Annual Reports play a very important function in the administration and operation of administrative tribunals. In virtually all of Ontario's administrative tribunals the role and purpose of the Annual Report is as a public channel of communication between the tribunal and the government ministry responsible for its operation and ultimately the Legislature and the public. In circumstances where the tribunal or another party appointed by the Minister has the power to appoint adjudicators those adjudicators may be unknown to the Minister, the Legislature, litigants before the tribunal and the public but for the tribunal's reporting in its Annual Report to the minister. Another important role of the Annual Report is to clearly communicate to the public and stakeholders before the said tribunal the role and function of its staff. Persons acting as counsel for the tribunal ought to be clearly held out as such in these public documents. A lack of timeliness in the publication of these public documents can deprive litigants appearing before the subject tribunals of a fair and impartial hearing if they do not have the information at hand to challenge the very legal legitimacy of the panel adjudicating a matter. (see - Rachel Mendelson's article in TorStar June 16, 2014)
In 1981 the Ontario Labour Relations Board published its very first Annual Report. Here are some excerpts from that Annual Report. Note that the Registrar of the Board and the Board
Solicitor are held by separate persons and that the responsibilities attached to each are clearly articulated for litigants and the public to see and know.
ONTARIO LABOUR RELATIONS BOARD
ANNUAL REPORT 1980-81
ONTARIO LABOUR RELATIONS BOARD
Chairman GEORGE W. ADAMS
Registrar D.K. AYNSLEY
Solicitor H ARRY FREEDMAN
TABLE OF CONTENTS
Message from the Chairman
A History of The Act
Highlights of Board Decisions
Staff and Budget
Appendix -Case Control Management
MESSAGE of THE CHAIR MAN
It gives me great pleasure to introduce the Board's first ANNUAL REPORT. The publication provides an excellent overview of the Board's activities during fiscal year 1980-81. It also contains a helpful summary of the Board's structure and biographical sketches of members and vice-chairmen. I congratulate our solicitors for the obvious effort required to assemble the document - a responsibility that will now reside with Solicitor's Office on an ongoing basis.
Fiscal year 1980-81 was marked by an ever increasing caseload matched by the increasing effectiveness of the Board's labour relations officers in achieving settlements. Without their good offices and the equally important good faith efforts of the parties, the Board would require substantially more resources to process the matters before it with the same expedition. Moreover, the Board is committed to settlement activity as the preferable method for resolving labour relations conflict. On the other hand, fiscal year 1980-81 continued to witness an unfolding of new and more extensive remedies for unfair labour practice violations evidencing the Board's dedication to a serious enforcement of important statutory rights. Vice-Chairmen and Board Members provided thoughtfully reasoned decisions in a number of important cases, the highlights of which are reviewed in this report. In my opinion, their work over the previous years demonstrates why this Board continues to be one of the most highly respected administrative agencies in the country.
The year also saw the introduction of new internal administrative arrangements aimed at greater effectiveness in case monitoring and processing; a refinement of the Board's waiver of hearing certification program; an expansion of staff development programs; and the initiation of a number of co-operative activities with labour and management groups. The Board and the Labour Law Subsection of the Ontario Branch of the Canadian Bar Association jointly sponsored a lecture by John Fanning, Chairman of the U.S. National Labour Relations Board, at the Subsection's meeting held in December, 1980. I am also very pleased with the success of the cross-assignment program with labour and management involving our labour relations officers. These exchanges have provided new insights and awareness to the individual participants as well as to the participating organizations. All signs point to a continuation of these activities. A related exchange with the Conciliation and Mediation Branch of the Ministry of Labour has proved equally successful.
On behalf of the Board I want to thank all members of the staff for their vital support over the past year and the labour/ management community for its continuing co-operation.
George W. Adams, Chairman
This is the first time, since its inception that the Ontario Labour Relations Board has published its own Annual Report. In previous years, the only review of the Board's activities has been by way of a brief note in the Ontario Ministry of Labour Annual Report.
In view of the ever-expanding role played by the Board and its increasing work-load, there is a need for more substantial information on its yearly progress. This Annual Report is intended to fill such a need. The first volume covers the fiscal year April I, 1980 to March 31, 1981.
The main purposes of the Board's Annual Report are: to provide a statistical summary of the work-load carried by the Board during the year; to highlight some of the more important decisions of the Board; and to provide a brief report of court activity involving Board proceedings or Board orders. The Report will also contain up-to-date information on the organization of the Board, its personnel, and administrative developments that may be of interest to the public.
Since this is the first Board Annual Report, it contains a brief account of the history and development of The Labour Relations Act, as it affected the development of the Ontario Labour Relations Board.
II A HISTORY OF THE ACT
In 1943, the Ontario Legislature engaged in one of the first attempts in Canada to institute an effective scheme of compulsory collective bargaining. The Collective Bargaining Act, 1943, S.O. 1943, c. 4 came about asa result of public hearings before a select committee of the Provincial Legislative Assembly. Although the establishment of a "Labour Court" was not strenuously lobbied for by any of the interest groups which made submissions to the Select Committee, it was this option which the Select Committee saw fit to endorse. The Committee's report, in the form of a draft bill, was submitted to the Legislature on March 25th, 1943, and when enacted on April 14th, 1943, legitimized collective bargaining in Ontario under the Ontario Labour Court, which was a division of the Supreme Court of Ontario.
The Act of 1943 abolished the common law doctrines of conspiracy and restraint of trade as they had applied to trade unions, and gave employees a right to participate in union activity. A union was permitted to apply for certification as the bargaining agent for a group of employees. The Court had power to ascertain the appropriate unit for the purpose of collective bargaining. It has been pointed out that:
". . .the shape and structure of the collective bargaining system was to be determined by a court which was expected to develop policies that would promote orderly collective bargaining. Itwas recognized that the scheme of the Act involved both administrative andjudicial functions. The Court was also empowered to delegate its non-judicial responsibilities so that it could develop an administrative infra-structure to support its 'judicial' role." (MacDowell, R.O., "Law and Practice before the Ontario Labour Relations Board, (1978), I Advocate's Quarterly 198 at 200.
The Act contained several features which are standard in labour relations legislation today - management dominated organizations could not be certified; managerial employees were excluded from the Act; employers could not discriminate against employees for participation in union activity; employers were required to recognize a certified bargaining agent; and there was a duty to bargain in good faith. The Labour Court had broad remedial powers - something which the Ontario Labour Relations Board would not have for many years. The Labour Court was the only forum for resolution of disputes arising under a collective agreement. This function was to be performed without cost to the parties. Itis now performed by private boards of arbitration, and, when the disputes arise in the construction industry, by the Labour Relations Board.
The Ontario Labour Court was to have a short lifespan (it opened in June, 1943, and heard its last case in April, 1944). In his book, The Ontario Labour Court 1943 - 1944, (Queen's University Industrial Relations Centre, Kingston, 1979), John A. Willes gives the following reasons for the Court's early demise:-
". . .the trade unions were complaining about the high cost of proceedings before the Court, the Judges were not eager to deal with labour matters under the Act, and most important, the Conservative party, that had promised to repeal the legislation if elected, formed the government in Ontario in the Spring of 1944."
The immediate circumstances which brought about the demise of the Labour Court (and hence the formation of a Board) was a wartime move by the Federa!Government to centralize labour relations law. Owing to the division of powers between the Dominion and Provincial Governments, control over labour relations in Canada is shared between the two levels of government depending on whether the undertaking falls under Federal or Provincial jurisdiction. In 1907, the Federal Government attempted to bring labour disputes in public utilities and coal mines under Federal control by means of The Industrial Disputes Investigation Act. Disputes in other industries were often brought voluntarily within the provisions of the Act. In 1925 this Act was held by the Privy Council to be ultra vires the Dominion Parliament because it infringed on the Provincial power over "property and civil rights." ( Toronto Electric Commissioners v. Snider,  A.C. 396;  2 D.L.R. 5)
The Act was subsequently narrowed so as to encompass only those industries within the Federal jurisdiction. This left labour relations largely in the hands of the Provincial legislatures, although by virtue of a clause in the Federal Act, Provinces could, in effect, "opt in" to the Federal system (all the Provinces except Prince Edward Island exercised this option for a time). However, given the constitutional situation in Canada, decentralization oflabour policy was inevitable and the Ontario regime was representative of this decentralization. However, the fact that Canada was at war allowed the Federal Government to rely on its emergency power to pass Order in Council P.C. 1003. This Order adopted the general principles of the American Wagner Act, and called for an independent regulatory authority. The Ontario Labour Court was replaced by the Ontario Labour Relations Board, pursuant to The Labour Relations Board Act, 1944, S.O. 1944, c. 29, which was subject to the federal Wartime Labour Relations Board. The chairman of the fledgling Ontario Board was Jacob Finkleman, who had been the registrar of the Labour Court.
In 1947, the Ontario Labour Relations Board became independent of the Federal Government by virtue of The Labour Relations Board Act, 1947, S.O. 1947, c. 54. The next year, The Labour Relations Act, 1948, S.O. 1948, c.51, was passed. The 1948 Act, which was enacted in anticipation of new Federal legislation, repealed the earlier Labour Relations Acts and empowered the Lieutenant-Governor in Council to make regulations "in the same form and to the same effect as that . . . Act which may be passed by the Parliament of Canada at the session currently in progress. ..."This Act was basically transitional in nature, since work was already under way on the drafting of separate Provincial legislation, which made its first appearance in The Labour Relations Act, 1950, S.O. 1950, c. 34.
The major function of the Board was, and still remains, certifying trade unions as bargaining agents. The history of the Board is largely a history of the acquisition of new powers and functions, asnew ways of dealing with the problems inherent in industrial relations developed. Initially, however, the Board's role was fairly limited. There was no enforcement mechanism at the Board's disposal in 1950. The major enforcement method was prosecution, in which case the Board had to grant consent to prosecute. The Board had the power to declare a strike or lockout unlawful, but this in itself fell short of being a very complete remedy. In a situation where an individual had been refused employment, discharged, discriminated against, threatened, coerced, or otherwise dealt with contrary to the Act, the appropriate remedy lay in an inquiry by a conciliation officer who then reported to the Minister who in turn could make an appropriate order.
Thus, outside of granting certifications and decertifications, the Board's power was quite limited. The power to make certain declarations, determinations, or to grant consent to prosecute under the Act was remedial only in a limited way. Of some significance during the fifties was the Board's acquisition of the power to grant a trade union "successor" status. ( The Labour Relations Amendment Act, 1956, S.O. 1956, c. 35). In 1962, the complementary section providing for the preservation of bargaining rights in the case of "successor employers" was passed and was later expanded so as to preserve existing collective agreements. ( The Labour Relations Amendment Act, 1961-62, S.O. 1961-62, c. 48; The Labour Relations Amendment Act, 1970, S.O. 1970, c. 85.)
The Labour Relations Amendment Act, 1960, S.O. 1960, c. 54, made a number of changes in the Board's role. Most importantly, the Board received the authority to order reinstatement with or without compensation. In conjunction with this new power was the power to designate a field officer to investigate complaints. The Board's reinstatement and compensation orders could be filed in the Supreme Court of Ontario and were enforceable as orders of that Court. The Board also received the power to refer jurisdictional disputes to a new jurisdictional disputes commission which had the power to make interim orders or directions. The Board was given limited power to review the directions. As with the Board's reinstatement and compensation orders, the interim orders could be filed with the Supreme Court and thus become enforceable as orders of that Court. The Board also received the power to set a terminal date for the filing of membership evidence and evidence opposing certification, and the discretion to refuse to "carve out" a craft unit where there was a history of industrial organization in a plant. In 1960 provision was also made for pre-hearing repre sentation votes.
In 1962, The Labour Relations Amendment Act, 1961-62, added new provisions to the Act in order to respond to unique problems which were evident in the construction industry. This industry was given a separate but somewhat similar regime under the Act in response to recommendations made in the "Goldenberg Report" ("Report of The Royal Commission on Labour Management Relations in the Construction Industry," March, 1962). Provision was made for determination of bargaining units by reference to geographic areas rather than particular projects. The Board, in consultation with interested parties, divided the province geographically for the purpose of certification in the construction industry. Labour policy with regard to the construction industry has continued to evolve. Legislation was introduced in 1977 to provide for province-wide bargaining in the industrial, commercial, and institutional sector of that industry in response to the recommendations contained in the "Franks Report" ("Report of the Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry in Ontario,"May, 1976). ( The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31.) Further amendments were made to the Act in relation to the construe· tion industry in 1979 and 1980. The Labour Relations Amendment Act, 1979 (No. 2), S.O. 1979, c. 113, and The Labour Relations Amendment Act, 1980, S.O. 1980,c. 31, extended the bargaining rights held by trade unions in the construction industry for any particular employer in relation to the industrial, commercial and institutional sector of the industry; prohibited selective strikes and lock-outs; and provided for an expeditious ·ratification procedure. ·
In 1970, by virtue of The Labour Relations Amendment Act, 1970, the Board received a significant extension to its remedial authority. Provision was made for authorization of a Labour Relations Officer to inquire into certain complaints with a view to settling the matters. The most interesting addition to the situations in which the Board could make remedial orders was in the case of a breach of the newly created "duty of fair representation." This duty, imposed on trade unions, required them not to act in a manner which was arbitrary, discriminatory, or in bad faith in their representation of employees for whom they hold bargaining rights. More recently, this duty has been extended to cover referral of persons to work. The Board also received the power to make "cease and desist" orders with respect to unlawful strikes and lock-outs in the construction industry, which would be filed with the Supreme Court and enforceable as orders of the Court.
A major increase in the Board's remedial powers under The Labour Relations Act occurred in 1975. ( The Labour Relations Amendment Act, 1975, S.O. 1975, c. 76). The Board was permitted to authorize a Labour Relations Officer to inquire into any complaint alleging a violation of The Labour Relations Act. A settlement reached by the parties and put into writing was binding on the parties, and a breach of such settlement could be dealt with in the same fashion as a breach of a provision of the Act. The Board's remedial powers were extended to all violations of the Act, and orders of the Board were enforceable in the same way that an order of the Supreme Court is enforceable. The Board also received authority to make "cease and desist" orders with respect to any unlawful strike or lock-out. Itwas in 1975 as well, that the Board'sjurisdiction was extended through section I 12a, to enable it to determine grievances in the construction industry referred to it by one of the parties to a collective agreement.
In June of 1980, The Labour Relations Amendment Act, 1980 (No. 2), S.O. 1980, c. 34, was passed providing for compulsory check-off of union dues and the entitlement of all employees in the bargaining unit to participate in ratification and strike votes. Provision was also made for the Minister of Labour to direct a vote of the employees in the bargaining unit on their employer's final offer at the request of their employer.
IV THE BOARD
The legislative policy regarding labour relations in the Province of Ontario is set out in the preamble to The Labour Relations Act as follows:
". . .it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and proced ure of collective bargaining between employers and trade unions as the freely designated representatives of employees."
With this policy as a basis, the Act confers on the Ontario Labour Relations Board the authority over many important aspects of collective bargaining such as unfair labour practices, unlawful strikes and lock-outs and jurisdictional disputes. In order to carry out this mandate the Board is composed of a Chairman and an Alternate Chairman, several Vice Chairmen and a number of Members representative oflabour and management respectively in equal numbers. These appointments are made by the Lieutenant-Governor in Council.
Created by statute, the Ontario Labour Relations Board is best described as a quasi judicial body, combining as it does, administrative andjudicial functions. The Board attempts to avoid being overly technical or legalistic in making its determinations and relies heavily on the efforts of its Labour Relations Officers in encouraging settlements without the need for formal hearings. The Board strives to keep its procedures informal, expeditious and fair.
The Board, under section 95(1) of The Labour Relations Act, R.S.O. 1970, c. 232, has the exclusive jurisdiction to exercise the powers conferred upon it by or under the Act and to determine all questions of fact or law that arise during any hearing before it. The Board's decisions are not appealable and a privative clause in the statute limits the scope for judicial review. However, the Board has the power to reconsider any of its decisions, either on its own initiative or at the request of an affected party.
The Board has the power to determine its·own practices and procedures. The publication entitled Rules of Procedure, Regulations and Practice Notes (Queen's Printer, Ontario) contains the established regulations, procedures and practices of the Board.
The Ontario Labour Relations Board has a somewhat limited role to play with respect to much of the collective bargaining viewed as falling within the public sector. For example, the Board does not have jurisdiction over crown employees, policemen or firemen, and has only a limited jurisdiction with respect to teachers in the schools and community colleges in the province. See, The School Boards and Teachers Collective Negotiations Act, S.O. 1975,.c. 72 and The Colleges Collective Bargaining Act, S.O. 1975, c. 74. On the other hand, the Board has full jurisdiction over employees employed by municipalities and hospitals: The Board is also given an important role under The Occupational Health and Safety Act, 1978, S.O. 1978, c. 83.
Apart from its adjudicative function, the Board's operations may be broadly divided into the following sections: (a) Administrative Division, (b) Field Services and (c) Office of the Solicitor.
(a) ADMINISTRATIVE DIVISION
The Registrar and Chief Administrative Officer is the senior administrative official of the Board. He is responsible for supervising the day-to-day administrative and field operations of the Board. Every application received by the Board enters the system through the Registrar's office. He determines the hearing dates, assures the effective and speedy processing of each case and communicates with the parties in all matters relating to the scheduling of hearings, the holding of votes or particular problems in the processing of any given case.
The Ontario Labour Relations Board is faced with a substantially increasing caseload, constraints on its access to public funds, and the continuing demands of the parties appearing before it for quick justice. Faced with these conflicting pressures, the ability of the Board to efficiently manage its caseload, within the resource parameters set for it, underpins much of its contribution to labour relations harmony in this province.
The Chief, Programme Development and the Senior Labour Relations Officer report directly to the Registrar and Chief Admin.istrative Officer. The former manages the day-to-day administrative operation and the latter the field services. An Administrative Committee comprised of the Chairman, Alternate Chairman, Registrar and Chief Administrative Officer, Chief, Programme Development, Senior Labour Relations Officer and Office Manager meets monthly to discuss all aspects of Board administration and management.
The administrative areas of the Board, include: office management, case monitoring, and library.
1. Office Management
An administrative support staff of approximately 63 people, headed by an Office Manager who reports to the Chief, Programme Development, and a senior clerical supervisor, processes all the applications received by the Board.
Four primary sections deal with applications:
(1) The certification section handles all applications for certification, termination and accreditation.
(2) The sundry section processes all other applications including unfair labour practice complaints, grievances in the construction industry and illegal strike and lock-out proceedings.
(3) The vote section deals with all representation votes.
(4) The clerks section reviews evidence in support of, or opposition to, trade unions filed with the Board in certification and termination applications and prepares the material necessary for the Board to conduct hearings and when necessary, attends hearings to assist the Board.
The bulk of the Board's caseload is made up of applications for certification, unfair labour practice complaints and referrals to arbitration of construction industry grievances. In this fiscal year the Board received a total of 2,836 applications and complaints.
The Registrar's office is responsible for setting hearing dates for all cases and maintaining and up-to-date availability roster of all Vice-Chairmen and Board Members for scheduling purposes. To assist the Registrar with these duties the Board has recently created the position of Registrar' s Clerical Assistant.
2. Case Monitoring
Because delay in case handling directly affects the Board's objective of disposing of all cases as quickly and efficiently as possible, a case monitoring and control system was developed in fiscal year 1980-81. The control system was initiated after studying a representative period and assessing how long the average case should take at each stage of its processing, from application to disposition. Control dates have been established at each stage of processing for different types of cases:
By monitoring cases on a day-to-day basis, the Board is able to pinpoint problems and delays and address them quickly. The monitoring system and its reports provide vital statis tical information to senior management that is used as a basis for recommendations regarding improvements or changes in Board practices and procedures which can lead to increased pro ductivity and better service to the community.
3. The Library
The Ontario Labour Relations Board library employs a full-time professional librarian and a library technician to manage a collection of approximately 750 texts, 150 journals and 25 case reports in areas of industrial relations, labour, contract, evidence, constitutional and administrative law. The collection includes decisions from other jurisdictions, including the Canada Labour Relations Board, the National Labour Relations Board and provincial labour boards from across Canada.
The library staff provides research services for Board staff and assists the library users.
A card index to the Board's monthly Decision Report provides easy access to reported decisions by case name, subject, statute, file number and cases considered.
(b) FIELD SERVICES
The Board believes that the objects of the Act are best served if labour relations disputes are resolved on the basis of mutual accommodation between the parties. Towards this end, the Board provides settlement assistance to the parties in most matters brought before it. Seventeen highly skilled Labour relations Officers, under the direction of a Senior Labour Relations Officer, provide this service. Five of the most experienced officers have been appointed group leaders in order to assist the Senior Labour Relations Officer with the administration of this section.
1,490 case assignments were made to Labour Relations Officers in fiscal year 1980-81. The assignment load increased by some 321 cases in fiscal 1980-81 over fiscal 1979-80. The complement of officers remained unchanged over the year.
The assignments made to Labour Relations Officers fall into four broad categories:
The Board holds to the view that the less confrontation and formal disagreement occasioned by an application for certification, the better the atmosphere for the negotiation of the first agreement. In keeping with this view, the Board has moved to make greater use of its settlement officers in certification proceedings.
(i) Waiver of Hearing
The Board instituted a waiver of hearing proced ure in respect of certification applications in fiscal year 1980-81. Under this pro cedure a Labour Relations Officer is assigned responsibility for reviewing the filings in each application and, in conjunction with the Senior Labour Relations Officer, making an assessment as to which cases appear to be uncontested. Where the parties appear to be in agreement, or close to it, with respect to the description of the bargaining unit, and where there are no discrepancies with respect to the documentary evidence filed with the application, the Labour Relations Officer contacts the parties to ascertain if it is necessary to hold a formal hearing. In those cases where the parties agree to waive a hearing, the application is disposed of on the basis of the materials and evidence filed with the application. In fiscal year 1980-81 the parties were contacted in 269 . cases and given the opportunity to waive a formal hearing. In 205 cases, or 76% of the cases considered to be appropriate for waiver, no formal hearing was required.
(ii) Hearing Day Activity
The Board hears all certification applications on the same day of the week so as to facilitate its settlement efforts. A team of Labour Relations Officers, under the direction of the Senior Labour Relations Officer and a group leader, are assigned to certifications each week. These officers are briefed as to the contentious issues in the 20 to 25 certification applications scheduled to be heard by the Board each week and assigned individual cases. They attempt to resolve disputes related to the identity of the employer, the description and composition of the bargaining unit, and the number of employees within the bargaining unit. 182 of the 292 cases assigned to officers on the day of the hearing in fiscal year 1980-81 were disposed of on the basis of agreements between the parties.
In those certification cases where the parties are unable to identify the employer, or to agree on the scope or composition of the bargaining unit, or on the number of employees coming within the bargaining unit, a Labour Relations Officer is usually appointed to meet with the parties subsequent to the hearing day and inquire into the matters in dispute. The inquiry takes the form of a hearing chaired by the Labour Relations Officer. The Officer calls and examines witnesses who have knowledge of the matters in dispute. The parties are given the opportunity to cross-examine the Board's witnesses and to call their own, if they wish. The evidence is transcribed on tape and a record compiled for use by the Board in making its determination. 247 examination assignments were made to Labour Relations Officers in fiscal year 1980-81. 94 reports were submitted to the Board. In the remaining 153 cases the issues in dispute were settled with the assistance of the officer during the course of the inquiry so that a formal report was not required.
2. Unfair Labour Practices:
Each unfair labour practice complaint filed with the Board is scheduled for hearing within 28 days of the date of filing and assigned to a Labour Relations Officer. The Labour Relations Officer is responsible for assisting the parties to resolve the dispute and in so doing works to the time limit established by the fixed hearing date. 736 unfair labour practice assignments were made to Labour Relations Officers in fiscal year 1980-81, up 139 assign ments over the previous year. The Board's officers provide settlement assistance in a wide range of unfair labour practice complaints including:
alleged discriminatory treatment (including discharge from employ ment) for union activity.
alleged bargaining in bad faith. alleged unlawful strikes and lock-outs. alleged breaches of the duty of fair representation.
With the Board moving to more complex and far-reaching remedies in unfair labour practice cases, the role of the Labour Relations Officer has been expanded to include a post-hearing . involvement. For the first time Labour Relations Officers were assigned to assist the parties with the implementation of Board remedial orders in fiscal year 1980-81.
The effectiveness of the Board's officers is attested to by the fact that 80% of the unfair labour practice complaints filed with the Board in 1980-81 were resolved between the parties without the need for a formal hearing.
3. Construction Industry Grievances:
The Act was amended in 1975 to provide that either party to a construction industry collective agreement could refer a griiwance concerning the interpretation, application, administration, or alleged violation of the agreement to the Board for final and binding determination. The number of such grievances referred to the Board has grown steadily and reached 507 in fiscal year 1980-81. A Labour Relations Officer is assigned to meet with the parties in each of these cases and attempts to mediate a settlement to the dispute. 90% of the construction industry grievances disposed of by the Board in 1980-81 were resolved, with the assistance of an Officer, without the need for a formal hearing.
Approximately 80% of the matters coming before the Board this year were disposed of with the assistance of a Labour Relations Officer and without the need for a hearing. In response to a case load growing in both volume and complexity, the Board's field staff provided the basis for the overall level of performance of the Board in fiscal year 1980-81. More importantly, during this period the Board's field staff made a marked contribution to sound and harmonious labour relations within the province.
(c) OFFICE OF THE SOLICITOR
The Office of the Solicitor, under the direction of the Senior Solicitor of the Board, reports directly to the Chairman. A solicitor assists the Senior Solicitor in carrying out the functions of this office. In addition, each year the Board employs several articling law students to assist in the solicitors' work.
The Office of the Solicitor is responsible for providing the legal assistance required by the Board in all facets of its operations. The solicitors engage in legal research and provide legal advice to the Chairman, Vice-Chairmen and Board Members in their day-to-day functions. They provide legal opinions to the Board and prepare memoranda relating to the wide variety of legal issues that arise during Board proceedings. The Office of the Solicitor is responsible for preparing all of the Board's legal forms and other legal documents required for use by the Board. Board proced ures, practices and policies are constantly reviewed by the Office of the Solicitor. When preparation or revision of practice notes, Board Rules or forms become necessary, the Office of the Solicitor is responsible for undertaking those tasks.
The Senior Solicitor is active in the staff development programme of the Board and the solicitors regularly meet with the Board's field staff to keep them advised of legislative, Board and judicial developments that may affect their day-to-day work. The solicitors are available for consultation by these officers on legal issues that may arise in the course of their work. At regularly scheduled field staff meetings, the solicitors prepare written material for distribu tion and discussion among the field staff relating to recent decisions of the Board or other tribunals which may affect the discharge of their duties. The Senior Solicitor also advises the Board Librarian on the legal research material requirements of the Board and on the library's general acquisition policy.
Another function of the Office of the Solicitor is the representation of the Board's interest in court, when matters involving Board proceedings or Board orders become the subject of proceedings in court, as when an application forjudicial review of a Board order is filed or an application is made by way of stated case to the Divisional Court. Where outside counsel is retained to represent the Board, the Senior Solicitor in consultation with the Chairman, briefs and instructs such counsel on the Board's position in relation to the issues raised by thejudicial proceedings. The Office of the Solicitor is also responsible for the preparation and compilation of documents that the Board may be required to file with the court in relation to such pro ceedings.
The Office of the Solicitor maintains an information service through which any person may obtain, by telephone, general information relating to The Labour Relations Act, the Regulations, procedures and practices of the Board, and other related legislation. It is also possible for a member of the public to obtain such information at a personal interview with a member of the Board's legal staff. The solicitors also receive and respond to written inquiries coming from the public.
The Office of the Solicitor is responsible for the publication of the Ontario Labour Relations Board Report, a monthly series of selected Board decisions which commenced in I 944. The Senior Solicitor is Editor of this publication. That office also produces a publication titled "A Guide to the Ontario Labour Relations Act", which is an explanation in laymen's terms, of the major provisions of the Act. The solicitors of the Board are responsible for the periodic revision of this publication. Commencing with this first issue, the Office of the Solicitor has also undertaken the responsibility for the preparation of the Board's Annual Report.
V HIGHLIGHTS OF BOARD DECISIONS
Union Breached Duty of Fair Representation in Seeking Dismissal of Grievor
A union official gathered a petition addressed to the employer threatening an unlawful strike if the grievor, who was suspected of having leaked certain·information to the press, was not dismissed. Other union officials signed the petition. The employer terminated the employment of the grievor. The trade union, at the request of the grievor processed a grievance against the dismissaL The grievance was dismissed by a board of arbitration. The grievor's request to apply forjudicial review was denied by the union. The grievor alleged that the union had contravened section 60 of The Labour Relations Act. The Board held that although the refusal to apply forjudicial review did not constitute failure to represent fairly, the conduct of the union officials in seeking the grievor's dismissal did. The Board held that the officials' conduct could not be justified on the basis of a need "to go along with the crowd." The Board further held that the subsequent taking of the grievance against dismissal to arbitration did not cure the unlawful conduct. ( Toronto East General and Orthopaedic Hospital Inc., [1980 OLRB Rep. Apr. 555).
Relocation of Company Tainted by Anti-Union Motive - Extensive Remedies Ordered The employer had decided to relocate its plant in Hamilton to several other locations.
The union filed an unfair labour practice complaint alleging anti-union motive. In addition, the union claimed that the failure of the employer during negotiations to disclose to the union its decision to relocate, was bad faith bargaining and that the displacement of employees was an unlawful lock-out. The Board found that at the time bargaining was carried out, the decision to relocate had not been finalized and that therefore the employer was not obliged to disclose these tentative plans on its own initiative. The complaint as it related to bad faith bargaining failed. The Board held that the facts did not meet the definition of "lock-out" in the Act and consequently that part of the complaint was dismissed as we!L However, the Board held that the decision to relocate constituted an unfair labour practice in that the decision was tainted by anti-union motive. The Board's remedial order included directing the employer: to offer employees their former jobs at the new locations and to pay their relocation expenses; that the union be given access to the employees at the new locations for purposes of organization; and that the union be reimbursed for its organization costs. ( Westinghouse Canada Ltd.,  OLRB Rep. Apr. 577).
Refusal to do Unsafe Work - Extent of the Right Discussed
The complainants refused to do certain work involving the use of an anode furnace which they thought was unsafe. The employer investigated and concluded that the work was safe. They still refused to work and a safety inspector was called. The inspector admitted to the complainants that he had no personal experience in anode furnaces, which formed the subject of the dispute. He further admitted that he was relying on the expertise of the company officials to whom he had spoken. The inspector concluded that the work was safe and ordered as a precaution that two employees, rather than one, be present when the furnace was being used. The complainants continued to refuse to work and consequently the company sent them home without pay and placed disciplinary letters in their records. They complained to the Board that they were disciplined because they exercised the right to refuse unsafe work under The Employees Health and Safety Act, 1976 (since repealed and replaced by The Occupational Health and Safety Act, 1978). The Board had to decide whether there was a proper exercise of the right to refuse work by the employees in question. The employer argued that the complainants did not have "reasonable grounds to believe" that their workplace was unsafe; that they were not entitled to the protection of the Act since they acted as a group, and engaged in a form of an illegal strike; and that the complainants should have testified to establish that each of them believed that the work was unsafe. The Board held that the issue was not whether the work in fact was unsafe, but whether the complainants had reasonable cause to believe that it was unsafe. The Board held that "reasonable cause to believe" should be interpreted objective ly, so that the issue is not whether an employee in fact believed, but whether the circumstances were such as to cause a reasonable person with equal training and experience to believe that the work was unsafe. The Board held that even after the inspector's order that the work was safe, an employee may continue to have reasonable cause to believe otherwise and may continue to refuse to work. The Board cautioned though that at that stage there would have to be special circumstances which would create "reasonable cause" such as in this case where the inspector had admitted to the complainants that he was inexperienced and was relying on the expertise of company officials. The Board held that even though the complainants had acted as a group, each of them had reasonable cause to believe that the work was unsafe and were entitled to the protection of the Act. The Board concluded that the employer contravened the Act in imposing discipline on the employees. ( Inca Metals Co.  OLRB Rep. July 981).
Board Policy on Deferment to Arbitration and Unfair Labour Practice Postings
The trade union complained that the grievor, a union steward, had been dismissed by the · employer, because of her holding _ that union office. The employer argued that since the dismissal was grievable under the collective agreement the Board should defer to arbitration. The Board held that notwithstanding her probationary status, the grievor had statutory rights which had been contravened by the employer. Reviewing the Board policy as to deferment to arbitration, the Board stated that in view of the fact that there is some question about the grievor's right of access to the arbitration process because of her probationary status and in view of the different onus of proof and remedies available before arbitration boards and the Labour Relations Board, there should be no deferment to arbitration. The Board proceeded to find a violation of the Act by the employer and made remedial orders including reinstatement and compensation and the posting of a Board notice. The decision also reviewed the rationale for unfair labour practice postings, and indicated that they should usually form part of every Board remedial order ( Valdi Inc.,  OLRB Rep. Aug. 1254).
Board Has Jurisdiction Over Employees of "Non-Status" Indian Association
The union applied for certification with respect to employees of a "non-status" Indian Association, which was a private social service organization providing social and economic assistance to persons of native ancestry, who were not recognized as "Indians" under the Indian Act. The employer argued that the Board did not have the constitutional jurisdiction to entertain the application because many of the association's members, employees, and clientele were Indians. It was argued that as a result, the association's labour relations are within federal jurisdiction. The Board held that Metis people were not Indians under the Indian Act and that even if they were, provincial labour legislation of general application did not intrude on their Indian character, status and identity. Further, the Board held that constitutional jurisdiction over labour relations is determined not by the status of an employer's principals, employees or customers but by the character, operations or functions of the enterprise. The employer's operations were in no way connected with Indian reserves and lands or the exercise of rights or responsibilities under the Indian Act. The Board held that it had jurisdiction and proceeded to grant certification. (Ontario Metis and Non-Status Indian Association, [1980) OLRB Rep. Sept. 1304).
Individuals Cannot Apply for Determination of Employee Status
In this case, the Board held that section 95(2) of the Act was only intended to resolve issues between bargaining parties. Itwas not intended to provide a forum in which employees could question their status when that was not in issue between the employer and their trade union. The "question" referred to in section 95(2) must be one arising between bargaining parties during negotiations or during the term of a collective agreement. (Central Park Lodges of Canada, [1980) OLRB Rep. Oct. 1373).
Contracting Out Not Tainted by Anti-Union Motive
The trade union complained of unfair labour practices arising out of the employer's decision to contract out its janitorial work, which resulted in the lay-off of its employees. The Board found that there was no contravention of The Labour Relations Act since the decision to contract out was free of anti-union motive and was solely motivated by a desire to increase profitability. The Board further found that the employer had no obligation to disclose at the bargaining table, since at the time no concrete intention or plan to contract out existed. The complaint was dismissed. ( Kennedy Lodge Nursing Home, [1980) OLRB Rep. Oct. 1454).·
The Test of Who is "The Employer"
This case involved a determination by the Board as to which of three entities was the employer for the purposes of a certification application. The Sutton Place complex was ajoint venture of a partnership between two corporations. Sutton Place Hotel, Sutton Place, and Dennis Management Co. were all divisions of the partnership. No single corporate or business entity operated the complex, which included three distinct areas, i.e. hotel, apartment, and commercial. The work performed by the employees in question benefitted all three areas, since the mechanical systems they serviced were common to all three areas. The employees believed, on reasonable grounds, that their employer was Sutton Place Hotel. Dennis Management was responsible for their day to day supervision, hiring, firing and discipline and the determination and payment of wages, and benefits. There was a charge-back system whereby Dennis Management charged Sutton Place and Sutton Place Hotel for labour and management services. The Board. concluded that Dennis Management was the employer on the basis that it had "fundamental control" over the employees. The Board stated that where several entities share the responsibilities among them none of the criteria in the tests normally used by the Board to ascertain the employer are determinative. In such arrangements, the entity having "fundamental control" must be ascertained in the context of the situation as a whole. ( Sutton Place Hotel, [1980) OLRB Rep. Oct. 1538).
Union Acted Arbitrarily in Seeking Demotion of Grievor
The trade union forced the employer to demote the complainant by threatening to engage in unlawful strikes if the employer failed to do so. The demoted employee complained to the Board that the union contravened its duty to represent him fairly. The Board agreed with the complainant, holding that the trade union's treatment of the grievor was arbitrary. ( Toronto Hydro Electric System, [1980) OLRB Rep. Oct. 1561).
Union's Refusal to Sign Agreement After Last Offer Vote Accepting Employer's Offer -Bad Faith Bargaining
Recent amendments to The Labour Relations Act permit an employer to request the Minister of Labour to direct a vote among employees in a bargaining unit to accept or reject the employer's last offer on the matters remaining in dispute at negotiations. A vote under this provision was held, at which, by a narrow margin the employees voted to accept the employer's last offer. Nevertheless, the union refused to sign a collective agreement, claiming that the vote is a mere "opinion poll" and not of any legal effect and that in any event the vote was influenced by the employer's unlawful conduct. The Board held that prima facie the result of the vote obliges the trade union to sign a collective agreement. Refusal to do so was held to be a breach of the duty to bargain in good faith. On the facts the Board held that the employer's conduct did not affect the ability of the employees to express their true wishes at the vote. (Canada Cement Lafarge Limited, [1980) OLRB Rep. Nov. 1583).
Applications for Certification in the Industrial, Commercial and Institutional Sector of the Construction Industry
In an application for certification of a bargaining unit in the ICI sector, the Board held that for an application to "relate to" the ICI sector within the meaning of section 13la(l) of The Labour Relations Act, the application need only refer to a bargaining unit described so as to include that sector within its scope. It is not necessary that the employer actually have employees working in the ICI sector on the date of the application for certification. (Colonist Homes Ltd., [1980) OLRB Rep. Dec. 1792).
Termination Petition not Voluntary
During a lengthy strike, the union had been unable to obtain a collective agreement for the employees, two years having elapsed since certification. An application for termination of bargaining rights was filed, supported by a petition signed by a majority of employees. Although the Board found that the employer had not supported the petition, the evidence disclosed that the majority of signatures on the petition were obtained on the company premises, in the presence of management. The Board stated that, while there is no absolute rule against circulating a petition on company premises, since the signatures were obtained in the presence of management, the Board could not be satisfied that the petition was voluntarily signed by more than 45 per cent of the employees in the bargaining unit. Consequently, the application was dismissed. ( Ontario Hospital Association (Blue Cross), [1980) OLRB Rep. Dec. 1759).
Oral Evidence of Payment of Initiation Fee Not Admissible
Three of the membership cards filed by the union did not indicate the payment of an initiation fee of at least one dollar. The union sought to remedy this deficiency by leading oral evidence. The Board reiterated its rule that while oral evidence may be led to cure technical irregularities, it would not allow oral evidence to establish the two substantive conditions of membership specified in The Labour Relations Act, namely, the application for membership and the payment of one dollar. ( PRC Chemical Corporation of Canada Ltd.,  OLRB Rep. Dec. 1805).
Journalist Required to Reveal Source of Information
The union complained of unfair labour practices by the employer, alleging that the employer had caused an intimidatory news item to be published in the local newspaper. The news item was to the effect that the employer was not planning to renew its contract with the township. The editor of the newspaper was called as a witness under subpoena and on being questioned by the union counsel refused to disclose the source of the news item. He took the position that to reveal sources of information would betray the trust the community had placed on him. He took the position that such trust was very important to his job. The Board ruled that despite the witness's concerns, the evidence was relevant and admissable. The witness was compellable since there is no privilege under the law of Ontario permitting a journalist to refuse to reveal his sources where such information is relevant to the proceedings. The Board held that in refusing to answer the question, the witness was exposing himself to contempt proceedings. On the application of the complainant union, the Board consented to state a case to the courts under The Statutory Powers Procedure Act, 1971. ( Ontario Humane Society,  OLRB Rep. Dec. 1776).
Introduction of Security Measures - A Violation of the Act - Section 7a
In response to the union's organizing campaign, the employer, a hotel, instituted extensive security measures inside and outside its premises. These security measures included a new sign-in procedure for employees, security patrols inside the hotel and the use of the marked security patrol cruisers outside the hotel and in the parking area. In addition, several emptoyees who supported the union were dismissed. The Board found that the majority of the discharges complained of were motivated by anti-union sentiment and therefore were unlaw ful. As for the security measures, the employer admitted that they were introduced to restrict organizing activity on the employer's premises. The Board held that the right of an owner to take steps for the adequate security and control of his premises is a prima facie incident of ownership not to be lightly interfered with. Nevertheless, in view of the fact that the chilling effect of the employer conduct was so readily forseeable, the Board held that the employer must be taken to have been motivated by anti-union motive, especially in the light of the general anti-union behaviour of the employer already established. The Board reiterated its view that an employee's time outside of his working hours is for the employee to use as he wishes without unreasonable restraint by the employer, even though the employee may be on company property. In the circumstances the Board certified the applicant trade union without directing a representation vote. ( Skyline Hotels Limited,  OLRB Rep. Dec. 1811).
Ban on Overtime - A Lawful Exercise of the Right to Strike
The trade union, which was in a legal position to strike, voted to impose a ban on voluntary overtime. The employer sent disciplinary letters to employees who refused overtime in accordance with the collective decision. The union filed unfair labour practice complaints against the employer over the disciplinary letters. The Board held that the ban on overtime was aimed at putting pressure on the employer in the way it was conducting negotiations. It was a form of strike activity, which, being timely, was a lawful exercise of rights under the Act. The
Board also held that the employer engaged in an unfair labour practice in disciplining employees for exercising lawful rights. (Corporation of the City of Brampton (Brampton Transit),  OLRB Rep. Jan. I).
Foremen Entitled to Bargain Collectively
The Board received an application for certification with respect to a tag-end unit composed exclusively of foremen. The employer argued that the foremen were n ot "employees" within the meaning of the Act and were not entitled to bargain collectively. The Board, having reviewed the duties and responsibilities of the persons in question, held that they did not perform "managerial functions" since they did not exercise effective control and authority so as to materially affect the economic lives of the employees. (Hydro Electric Commission of the Borough of Etobicoke,  OLRB Rep. Jan. 38).
Intimidation and Surveillance Unfair Labour Practices - Section 7a
The applicant union was certified without a representation vote following a finding by the Board of several unfair labour practices. The employer had subjected two union supporters to constant surveillance and wrote intimidating letters to several employees who were to testify before the Board. In addition, the employer exercised undue influence at a series of employee meetings designed to discourage union support and to expose those supporting the union. A union supporter had also been discharged. The Board concluded that these violations called for a comprehensive remedial order, including the posting of a notice by the employer promising to refrain from future violations and the payment of damages to the two employees who were subjected to extraordinary harassment and indignity through constant surveillance because of their union activity. ( K-Mart Canada Ltd., [198 l]OLRB Rep. Jan. 60). The Board, in a subsequent decision, reconsidered and revoked that part of its order directing payment of damages for harassment and indignity ( K-Mart Canada Ltd.,  OLRB Rep. Feb. 120).
Bargaining Unit may not be Enlarged in Displacement Application
The applicant trade union applied for certification to displace the incumbent union which held bargaining rights with respect to "technical" employees of the hospital. In the process, the applicant sought the expansion of the bargaining unit to include the employer's professional employees who were unorganized at that time. The Board reiterated its general rule that in displacement applications the applicant must take the existing bargaining unit. The Board refused to sweep the professional employees into the unit, especially in view of the fact that the union failed to show any significant degree of support from employees within that group. ( Toronto East General and Orthopaedic Hospital, Inc.,  OLRB Rep. Feb. 225).
Temporary Replacement of Locked Out Employees Not Unlawful
The parties had made no real progress during bargaining. The employer concluded that . the union was deliberately delaying negotiations in order to co-ordinate bargaining with all of the company's plants across Canada. The employer commenced a legal lockout and hired temporary replacements for those employees locked out. As the Lock-out progressed, the employer tabled new demands seeking relief from restrictive clauses contained in the expired collective agreement. The Board concluded that the company's actions were taken in order to force the trade union to bargain and make an agreement and were not intended to avoid an agreement. A party may change its bargaining stance to suit the circumstances arising out of a strike or lock-out. Since there was no intention to avoid a collective agreement, that was not bad faith bargaining. The Board distinguished between permanent replacement and temporary replacement of locked out e11jployees. Permanent replacement would be illegal since that would be tantamount to discharging employees for engaging in collective bargaining. However, the temporary replacements could be removed when the union agreed to the terms and conditions demanded by the employer. The Board held that the use of temporary replacements during a lock-out, like the use of non-bargaining unit employees or sub contracting of work, in order to continue the employer's operations, was not contrary to the Act. ( Westroc Industries Limited,  OLRB Rep. Mar. 381).
VI COURT ACTIVITY
Valentine Enterprises Contracting
Ontario Divisional Court, Date of
Decision May 22, 1989; 80
The applicant sought judicial review of a Board decision accrediting the respondent employer association, in which the Board found that the applicant was an employer with whom the respondent Local 506 had bargaining rights. The applicant argued that it had received insufficient notice and that the Board's order conferred bargaining rights upon the union for the applicant's employees. The court, in dismissing the application, found that there had been sufficient notice and that the question of bargaining rights is a question of fact protected from review by section 97 of The Labour Relations Act.
P. J. Wallbank Manufacturing Co. Ltd. Ontario Divisional Court, Date of Decision August 20, 1980; unreported
This was an application for judicial review of a Board decision certifying the UAW with respect to a bargaining unit of employees of the employer. There were several grounds on which the application was based. The court held, on the first ground, that a finding that an employee did not exercise management functions was within the exclusive jurisdiction of the Board. The refusal of leave to the employer to re-open its case was held not to be a denial of natural justice in the circumstances. The court held that in any event, this was a matter of procedure and as such was exclusively within the jurisdiction of the Board. The Board's finding that the employer did not participate in or assist the union was held not to be so patently unreasonable in the light of the evidence as to warrant intervention by the court. The application was dismissed. In this matter the court had earlier dismissed an application for a stay of the Board order pending judicial review.
Windsor Airlines Limousine Services Limited
Ontario Divisional Court, Date of Decision
September 2, 1980; (1981), 30 O.R. (2d) 732; 117 D.L.R. (3d) 400
The applicant sought judicial review of a Board order certifying the respondent trade union with respect to its employees. Two grounds were forwarded in support of the application. First, that the Board was without constitutional jurisdiction since labour relations between the employer and the employees in question were within federal jurisdiction. Second, it was argued that the Board lost jurisdiction when it refused to adjourn proceedings at the request of the employer. The court held that the "ordinary business" of the employer was intra provincial. Extra-provincial activity was exceptional and minimal. Therefore, it was held that the Board was justified in concluding that the company was within provincial jurisdiction. On the second ground, the court noted that the Board's denial of an adjournment was subject to the condition that if the employer felt, as the hearing proceeded, that his case was in any way prejudiced by the late receipt of particulars, he could make a new application for adjournment at that time. The court held that when the employer walked out of the hearing in the face of such a ruling, there was no loss . of jurisdiction or denial of natural justice. The court commented that the Board's decision to press on with the hearing was not arbitrary since it was done for what appeared to the Board to be the necessity of the situation. The application failed on both grounds. The court had earlier refused to order a stay of the Board order pending judicial review. Leave to appeal the Divisional Court decision to the Court of Appeal was denied.
Westinghouse Canada Inc.
Ontario Divisional Court, Date of Decision September 19, 1980; 80 CLLC 1114,062
The employer sought to quash a decision of the Board where it had held that the company had committed an unfair labour practice by deciding to relocate the plant, in part as a result of anti-union motivations. The Board ordered the employer to offer the displaced employees the option of accepting employment at the relocated plant. In addition, the union was given access to employees at the new plant for purposes of organization, and the employer was ordered to reimburse the union for re-organization expenses. The employer argued that the Board's finding that the relocation was not for "cause" was patently unreasonable; that in allowing the union access, the Board interfered with the employees' right to select the union of their choice; and that the Board's decision was tantamount to directing the employer to assist a trade union, which was conduct prohibited by The Labour Relations Act. The court held that the Board's conclusion as to presence of anti-union motive was not patently unreasonable. The court stated that in making the remedial orders the Board was simply attempting to put the employees and the trade union as much as possible in the same position as if the relocation had never taken place. In the circumstances the remedial orders were held not to be outside the scope and intent of the Act.
Thames Steel Construction Ltd.
Ontario Divisional Court, Date of Decision October 21, 1980; unreported
The respondent union was certified by the Labour Relations Board over the opposition of the employer and some objecting employees. The applicant applied for judicial review and that hearing was pending. In the interim, the union proceeded with bargaining and was in a position to call a lawful strike. The employer applied for an interim order under section 4 of The Judicial Review Act to stay the Board order, which would make the anticipated strike unlawful.
The court stated that relief under section 4 is an extraordinary remedy which is subject to the discretion of the court. Therefore, in order to obtain the relief requested, the employer must show a prima facie case that the Board order may be reviewed on the ground of jurisdictional error as alleged. The court noted that the union had been certified by the Board and the employees were in a lawful position to strike. The court held that these rights of the union and the employees should not be interfered with unless it is established prima Jacie that the Board order is likely to be judicially reviewed. The court held that such a prima facie case was not established and accordingly the application was dismissed. The court also noted that the applicant could have applied for a speed hearing of its application forjudicial review under section 6(2) of the Act, but chose not to do so. Following the dismissal of the application for a stay, the matter did not proceed to a hearing but was settled.
The Ontario Metis and Non-Status Indian Association
Ontario Divisional Court, Date of Decision November 24, 1980; (1980), 6 A.C.W.S. (2d) 132
The applicant employer sought to have the Board order certifying the respondent union stayed under section 4 of The Judical Review Procedure Act pending the outcome of its application forjudicial review. It had applied forjudicial review on the ground that the matter was not within the constitutional jurisdiction of the Board.
The court stated that a stay is granted "to preserve the status quo in situations where to refuse it would have the result of a hollow victory" for the successful applicant. However, the applicant must establish a prima facie case that it will be successful. Also, it must establish that a refusal to stay would result in irreparable damage to the applicant and that the granting of a stay will not create a substantial injustice to the union. The court noted that the applicant had failed to apply under section 6(2) of The Judicial Review Procedure Act for a speedy hearing of its application for judicial review. Since the applicant did not, in the court's view, satisfy the above conditions, the application was dismissed. The applicant subsequently did not proceed with the application for judicial review.
Hugh Murray (1974) Limited and John Entwistle Limited
Ontario Divisional Court, Date of Decision December 17, 1980; 81 CLLC 14,091
The applicant trade unions sought judicial review of two decisions of the Board in which they were found to have abandoned their bargaining rights. The applicants argued that the only issue the Board should have considered was whether the union was once certified, and should not have considered questions as to how long ago certification occurred or what the applicants' conduct had been since. The applicants submitted that there is no express mention in the Act of abandonment of bargaining rights as a ground for declaring that a union no longer represents the employees in a bargaining unit.
The court dismissed the applications pointing out that the Act does not purport to list exhaustively all matters which the Board may consider in its various decisions. On the other hand the Board with its labour relations expertise, has a duty to take into account all matters it considers to be relevant. The court held that abandonment of bargaining rights once possessed, is a matter relevant to the question of whether at the relevant times the applicants held bargaining rights·. Leave to appeal the Divisional Court decision to the Court of Appeal was denied.
Ajax and Pickering General Hospital et al Ontario High Court of Justice, Date of Decision January 21, 1981; unreported
The applicant hospitals had applied for a cease and desist order from the Board against CUPE, which allegedly was threatening to call in an unlawful strike in contravention of The Hospital Labour Disputes Arbitration Act. While the Board hearing was pending, the union applied to the High Court for an order prohibiting the Board from proceeding with the hearing. The application was based on two grounds. Firstly that the Board was without constitutional jurisdiction to grant cease and desist relief to the hospitals and secondly that The Hospital Labour Disputes Arbitration Act was ultra vires the province because it conflicted with an international treaty entered into by Canada. The court held that the power vested in the Board to issue cease and desist relief does not offend section 96 of The British North America Act, because this power is purely incidental to the function of the Board of maintaining labour peace. It was held that these power do not usurp the powers of the Court and therefore are not ultra vires. The application for prohibition was dismissed.
The Municipality of Metropolitan Toronto Ontario Divisional Court, Date of Decision January 29, 1981; unreported
This was an application for judicial review of a decision of the Board wherein it held that the Municipality was an employer which operates a business in the construction industry within the meaning of the Act. The applicant contended that by giving the words "construction industry" a meaning they cannot reasonably bear, the Board had lost jurisdiction. In a brief decision, it was pointed out that the Divisional Court had considered and rejected the same argument in a previous case, which was not distinguishable from this one. The application was dismissed. Leave to appeal the decision of the Divisional Court to the Court of Appeal was denied.
Ontario Humane Society
Ontario Divisional Court, Date of Decision January 30, 1981; unreported
Note: Ernest J. Guiste completed part of his training as a lawyer with the Solicitor's Office of the Ontario Labour Relations Board.(Summer Student and Articles of Clerkship)