Executive Summary: Key Legal and Evidentiary Issues

• Differing approaches within Board jurisprudence to determining working forepersons’ bargaining unit status, including use of the “majority-of-time” test versus the “integral to the crew” analysis
• Whether the Ontario Labour Relations Board unreasonably chose and applied the majority-of-time test to working forepersons supervising mixed crews in the ICI construction sector
• Sufficiency and precision of the employer’s evidence about what the four working forepersons actually did on the application filing date, as opposed to their usual duties
• Treatment of survey/layout and grade-shooting work as “integral” to operating engineers while not being unique to that trade, and the resulting impact on unit placement
• Weight given to contemporaneous documents such as daily work reports, timecards, and log sheets, and whether the Board misapprehended or ignored material evidence
• Allegation that the Board’s approach creates an untenable legal framework that effectively prevents working forepersons on mixed crews from being included in any bargaining unit, and the court’s rejection of that claim.

Facts and procedural history

Thomas Cavanagh Construction Limited, a construction employer operating in Ontario’s industrial, commercial and institutional (ICI) sector, became the subject of a union certification drive by the International Union of Operating Engineers, Local 793. On February 25, 2020, the union applied to the Ontario Labour Relations Board for certification as bargaining agent for a standard operating engineers’ craft unit. The proposed unit covered employees who operated cranes, shovels, bulldozers and similar heavy equipment, those primarily engaged in repairing and maintaining such equipment, and employees engaged as surveyors in the ICI construction sector across Ontario, as well as employees performing similar work in all other sectors of the construction industry in the County of Renfrew, excluding non-working forepersons and more senior personnel.
Most of the issues between the parties were resolved before the Board, leaving one pivotal dispute: whether four working forepersons employed by Cavanagh should be included in the applied-for bargaining unit. These individuals supervised crews in the field but did not exercise managerial authority in the classic sense. They were expected to “work on the tools” as necessary, and their crews were “mixed crews” consisting of both labourers and operating engineers. Their status was crucial because the union’s level of membership support, and therefore its entitlement to certification, turned on whether these four forepersons “counted” as members of the unit on the application filing date.
After 11 days of hearings, the Board issued an Interim Decision on December 24, 2024. It concluded that, as of the application filing date, the four working forepersons were not performing bargaining unit work for the majority of their time and accordingly excluded them from the bargaining unit. Once those four individuals were removed from the unit count, the union had support from over 55% of employees in the unit as of the filing date, entitling it to certification as bargaining agent.
The employer sought reconsideration of the Interim Decision, arguing that the Board had applied the wrong legal test to determine the status of the forepersons and had misapplied that test to the evidence. On February 27, 2025, the Board dismissed the reconsideration request in a Reconsideration Decision. Shortly afterward, on March 3, 2025, the Board issued its Final Decision formally certifying the union as bargaining agent for the operating engineers’ unit in the ICI sector across Ontario and for the broader construction unit in Renfrew County.
Cavanagh then applied to the Ontario Divisional Court for judicial review of all three Board decisions: the Interim Decision excluding the working forepersons, the Reconsideration Decision, and the Final Decision granting certification. The employer asked the court to overturn the Board’s determinations on the grounds that the Board chose the wrong test, misapplied it, made material factual and evidentiary errors, and created an untenable legal framework that effectively prevented working forepersons from being included in any bargaining unit.

Standard of review

All parties accepted that the appropriate standard of review was reasonableness, consistent with the Supreme Court of Canada’s guidance in Canada (Minister of Citizenship and Immigration) v. Vavilov. Under this standard, the Divisional Court’s task was not to decide the matter anew or identify the “correct” interpretation, but to determine whether the Board’s reasoning and conclusions were justified, transparent and intelligible in light of the legal and factual constraints. The court emphasized that minor missteps or alternative plausible readings of the record are not enough to justify intervention; there must be a more fundamental flaw or a misapprehension of the evidence that undermines the rationality of the outcome.
The court also highlighted the Board’s recognized expertise in labour relations, particularly in the specialized area of construction labour relations and bargaining unit determinations. Past appellate and Divisional Court authorities have described the Board’s construction work as “a specialty within a specialty” and have consistently afforded it a high degree of deference when interpreting collective agreements and delineating bargaining units in the construction sector. That background informed how closely the court would scrutinize the Board’s interpretation of its own jurisprudence and its assessment of evidence about work performed in the field.

The legal issue: the appropriate test for working forepersons on mixed crews

The central legal dispute concerned what test the Board should use to determine whether the four working forepersons belonged in the operating engineers’ craft unit on the application filing date. Cavanagh contended that the Board’s established jurisprudence made the “majority-of-time” test inappropriate for working forepersons, especially in the construction context. Under that test, an individual is included in a unit only if, on the relevant date, they spent the majority of their working time either performing the unit’s work “on the tools” or supervising/supporting that work. The employer argued that for working forepersons, the Board’s own cases favored a more flexible approach focusing on whether the foreperson’s work was integral to the performance of the crew, rather than a strict time-based formula.
The Divisional Court carefully unpacked the Board’s case law. It noted that the Board distinguished between two scenarios. In cases where a working foreperson supervised a crew made up entirely of employees in the applied-for bargaining unit (for example, all labourers or all operating engineers), the Board’s prior decisions allowed that foreperson to be included even if they did not spend the majority of the day physically doing the trade’s work “on the tools.” In such cases, the Board looked at whether the foreperson’s duties were integral to the crew’s work as a whole, and did not insist on a majority-of-time analysis.
However, the situation in Cavanagh was different. Here, each working foreperson supervised a mixed crew, comprising both labourers and operating engineers, and at least one foreperson had, for a time, supervised a job where only an operating engineer was present. The Board considered that in mixed-crew situations, a separate labour relations policy consideration came into play: in the construction industry, a worker cannot belong to more than one construction bargaining unit on any given day. To avoid the risk that a foreperson could simultaneously be considered part of two bargaining units (labourers and operating engineers) based on overlapping “integral” supervision, the Board looked to a majority-of-time test focused specifically on the operating engineers’ work. The Board therefore examined the proportion of the forepersons’ day spent working on or supporting operating engineers’ tasks, as distinct from work tied to labourers or others on the crew.
The Divisional Court accepted that the Board had drawn on its more recent Cooper-Gordon decision, which used a majority-of-time approach for a working foreperson supervising a mixed crew in a construction certification case. While an earlier decision, Birnam Excavating, appeared to take a different approach, the court treated that divergence as an example of acceptable inconsistency within administrative jurisprudence. Administrative decision-makers are not bound by strict stare decisis, and conflict between past decisions does not by itself make a new decision unreasonable. On that basis, the court concluded that the Board’s choice to apply the majority-of-time test to working forepersons supervising mixed crews was a rational and defensible reading of its own jurisprudence and labour relations policy, and therefore reasonable.

Evidentiary assessment and application of the test

The employer also attacked the way the Board applied the majority-of-time test, accusing it of misapprehending evidence and failing to explain critical aspects of its analysis. One focus of this challenge was the Board’s treatment of the working forepersons’ survey/layout and grade-shooting activities. In its Interim Decision, the Board accepted that such tasks were important and integral to the work of operating engineers. However, it also found that these tasks were not unique to operating engineers and were performed in support of broader crew work, including labourers’ activities. As a result, the Board concluded that survey and grade-shooting responsibilities, standing alone, were not enough to place the forepersons within the operating engineers’ craft unit; more specific evidence was required to show that on the application filing date the majority of each foreperson’s time was spent performing or supporting the work of operating engineers rather than other trades.
The employer argued that the Board referred to unspecified “other factors” that would be required, but failed to set out what those were or how they were applied, rendering the decision opaque. The Divisional Court rejected this argument. It interpreted the Board’s reference to “other factors” as a shorthand for concrete, date-specific evidence about the particular tasks each foreperson performed on the filing date and how those tasks related to the operating engineers’ work as compared with other crew members. The court noted that the Board went on, in significant detail, to analyze the testimony and documentation for each of the four forepersons.
For example, the Board accepted that one foreperson, Mr. Dillabaugh, spent about an hour on the filing date calculating grade, which supported the operating engineer’s work. But Dillabaugh also testified that he spent considerable time “in the hole” working alongside labourers. Because he could not reliably say how much of his day was spent on operators’ work versus labourers’ work, the Board could not find that he met the majority-of-time threshold for the operating engineers’ unit. The Board performed similar assessments for the other forepersons, examining their recollection of that specific day and the corroborative value of daily work reports, timecards, and logs.
The employer further complained that the Board overlooked the daily work reports and other documents. The Divisional Court pointed out that the Board summarized and considered these materials in its reasons, including identifying where it had doubts about the accuracy or probative value of particular logs. In doing so, the Board engaged in a classic evaluative exercise: weighing conflicting recollections, documentary entries, and the lack of precise time allocations on the application filing date. Under Vavilov, that sort of weighing of evidence is at the core of a tribunal’s role and is rarely disturbed unless there is a fundamental misapprehension. The court held that no such misapprehension had been shown.
Ultimately, the Board concluded that Cavanagh had not met its onus of proving that any of the four working forepersons spent the majority of their time on the application filing date either working on the tools of operating engineers or supervising and supporting that craft’s work. Without sufficiently detailed, credible evidence about what the forepersons actually did on that specific day, as distinct from what they typically did in the course of their jobs, the employer’s case failed. The Divisional Court found this to be a reasonable application of the chosen test.

Alleged “untenable” framework for working forepersons

As its final legal argument, Cavanagh contended that the Board’s approach effectively created an untenable framework in which working forepersons supervising mixed crews could not realistically be placed in any construction bargaining unit, despite being, in the employer’s view, presumptively eligible for inclusion. According to this critique, the majority-of-time test, coupled with the Board’s treatment of survey/layout work, erected a barrier that excluded working forepersons from all units.
The Divisional Court found this argument unsupported by the Board’s jurisprudence or the record. It noted that the concept of “presumptive eligibility” for working forepersons is not a recognized doctrine in the Board’s case law. Rather, the consistent principle is that the party seeking to include an individual in an applied-for bargaining unit bears the onus of proving, on the evidence, that the person was performing that bargaining unit’s work on the relevant date. In the case of mixed crews, that burden requires showing that the majority of the foreperson’s work time on that day was directed toward the craft seeking certification. The Board’s framework, the court held, does not render inclusion impossible; it simply requires precise, date-specific proof. Where such evidence exists, working forepersons may be included. In Cavanagh’s case, the problem lay in the evidentiary record, not in the legal framework.

Outcome and costs

After reviewing the Interim Decision, the Reconsideration Decision and the Final Decision of the Ontario Labour Relations Board through the lens of reasonableness, the Divisional Court concluded that the Board’s selection and application of the majority-of-time test in the context of mixed crews, its treatment of survey/layout work and other tasks, and its assessment of the evidence relating to the four working forepersons all fell within the range of acceptable, defensible outcomes. The Board’s reasons, read in light of the history and context of the proceeding, demonstrated a coherent line of analysis from the evidence to the conclusion that the forepersons were not part of the operating engineers’ bargaining unit on the application filing date. As a result, the court dismissed the employer’s application for judicial review and left intact the Board’s certification of the International Union of Operating Engineers, Local 793 as bargaining agent for the operating engineers’ craft unit.
On the issue of costs, the parties had agreed that, if the application was dismissed, Cavanagh would pay a fixed amount to the union. The Divisional Court therefore ordered that the employer pay the union $6,000 in costs, all-inclusive, and made no separate monetary award in favour of the Ontario Labour Relations Board. The successful parties were thus the union and the Board, with the total amount ordered in the union’s favour being $6,000 in costs payable by the employer.