Toronto council decision to add single union to exclusive construction deals challenged in court

Thestar.com
June 27, 2019
Francine Kopun

A legal challenge over which unions can work on certain municipal construction projects has been filed against the City of Toronto, following a controversial council vote on the matter last week.

The Christian Labour Association of Canada (CLAC) -- supported by the Canadian Taxpayers Federation, the Progressive Contractors Association of Canada, and Merit Open Shop Contractors Association -- said it filed the challenge in the wake of council’s decision to add the Laborers’ International Union of North American (LIUNA) to the list of unions it employs on municipally funded work in the industrial, commercial and institutional (ICI) sector.

Councillors voted on June 19 to add LIUNA to the list of nine unions it currently works with on ICI projects, while also opting out of provincial legislation that would have allowed the city to walk away from its agreements with the nine unions, which were forged in the 1970s.

“The LIUNA Resolution grants LIUNA a privilege not offered to other labour unions thereby imposing an unauthorized distinction on members of the same class,” according to the legal challenge, filed in Ontario Superior Court, which alleges that the resolution is not supported by any existing legislation.

“The LIUNA Resolution undermines the integrity and competitiveness of the City’s procurement policies without any rational justification,” according to the court filing.

The application, under section 214 of the City of Toronto Act, asks that the LIUNA resolution be quashed.

“We had a very delicate balancing act to take into account,” Mayor John Tory said Wednesday of council’s LIUNA decision, adding he was content with his vote in favour of the motion.

Tory said council sought advice before adding LIUNA to the unionized contractors who can bid and were told that while many decisions can be challenged in court, this one would likely stand the test.

“The court case will unfold as it should and I can’t comment on that,” Tory added.

LIUNA said in a statement Wednesday evening: “The City, like any construction employer, is free to enter into a collective agreement with a trade union to ensure it has access to the best trained, highest skilled, safest workers available. This is what the City of Toronto has done by recognizing LiUNA, which is renowned for its world class training facilities.”

The groups behind the legal challenge say they are also concerned about the process behind the LIUNA resolution.

A prepared statement from CLAC and others said the council motion “to enter into a voluntary recognition agreement with LIUNA was not brought forward publicly until the council meeting started on June 19 and there was no public consultation or staff analysis offered to support it. Questions from a minority group of councillors about why the city was not taking an open and inclusive approach to construction procurement were dismissed. The questionable legal standing of the motion was made known to council members, but it still advanced with 20 members of council supporting it.”

According to a report prepared by the city, if council had voted instead to open up the bidding process to a greater number of unions and contractors, the increased competition could perhaps have saved taxpayers $12 million to $48 million per year, based on approximately $600 million of industrial, commercial and institutional construction work annually in Toronto.

However, the report also pointed out that opening up the system could lead to higher costs in other areas -- for example, in spending on inspectors to ensure job sites are safe, and could lead to less diversity in the construction industry because the unions the city works with actively promote education and hiring among socially and economically disadvantaged groups.