Charles Calligan

The applicant filed an application seeking a declaration that it is a 'non-construction employer' under the Labour Relations Act.

Before the hearing commenced, the statutory definition of 'non-construction employer' was amended.

The responding union brought a preliminary motion arguing the new definition should apply.

The Board dismissed the motion, holding that because the proceeding had been commenced prior to the amendment, the applicant had an accrued right to have the matter adjudicated under the law as it existed at the time the application was filed.

The applicant, a national clothing retailer, applied under section 127.2 of the Labour Relations Act, 1995 for a declaration that it is a 'non-construction employer'.

The applicant regularly engaged general contractors to renovate and build its retail stores but had not directly employed construction workers for nearly two decades.

The Board applied the two-part test for a non-construction employer, finding that the applicant employed no construction employees on the application date and that its engagement in the construction industry was merely incidental to its primary business of retail.

The Board concluded the applicant met the statutory pre-conditions for the declaration, but deferred the final order pending a hearing on the responding party's Charter challenge.