Law Times

Law Times • June 22, 2009 The cost of a few missing words I nfrastructure is the buzzword of our times and driving it are the billions of dollars being allocated to potholes and hospitals, bridges and schools, and everything in between. So why are the folks around Hamilton City Hall getting antsy about their upcoming $1.1-billion water and wastewater project? The answer could be a nasty case of sticker shock which could push estimated costs $440 mil- lion higher than anticipated — and it's all because of a missing phrase in the Ontario Labour Relations Act. The problem dates back to 2007 when four City of Hamil- ton workers certified as members of the United Brotherhood of Carpenters and Joiners. The issue became that with the signatures of two of the four workers, they effectively closed the circle on the municipality and from that moment UBCJA became the bargaining agent for all construc- tion carpentry work performed by the City of Hamilton. Further, under the Ontario La- bour Relations Act s. 126, the city then became considered a "con- struction sector employer." The definition of non-con- employer under the struction section reads: "'non-construction employer' means an employer who does no work in the con- struction industry for which the employer expects compensation from an unrelated person." The city applied to the On- tario Labour Relations Board for reconsideration but its ap- plication was denied and is now pushing the government for an amendment to the OLRA which would read: "and munici- palities shall be deemed to be non-construction employers." As it stands, all subcontracts and contractors doing any in- dustrial commercial institutional work must be affiliates to the UBCJA. The effect, is to narrow the field of companies eligible to work on city projects since non- union contractors do not qualify to bid. The initial additional costs were projected to be between $4 and $10 million a year on the usual maintenance, repair, and small construction projects. However, on large infrastruc- ture projects that were in the planning stages in 2007 and are about to go to bidding soon, the additional costs are likely to be substantial, the report predicts. While the report stresses this is only an estimate, it says it is "re- alistic" and pointed to bids post- certification for the water treat- ment plant restoration that were 83 per cent higher than the city's original $29-million estimates. The project was not awarded and is out for rebidding. "The union disputes the report and estimates of cost," says Rick Male, director of financial servic- es for the City of Hamilton. "We are working with them to see if we can reduce costs and we are also working with the Ontario Inside Queen's Park By Ian Harvey General Contractors Association to streamline things." He said Hamilton will adopt standardized contracts, formulat- ed by the Canadian Construction Documents Committee though industry associations will allow bidders a clearer understanding of risk and not force them to add in cost cushions in the event of an issue. The city is also looking at bonding and insurance re- quirements to cut costs. The problem, says Male, is that since the certification no non-union bids have been tabled because of the OLRA, there's no certain way to see if costs are creeping higher as predicted. "Certainly we had the one example of the water treatment plant which we didn't like," he said. "But now all we have are in- dustry experts' opinions of what the job should cost." The real proof will be over the next few months, he said, as the federal infrastructure money flows and the big projects start to ramp up and bids roll in. Of course, this isn't on the agenda of the McGuinty gov- ernment, more so since it would raise the wrath of the unions and there are more pressing fires to put out as the Liberals show some cracks around their foundations with the eHealth debacle and the unpopulated harmonized sales tax plan. The dilemma is a sore point for the non-union Ontario Merit Contractors' Association which is lobbying hard for changes to the OLRA, but admits its message is not resonating with those in power. Dave McDonald, Ontario chairman of the OMCA, says non-union bidders are locked out of the GTA and in cities like Hamilton and Sault Ste. Marie, and in the next five years massive projects will cost taxpayers over a billion dollars more because of the exclusivity clauses imposed by the OLRA. "They're spending over $100 million at Toronto Community Housing, over $200 million at Toronto Water's, Water, and Waste Water Plants, over $200 Million on subway expansion, and $200 million just in the City of Toronto's own capital bud- get each year," says McDonald. "The amount of public money going into these funds should be a concern to every taxpayer in the province." LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. www.lawtimesnews.com I COMMENT Confronting the Constitutional tsunami n my last column, I identified the ac- cess to justice crisis as the greatest constitutional challenge of our time. I argued that it has the potential to cre- ate a constitutional tsunami that may rip through the fabric of our Constitution by washing away the claims of universal- ity of rights and threaten the legitimacy of our Constitution. How do we avoid this dark day? I wish I had the silver bullet that could slay the access-to-justice demon, but I do not. The best that I can do is to suggest a framework for tackling the problem and offer some concrete proposals in this and future col- umns. In this column I argue that the time has come to start rationing civil justice in Ontario. We need a con- ceptual revolution in thinking about access to justice. We need to revisit our sacred cows and come to terms with what is happening on the ground. We need to adjust the system to fit the needs of its users, not try to make the us- ers adapt to the system. We need to break free from the old orthodoxies and con- sider all possibilities. We also need all the players in our jus- tice system to accept responsibility for the problem and to take responsibility for its solution. It is not somebody else's respon- sibility. It is our collective responsibility, as lawyers, jurists, and citizens. We need to begin with the process in the justice system — by slashing it. A decade ago, Justice Rosalie Abella gave a provocative and stirring address at a re- treat of the benchers of the Law Society of Upper Canada. Unfortunately, her words and warnings have become timeless: "We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice . . . People want their day in court, not their years." Recent reports like Code-LeSage and Osborne acknowledge the process prob- lem. They call for changes to the legal and judicial cultures including abandoning the belief in the divine right of unlimited discovery and strengthening judicial inter- vention in pre-trial and trial proceedings. The time has come to consider rationing civil justice. These are strong words and I choose them deliberately. Justice Coulter Osborne used the more palatable concept Second Opinion By Adam Dodek of proportionality but I do not think that the concept of rationing is that dissimilar. The idea of rationing is obviously more politically charged and more urgent, but that is what we need. We ration scarce resources in times of crisis like wars and droughts. We ration valuable resources like healthcare in order to achieve various social goals including universality of access and equal treatment of all users. Ration- ing civil justice is a less extreme proposal, but conveys both the sense of urgency and importance of the issue. We are already rationing at the highest levels of our justice sys- tem. It took a long time, but the Supreme Court of Canada eventually imposed time limits on oral argument and on the length of factums that apply to all liti- gants, unless there are exceptional circum- stances. Lawyers that once claimed that they could not possibly argue their case in an hour or in 40 pages had to adjust. We now accept these rules as the norm. We all know that is more difficult to write a shorter factum than a longer one; to con- dense one's presentation into 15 minutes, instead of speaking for 45. The rationing of civil justice is also oc- curring in our Small Claims Courts and under Simplified Procedure rules. The con- cept should be applied across the board. Rules regarding time limits for written and oral submissions in motions and trials should be applied throughout the justice system. They can be imposed by practice direction by the regional senior justice, the civil rules committee, or if need be they should be authorized through legislative change and imposed by the government. To be clear, the goal is to reduce the costs to litigants of going to court. If lawyers spend less time in court, clients will pay less. More clients will afford to go to court. For more people, justice will be a realistic possibility instead of a pipe dream. Rationing civil jus- tice is not a panacea to the access to justice problem but it is a necessary start. We need to innovate. We have no choice. With much effort and some luck we can turn the tide against the constitu- tional tsunami. LT Adam Dodek is a professor at the University of Ottawa's Faculty of Law. He can be reached at adodek@uOtttawa.ca. PAGE 7

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