ONTARIO LABOUR RELATIONS BOARD  
OLRB Case No: 3094-19-R  
LabourersInternational 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.  
- 14 -  
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 8th 2019”. 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  
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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 performancein 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 servicesis 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  
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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  
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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  
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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:  
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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 d