). The Board may

make a related employer determination on the basis that only the

“related activities” of two entities are under common control or direction

(Enercare Home & Commercial Services (2017), supra, at para. 292).

The broad language of subsection 1(4) is intended to capture “a wide

variety of commercial activities”, including activities that are not an

employer’s main or principal business (Frank Plastina Investments Ltd.,

- 46 -

at para. 20). While cleaning is not the Region’s main business (or even

a “commercial activity” in this instance), it is nonetheless an activity

carried on by the Region. The Region directly employs cleaners to clean

its premises.

In addition (as the Board stated in Thunder Bay Regional

Hospital, supra, at para. 101), “activities can be related in the sense

that they are functionally integrated” and “go together to further one

corporate objective”. In the case of cleaning at Region HQ, the activities

of the Region’s cleaners and Toure’s cleaners are functionally integrated

for the purpose of meeting the Region’s objective of having clean

premises in which its staff can work and its constituents can conduct

business. For these reasons, the Board finds that Toure and the Region

carry on “associated or related activities”, and thus meet the second

precondition for a declaration under subsection 1(4).

A more difficult question is whether Toure and the Region carry

on cleaning activities at Region HQ under “common control or direction”.

The criteria most often relied upon by the Board in determining whether

two entities are under common control or direction are those set out in

Walters Lithographic Company Limited, supra, at paragraph 21:

The indicia or criteria which the Board considers relevant in

making a determination as to whether the activities or

businesses of one or more corporations, individuals, firms,

syndicates or associations, or any combination thereof are

carried on under common direction and control and

therefore may be treated as one employer are: (1) common

ownership or financial control; (2) common management;

(3) interrelationship of operations; (4) representation to the

public as a single integrated enterprise; and (5) centralized

control of labour relations. No single criterion is likely to

decide the issue. Rather, as has been stated, the Board’s

determination undoubtedly will be based on an appraisal of

all of them in the light of the particular facts before it. It

hardly need be said that in applying the above criteria, the

greater the degree of functional coherence and

interdependence which the Board finds among the

associated or related activities and businesses the more

probable it is that the Board will conclude that the entities

carrying on these activities should be treated as one

employer. We would mention here also that the indicia or

criteria themselves obviously overlap. For that reason, in

applying them to the facts of the instant case we have not

attempted to deal with each criterion on an individual basis.

- 47 -

Walters Lithographic was not a “subcontractor case”.

Nonetheless, as was noted in Hamilton Health Sciences Corporation (at

para. 154), the Board has used the “commonly applied” indicia in a

number of subcontractor cases to determine whether common control

or direction is present (e.g., Federated Building Maintenance Company,

supra, Metropolitan Life Insurance Company, 1987 3281 (ON

LRB), and the decisions cited at para. 164). As was also observed in

Hamilton Health Sciences Corporation (at para. 165), the Board has

recognized that “subcontracting relationships can under certain

circumstances bring two or more nominally independent businesses

within the parameters of subsection 1(4)” (see also: Federated Building

Maintenance Company, at paras. 32-33). Perhaps not surprisingly then,

considerations more germane to the analysis of control and direction in

subcontracting cases have been identified by the Board.

The characteristics of subcontracting relationships were

discussed in Metro Waste Paper Recovery Inc., supra:

112. What is subcontracting? Subcontracting occurs when

a business grants a contract to another company to do

something. In labour relations we sometimes speak of

legitimate “subcontracting”. A legitimate subcontract in

labour relations is one where the fundamental control over

the employees rests with the subcontractor. Some of the

considerations which bear on an assessment of the

subcontracting’s “legitimacy” are:

i)

the extent to which the contracting business is in

a genuine arms-length relationship with the

contractor;

ii)

the extent to which the contractor devolves

control over the subcontracted; the more the

contractor retains control, the less like a true

subcontracting it appears;

iii)

iv)

whether the subcontracted work represents a

core business of the contractor or is just a

periphery matter;

in labour subcontracting, the extent to which it is

a permanent or temporary subcontract.

Just as there can be overlap amongst the Walters Lithographic

criteria, there can be overlap between those criteria and the criteria set

- 48 -

out in Metro Waste Paper Recovery. The Board will not address these

tests independently but, rather, will assess whether the presence of one

or more of these factors provides a sound labour relations rationale for

a finding of common control or direction as between the Region and

Toure.

As the Union has acknowledged, several of the Walters

Lithographic criteria are not present in this case. There is no common

ownership between the Region and Toure, and the Region exercises no

immediate financial control over Toure (although, significantly, it does

have the power cancel the Contract). Toure is an independently-owned

cleaning services company that has contracts with clients other than the

Region. Toure is not managed by – nor does it share any management

with – the Region. Toure and the Region do not represent themselves

to the public as a single integrated enterprise. The circumstances of the

two entities are, therefore, are much like those of the businesses in

other subcontracting relationships that have been reviewed by the

Board (see, for example, Federated Building Maintenance Company, at

para. 36). The Union contends, however, that two of the Walters

Lithographic criteria – interrelationship of operations and centralized

control of labour relations – are present to an extent sufficient to support

the conclusion that the Region and Toure are under common control or

direction.

As suggested by the finding that Toure and the Region carry on

“related activities”, there is an “interrelationship of operations” with

respect to cleaning at Region HQ. Indeed, interrelationship of cleaning

operations at HQ is effectively prescribed by the terms of the

Commercial Contract. Section 4 of the Contract provides that “there will

be a combination of Regional cleaning staff and Contractor cleaning staff

working together at this site”. The same provision also specifies that

“the Contractor’s shift lead hand will take direction by the Region’s lead

hand to ensure the consistency of service in terms of but not limited to

quality and completeness” (Section 4.6 of the Contract contains similar

wording).

Interrelationship is also apparent in the day-to-day carrying out

of cleaning operations at the facility. Toure’s cleaners work the same

shifts as the Region’s cleaners, take breaks at the same time as the

Region’s cleaners, and attend shift meetings with the Region’s cleaners.

They perform cleaning tasks that are different from – but

complementary to – those performed by the Region’s cleaners. The

Lead Hands of Toure and the Region (as indicated by the evidence of

- 49 -

Mr. Mauceri) confer with one another as necessary to ensure that the

work assigned to Toure’s cleaners is completed on each shift. As per

the terms of the Commercial Contract, Toure’s cleaners are required to

complete “performance sheets” that are “formed by the Contract

specifications” and are subject to review by the Region. The Region’s

Lead Hand may be called upon to provide instruction to Toure cleaners

or to address issues concerning the functionality of their equipment.

The interrelationship of the Responding Parties’ cleaning

operations can, for the most part, be described as “functional

interdependence”. The Board has observed that in subcontracting

arrangements like the one at issue here, there will inevitably be

“something of a symbiotic relationship” and “a degree of functional

interdependence” between the parties (Federated Building Maintenance

Company, at para. 32 and 36). Such interdependence, the Board has

noted, will often entail “some degree of coordination” in the interest of

efficiency (Federated Building Maintenance Company, at para. 32).

However, in the absence of other indicia of control, the Board is unlikely

to find that functional interdependence amounts “common control or

direction” as required by subsection 1(4).

Generally speaking, in a unionized workplace “labour relations”

refers to matters directly relating to the relationship between the

employer and the union representing its employees. Matters normally

understood as falling within the ambit of “labour relations” include

collective bargaining, the exercise of rights set out in a collective

agreement (or in the Labour Relations Act), and the meeting of

obligations set out in a collective agreement (or in the Labour Relations

Act). The rights of unionized employers to hire, train, supervise,

promote, discipline and dismiss employees – rights often expressly or

impliedly governed by collective agreement terms – are, thus, “labour

relations” matters. So, too, is the obligation to respond to grievances

regarding the administration or application of the collective agreement.

In a “related employer” situation, “centralized control of labour

relations” would mean that control over these matters (or some of them)

is effectively exercised by the related employer, rather than the nominal

employer.

The Board begins its inquiry into “control” by noting that there

is appreciable conflict between provisions of the Commercial Contract

and provisions of the Collective Agreement. Rights that are reserved by

Toure pursuant to Article 5.01 of the Collective Agreement are

constrained or even negated by provisions contained in Appendix D of

- 50 -

the Contract. Those rights include the right to: determine the services

to be rendered; determine the number of workers required for any and

all operations; determine the location where employees are assigned;

judge the qualifications, ability and skills of employees; assign or

reassign workloads; review work assignments or hours of work; and,

make and alter rules and regulations governing the conduct of

employees during working hours. With respect to these matters, it

cannot be said that the Region has “devolved control” to Toure. Of

particular concern is the incursion Section 7.5 of the Commercial

Contract makes on Toure’s right to “make and alter rules and regulations

governing the conduct of [its] employees”. More will be said about this,

below.

The Region clearly retains the authority to determine the

cleaning tasks to be performed by contracted employees and the

standards to be met in regard to the performance of those tasks. Such

specificity in a “contract for services” is not uncommon, and will not

generally be of concern to the Board (see: Federated Building

Maintenance Company, supra, at para. 36; and, Metropolitan Life

Insurance Company, supra, at para. 22). In the instant case, the

evidence suggests that issues relating to the meeting of cleaning

standards (i.e., “performance issues”) are normally brought to the

attention of Toure’s Lead Hand and Area Supervisor for resolution.

Although Toure’s ability to respond to performance issues at the “Area”

level is (or, at least, was) somewhat challenged, it ostensibly remains

Toure’s responsibility to ensure that its employees’ work meets the

quality standards set out in the Commercial Contract – even in

circumstances where the quality of an employee’s work causes the

Region to invoke Section 7.2 of the Contract.

Despite the control exercised by the Region pursuant to the

terms of the Commercial Contract, Toure retains control over the lion’s

share of matters that constitute its “labour relations” with the Union.

Toure bargains the collective agreement with LIUNA, and responds to

grievances arising out of the application or administration of the

collective agreement. Toure hires and trains its employees, and retains

the power to classify, transfer, promote, demote and lay them off.

Toure grants vacation and leave of absence requests, and deals with

matters arising out of workplace injuries (WSIB claims and workplace

accommodations). However, in the context of the discharge of Ms.

Hosey and Mr. Lam, the Region stepped into the role of Toure in respect

of the disciplining of its employees. It did so by failing to defer to Toure

with respect to performance issues of the two cleaners, and by relying

- 51 -

upon Section 7.5 of the Commercial Contract to take disciplinary action

against them.

Section 7.2 prescribes the process whereby the Region may

bring performance concerns to the attention of the Contractor, and have

them addressed by the Contractor. If, after that process has been

followed (with the Contractor providing additional daily supervision), the

Region remains unsatisfied with the cleaner’s performance, it may

request a staffing change. The Region did not follow the prescribed

course of action before it requested the removal of Ms. Hosey and Mr.

Lam from its contract with Toure. There was no evidence that the

Region had called upon Mr. Wright to rectify any performance-related

issues concerning the work of Mr. Lam or had asked Toure to provide

Mr. Lam “daily supervision in addition to the shift lead hand” in the days

or weeks prior to the December 2019 removal request. In the case of

Ms. Hosey, there was no evidence that the Region had undertaken the

required course of action prior to the start of Ms. Hosey’s medical leave

(April 2019). While the Region might have asked Toure to provide Ms.

Hosey with additional daily supervision upon her (prospective) return to

work in December 2019, it did not do so. It simply compelled Toure not

to return her to HQ. By failing to follow the procedure set out in Section

7.2 for responding to performance issues – and, in effect, directly

imposing what amount to disciplinary measures on the two cleaners –

the Region inserted itself into Toure’s labour relations. The Region’s

conduct distinguishes the instant case from the many cases in which the

Board has determined that the subcontracting relationship did not bring

the entities within the ambit of subsection 1(4).

In its “notice of breach of contract” letter to Toure – sent eleven

days after it requested the removal of Ms. Hosey and Mr. Lam - the

Region relied upon Section 7.5 for its response to the “lack of

professionalism” allegedly demonstrated by Mr. Lam and Ms. Hosey

(napping during work hours, aggressive behaviour towards co-workers

and damaging equipment, in the case of the former; taking extended

and unauthorized breaks, in the case of the latter). It is debatable

whether these behaviours, in fact, fall within the ambit of Section 7.5.

In any event, Section 7.5 grants the Region the right to request removal

of a contractor’s employee for conduct that would normally fall to an

employee’s actual employer to both identify and determine an

appropriate response (for example, “rudeness”, “laziness” and

“inappropriate attire”). A request for removal pursuant to the provision

is certainly a “disciplinary action” (as the Commercial Contract

characterizes it). This would be so even if the contractor has another

- 52 -

position into which it can place the employee. Accordingly, to the extent

that it purports to grant the Region authority to take disciplinary action

against an employee of the contractor for conduct that is rightly for the

contractor to identify and rectify (subject, it should be noted, to a “just

cause” standard), Section 7.5 of the Commercial Contract constitutes

an intrusion into the contractor’s labour relations.

With respect to the conduct set out in the letter under the

heading “Quality Workmanship”, the Region relied upon Section 7.6 of

the Commercial Contract (“Breach of Contract”). However, the concerns

identified by the Region – inadequate cleaning and failure to clean

extractor equipment, in the case of Mr. Lam; continuously failing to

carry out cleaning duties in two areas of HQ, in the case of Ms. Hosey –

are clearly “performance issues” that fall within the ambit of Section 7.2.

The Board notes that the termination letters issued to Ms. Hosey and

Mr. Lam by Toure cite “performance issues” as the basis for the Region’s

actions (The Board also notes that the Breach of Contract notice

erroneously attributes “failure to clean extractor equipment” to Mr. Lam

rather than to Ms. Hosey).

As explained, above, the cleaners’

performance issues should have been dealt with by way of the process

set out in Section 7.2. They were not, which may explain why the

Region elected not to refer to that provision in the notice letter.

For these reasons, the Board finds that as between the Region

and Toure there existed “centralized control of labour relations” in

respect of the disciplinary actions taken against Ms. Hosey and Mr. Lam

pursuant to Section 7.5 and (in violation of) Section 7.2 of the

Commercial Contract. The Region was clearly “calling the shots” in

relation to the two contracted employees, and therefore was not in a

genuine arms-length relationship with their employer, Toure. The

situation here is not similar to a construction industry owner/client

banning an allegedly unsafe employee from its job site and then leaving

the subcontractor to decide whether to deploy the affected employee at

a different site. It is also not similar to the situation in Nova Services

Group Inc., supra. In that case, the contracting party (Hellenic Home)

asked the subcontractor (Nova-Compass) to remove its employee from

the workplace when the employee failed to respond to concerns

regarding food preparation.

In the circumstances, Hellenic took

reasonable action (possibly the best or, even, the only action available

to it) to protect the health and safety of its residents. It was not – as

was the Region in the instance of the Toure employees – imposing a

disciplinary measure on the employee pursuant to presumed or

improperly assumed contractual authority.

The Region’s actions

- 53 -

constitute an intrusion into its subcontractor’s (Toure’s) collective

bargaining relationship, to the extent of the Region becoming a de facto

joint employer.

As there is an interrelationship of operations between the two

entities in respect of cleaning at Region HQ, and centralized control of

labour relations in respect of the employment of Ms. Hosey and Mr. Lam,

there is sufficient basis to find that Toure and the Region carried on

related activities under common control in the circumstances giving rise

to this application.

In light of the unusual nature of the remedy sought in this case,

the question of whether the Board should exercise its discretion to make

a declaration is not an easy one. In the five decades since subsection

1(4) was introduced to the Act, the Board has developed a body of

principles regarding the exercise of discretion under the provision. The

principles set out below – while not exhaustive – are sufficient to guide

the Board in determining whether it ought to exercise its discretion to

grant a declaration in this case.

In KNK Limited, 1991 6117 (ON LRB) (quoted in Sun

Media Corporation, supra, at para. 45), the Board set out the following

principles in the course of addressing the responding party’s claim that

the union had “slept on its rights” by failing to bring its application

sooner. The principles have since been applied in a wide range of

circumstances in which the Board has been called upon to exercise its

discretion under subsection 1(4).

57. In our view, where a trade union has established the

legal requirements for a section 1(4) declaration, as well as

the “mischief” which such declaration was designed to

prevent, a declaration should ordinarily be made unless

there is either particular prejudice or compelling policy

reasons for not doing so. Those policy reasons should be

rooted in labour relations rather than commercial law

considerations, and the alleged prejudice should involve

something more than having to apply a collective agreement

which the related employer has disregarded in the past. If

that were the test, the purpose of section 1(4) would be

undermined, and the related employer could plead, in reply,

the very “mischief” upon which the union relies and for

which section 1(4) is a remedy.

In Sun Media Corporation, the Board offered a simpler

formulation of the KNK Limited requirements. It stated:

- 54 -

47. Where the conditions as set out in s. 1(4) for a

declaration are met and where there is arguable labour

relations mischief as a result of the existence of separate

corporations or business entities then a declaration should

issue.

However, the Board has made it clear that it generally will not

grant a related employer declaration in circumstances where employees

of the second entity are represented by another union at the time of the

application, if it is likely that the declaration “would result in conflicting

bargaining rights and disrupt the established labour relations of the

parties concerned” (Bayritz Construction Ltd., supra, at para. 44).

Every labour relations case presents unique features. The

Board is an expert tribunal endowed with the discretion to grant

particularized remedies where necessary to effect solutions that protect

valid labour relations interests and promote harmonious labour

relations. When circumstances merit, the Board will fashion a creative

remedy responsive to the particular facts before it (see: Widcor Ltd.,

Second Cup Ltd., Humphrey Plumbing and Electrical Services Ltd., and

Ontario Roofing and General Contracting Services Ltd., supra).

A claim (and a determination) that there is “mischief” in the

circumstances of an application will generally be made having regard to

the purposes of section 1(4). Those purposes were summarized in

Etobicoke Public Library Board, 1989 2993 (ON LRB) as follows:

(a) to preserve or protect from artificial erosion the

bargaining rights of the union;

(b) to create or preserve viable bargaining structures; and

(c) to ensure direct dealings between a bargaining agent

and the entity with real economic power over the

employees.

(See: Optilinx Systems Inc. supra, at paras. 21-22.)

The mischief that subsection 1(4) is intended to remedy is

clearly apparent in the circumstances of this application. LIUNA’s

bargaining rights – in this instance, its ability to enforce its collective

agreement with Toure – have been eroded by the Region’s intrusion into

the labour relations of Toure. The removal of Ms. Hosey and Mr. Lam

from the workplace pursuant to (or in violation of) the terms of the

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Commercial Contract effectively deprived the two cleaners of the just

cause protection that their collective agreement afforded them (in

respect of discipline as well as discharge). In its effort to represent their

interests under the collective agreement, the Union is unable to deal

directly with the entity that – in the circumstances of their dismissal –

exercised real economic power over them. While the situation of the

two entities joined by this application may not be “typical” of related

employer applications, it is, to paraphrase the reasons in Brant Erecting

and Hoisting, one in which a bona fide business transaction has

incidentally undermined or frustrated the Union’s collective agreement

rights.

In the Board’s view, there will be no prejudice to the Region in

granting the “limited” declaration sought by the Union, apart from the

prejudice inherent in the declaration itself (i.e., that the Region will have

to defend its actions against a “just cause” standard). The Board

disagrees with the proposition that it should decline to exercise its

jurisdiction on the basis that the Union could have or should have been

aware of the presence of terms such as Section 7.2 and 7.5 in the

Commercial Contract, and should have either brought its application

prior to February 2020, or negotiated collective agreement provisions

with Toure that would have afforded its members some protection from

their operation. As noted in Bayritz Construction Ltd. (at para. 46, citing

KNK Limited, supra, at paras. 52-53), the Board has acknowledged that

it “must be very careful in linking the exercise of its discretion to the

actual or presumed state of a union’s knowledge”.

It is also the Board’s view that the policy reasons for declining

the declaration request do not outweigh the labour relations reasons for

granting it. Historically, the Board has been concerned that granting a

related employer declaration will create a conflict of bargaining rights or

disrupt “established labour relations patterns” (see, for example:

Hellenic Homes for the Aged, supra, at para. 71). The Board has,

furthermore, expressed (in obiter) the view that a “limited scope”

declaration (such as the one requested here) could potentially create a

conflict of bargaining rights (Nova Services Group Inc., supra, at para.

58). The Board should continue to be concerned about such outcomes.

However, it is here persuaded that the requested declaration is

necessary to preserve LIUNA’s collective bargaining rights, and that it

can be drafted in a manner that will ensure that CUPE’s bargaining rights

with the Region are not infringed.

As LIUNA points out, the declaration it has requested will be

limited in both scope and duration. The Board is confident that the

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declaration the Union proposes will not result in a conflict of bargaining

rights as between those held by CUPE, Local 1764 and those held by

LIUNA, Local 183, or an expansion of LIUNA’s bargaining rights.

Furthermore, there is no reason to believe that the declaration will

disrupt the established labour relations of the parties. Both unions will

continue to bargain only with the employers for whom they have

bargaining rights. The Region will not be subject to labour relations

between LIUNA and Toure, so long as it follows the process for

addressing performance issues set out in Section 7.2 of the Commercial

Contract, and is careful as to when and how (or, indeed, if at all) it

invokes Section 7.5 against employees of its cleaning contractor. That

it will be subject to Toure’s collective agreement with LIUNA as a result

of the declaration makes the Region no different than any other entity

that is subject to a declaration under subsection 1(4). The extent to

which it will be subject to another employer’s collective agreement will

be different, however, given the limited scope and duration of the

declaration.

The Region has here raised an additional policy concern that, it

says, militates against granting the requested declaration. It contends

that the declaration will ultimately have a deleterious effect on

subcontracting across the province. In the Board’s view, the Region’s

concern is exaggerated. As should be clear from the foregoing, the

Board’s determination is made – and its discretion is exercised – on the

basis of the particular facts of this case. The Board is confident that the

granting of the declaration will not have an impact on legitimate, arms-

length subcontracting arrangements – i.e., ones in which the

subcontractor retains control over its employees and its labour relations

with their bargaining agent, such that the point of “centralized control

of labour relations” is not reached, and no labour relations “mischief”

arises. The effect of the declaration may, in fact, be to encourage

contracting parties to be more careful as to what powers they reserve

for themselves (or otherwise assume) in their subcontracting

arrangements.

The Board therefore declares that:

(i)

Toure Cleaning Services and the Regional

Municipality of Durham carry on associated or

related activities under common control for the

limited purpose of adjudicating and enforcing the

individual termination grievances of Kimberly Hosey

and Nhattan Lam dated December 16, 2019;

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(ii)

The extent of this declaration is limited to all

matters incidental to the resolution of the

grievances of both Ms. Hosey and Mr. Lam,

including any matters for which the arbitrator

remains seized following the issuance of the

arbitrator’s awards; and,

(iii)

This declaration does not reduce or erode the

bargaining rights held by CUPE, Local 1764 in

respect of employees of the Regional Municipality of

Durham, which remain in full force and effect.

“Kelly Waddingham”

for the Board