Amalgamated Transit Union Local 113 v. Ontario Labour Relations Board and Toronto Transit Commission

[Indexed as: Amalgamated Transit Union Local 113 v. Ontario Labour Relations Board]

88 O.R. (3d) 361

Ontario Superior Court of Justice, Divisional Court,

Ferrier, Whalen and Cumming JJ.

October 1, 2007

Employment -- Labour relations -- Labour Relations Board -- Procedural fairness -- Employer bringing application for cease and desist order in relation to alleged unlawful strike which resulted in public transportation shutdown -- Chair of Labour Relations Board attempting to reach Union executive and counsel, leaving messages and faxing notice to Union that application would be heard by teleconference at 5:30 a.m. -- Union not participating in hearing -- Vice-Chair reconsidering decision several hours later and also hearing Union's complaint of unlawful lock-out -- Vice-Chair imposing time limits on each side's presentation -- Board having broad discretion to abridge its usual procedures -- Board not denying Union natural justice.

Faced with a public transportation shutdown, the Employer brought an application for a cease and desist order in relation to an alleged unlawful strike by the Union. The hearing was held by telephone conference call at 5:30 a.m., without the Union's participation. In his decision granting the order, the Chair of the Ontario Labour Relations Board noted that he had attempted unsuccessfully to contact the president and vice- president of the Union and counsel who normally [page 362] acted for the Union, that he had left messages advising them that a hearing by teleconference was scheduled, and that a notice of the hearing was sent by facsimile to the Union. At a second hearing later that morning, the Vice-Chair reconsidered the original decision and the Union's complaint that what was taking place was an unlawful lock-out. He limited each side's presentation to 25 minutes, followed by 5 minutes each for reply. He dismissed the Union's unlawful lock-out complaint and found that the Union was engaging in an unlawful strike. The Union brought an application for judicial review of the two decisions, alleging that the Board had exceeded its jurisdiction by conducting the hearings as expedited hearings, the first on short notice and without the Union's participation, and the second with unfairly limited presentation time. The Union submitted that this amounted to a denial of procedural fairness and natural justice.

Held, the application should be dismissed.

The Board neither acted nor purported to act under the expedited proceedings provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, which do not apply to illegal strike or illegal lock-out applications. There is a fundamental difference between the "expedited proceedings" specifically contemplated by s. 110(18) of the Act and abridgment of otherwise normal procedures. The Board's Rules of Procedure give it broad authority to abridge otherwise usual time requirements, the way in which notification of hearing is given, service of documents, and the manner and form of hearing. These abridgment provisions apply generally to all of the Board's procedures, regardless of the nature of the application. The Board was within its authority in abridging normal procedures according to the Rules, provided that it afforded an appropriate level of procedural fairness. The situation in this case was urgent, and the Chair clearly thought it necessary to act quickly. The evidence supported a conclusion that the Union was aware of the pending application and was avoiding service. The Union failed to satisfy the onus on it to establish that there was improper or inadequate service. In failing to appear, the Union passed up its opportunity to address the claim that it was significantly prejudiced by the holding of an electronic hearing. There was no breach of the Act, the Rules or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and no breach of procedural fairness in respect of service, notification or the opportunity to address prejudice. The Union was not denied natural justice by the imposition of a time limit on oral presentations at the reconsideration hearing. The Board was within its statutory right to insist that evidence be submitted in writing. The Union was able to put its position and evidence before the Vice-Chair in a detailed and unrestricted manner in its written materials. The Board was required to afford the parties a high level of procedural fairness, and it met that standard in the unusual and exigent circumstances of the case before it.

APPLICATION for judicial review of two decisions of the Ontario Labour Relations Board.

Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22; Blasdell v. Ontario (Labour Relations Board), 2006 2777 (ON SCDC), [2006] O.J. No. 406, 207 O.A.C. 50 (Div. Ct.); Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, [1993] S.C.J. No. 35, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. Â14,022; Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227, [2006] S.C.J. No. 5; Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, 226 D.L.R. (4th) 193, 304 N.R. 76, 2003 SCC 29; Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (Re), 1971 341 (ON CA), [1971] 3 O.R. 832, [1971] O.J. No. 1719, 22 D.L.R. (3d) 40 (C.A.); Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, [2004] S.C.J. No. 45, 241 D.L.R. (4th) 83, 121 C.R.R. (2d) 261, 2004 SCC 48, 17 Admin. L.R. (4th) 165; [page 363] Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5, [1991] S.C.J. No. 42, 3 O.R. (3d) 128n, 47 O.A.C. 271, 81 D.L.R. (4th) 121, 122 N.R. 360, 4 C.R.R. (2d) 1, 91 C.L.L.C. Â14,024; Domtar Packaging Ltd. and United Paperworkers International Union (Re) (1973), 1973 627 (ON SCDC), 1 O.R. (2d) 45, [1973] O.J. No. 2128, 39 D.L.R. (3d) 212 (H.C.J.); Elementary Teachers' Federation of Ontario v. Toronto District School Board, 2005 36712 (ON CA), [2005] O.J. No. 4368, 203 O.A.C. 123, 2006 C.L.L.C. Â220-014, 34 Admin. L.R. (4th) 27 (C.A.), affg 2004 1652 (ON SCDC), [2004] O.J. No. 2886, 188 O.A.C. 302, 2004 C.L.L.C. Â220-064, 21 Admin. L.R. (4th) 1 (Div. Ct.); Fisher v. Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 (1980), 1980 1882 (ON SC), 28 O.R. (2d) 462, [1980] O.J. No. 3590, 110 D.L.R. (3d) 393 (Div. Ct.); Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 23 C.C.E.L. (3d) 84 (Div. Ct.); Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, 2001 SCC 47, [2001] 2 S.C.R. 565, [2001] S.C.J. No. 47, 201 D.L.R. (4th) 577; Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, 18 B.C.L.R. 124, 110 D.L.R. (3d) 311, 31 N.R. 214, [1980] 3 W.W.R. 125; Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26, 83 Sask. R. 81, 69 D.L.R. (4th) 489, 106 N.R. 17, [1990] 3 W.W.R. 289, 30 C.C.E.L. 237, 90 C.L.L.C. Â14,010 (sub nom. Indian Head School Div. v. Knight); Lakeport Beverages v. Teamsters Local Union 938 (2005), 2005 29339 (ON CA), 77 O.R. (3d) 543, [2005] O.J. No. 3488, 258 D.L.R. (4th) 10, 2005 C.L.L.C. Â220-057, 34 Admin. L.R. (4th) 60 (C.A.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1; London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.); McNaught v. Toronto Transit Commission (2005), 2005 1485 (ON CA), 74 O.R. (3d) 278, [2005] O.J. No. 224, 249 D.L.R. (4th) 334 (C.A.); Moreau- Bérubé v. New Brunswick (Judical Council), [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, 245 N.B.R. (2d) 201, 209 D.L.R. (4th) 1, 636 A.P.R. 201, 2002 SCC 11; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, 200 D.L.R. (4th) 193, 271 N.R. 104, 2001 SCC 41; Ontario (Ministry of Community, Family and Children's Services) v. Crown Employees Grievance Settlement Board (2006), 2006 21173 (ON CA), 81 O.R. (3d) 419, [2006] O.J. No. 2517, 213 O.A.C. 169, 2006 C.L.L.C. Â220-041, 51 Admin. L.R. (4th) 114 (C.A.); Ontario College of Teachers v. Power Workers' Union, [2000] O.J. No. 1334, 58 C.L.R.B.R. (2d) 299, [2000] O.L.R.B. Rep. 422 (Div. Ct.); Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756 (C.A.); Posluns v. Toronto Stock Exchange, 1968 6 (SCC), [1968] S.C.R. 330, [1968] S.C.J. No. 19, 67 D.L.R. (2d) 165; Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, 57 D.L.R. (4th) 663, 93 N.R. 81, [1989] 3 W.W.R. 289 (sub nom. Prassad v. Minister of Employment and Immigration); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] S.C.J. No. 77, [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201; Ridge v. Baldwin, [1964] A.C. 40, [1963] 2 W.L.R. 935 (H.L.); Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14, [1996] N.W.T.R. 1, 133 D.L.R. (4th) 129, 193 N.R. 81, 96 C.L.L.C. Â210-011; Tomko v. Nova Scotia (Labour Relations Board), 1975 183 (SCC), [1977] 1 S.C.R. 112, [1975] S.C.J. No. 111, 69 D.L.R. (3d) 250 Statutes referred to Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as am., ss. 94, 99, 100, 101, 110, (14), (16), (17), (18), (20), 111(1), (2), 114, 116 Labour Relations Act, R.S.O. 1960, c. 202 Labour Relations Act, R.S.O. 1990, c. L.2, s. 104(14) Labour Relations Amendment Act, 1961-62, S.O. 1961-62, c. 68, s. 10(3) Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1 [page 364] Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1), 6(1), (5) [as am.], 32 [as am.] Rules and regulations referred to Ontario Labour Relations Board, Rules of Procedure, rules 1, 1.5(f), (h), 3, 3.2, 6, 6.1, 6.4, 6.6, 7.3, 38, 38.1, 38.2, 38.4, 38.5, 39, 40, 40.7, 41 Authorities referred to Sack, Jeffrey, C. Michael Mitchell and Sandy Price, Ontario Labour Relations Board Law and Practice, 3rd ed., vol. 2,looseleaf (Markham, Ont.: Butterworths, 1997) Report of the Ontario Royal Commission on Labour-Management Relations in the Construction Industry (Toronto: Queen's Printer, 1962) (Chair: H. Carl Goldenberg)

J. Gregory Richards and Michael Statham, for applicant. Leonard Marvy, for OLRB. Christopher G. Riggs, Q.C., for TTC.

The judgment of the court was delivered by

WHALEN J.: --

I. General

[1] The applicant Amalgamated Transit Union, Local 113 (the "Union") sought judicial review of two decisions of the Ontario Labour Relations Board (the "Board") granted May 29, 2006. It asked that the orders arising from both decisions be quashed, with costs, if successful.

[2] For the reasons that follow, the application is dismissed.

II. Factual Background

[3] The Union holds bargaining rights for approximately 8,500 persons employed by the Toronto Transit Commission ("TTC"), including maintenance workers and cleaners. The TTC delivers public transportation to the several million people in the Greater Toronto Area through the operation of an extensive bus, electric streetcar and subway system.

[4] In September 2005, the TTC decided to re-orient subway station cleaning operations to night time, when user traffic would interfere less. In doing so, it was adopting a system already used on a part of the subway line. The modification necessitated re-assignment of shifts, locations, hours of work, and days off for a number of employees. Some positions would also be eliminated [page 365] through attrition. As a result, a number of maintenance staff would be assigned work at times and places personally less desirable than previously enjoyed. This was particularly so for workers who had improved their situations over time through seniority.

[5] The Union regarded the affected jobs as "Variable Positions", which had been the subject of considerable dispute before and during the 2005 collective agreement bargaining process. It claimed it had compromised its position by withdrawing a grievance, accepting a negotiating process and entering into the 2005 collective agreement on the understanding the TTC would not significantly alter the number of Variable Positions during the term of the new agreement. To the Union, the proposed changes amounted to bargaining in bad faith.

[6] The new assignments were to be implemented through a sign-up process. The collective agreement required the TTC to notify the Union of the "Master Sign-Up", and the two parties were then to jointly implement it with employee input according to seniority. The TTC notified the Union on September 19, 2005, and the Union responded on March 17, 2006 that it did not agree and would not participate. The Union then informed its members of its position, and advised them not to participate either.

[7] On May 3, 2006, the TTC notified the employees that the "Master Sign-Up" was to start on May 8, 2006, and on May 5, 2006, warned them of the potential consequences of taking part in work stoppages.

[8] On the appointed date, and without Union involvement, the TTC assigned over 700 maintenance department employees to new positions. The large majority of affected employees did not participate in the process, so the TTC assigned them as best it could and designated Sunday, May 28, 2006 as the start-up date.

[9] When the day arrived, however, maintenance staff started calling in sick or otherwise failing to report for work. By midnight, picket lines had been established and other employees were refusing to cross the lines. TTC bus, streetcar and subway operations therefore came to a halt.

[10] Around 11:45 p.m., the TTC's Executive Director of Human Relations tried telephoning the Union's President both at home and on his cell phone, but there was no answer and his voice mail would not accept messages. Just before midnight, he reached the Vice-President, advised him that maintenance staff were not reporting for work, and asked if the Union was engaged in a concerted job action. The Vice-President answered that he would look into it and get back.

[11] The TTC concluded that an unlawful strike was under way. Its counsel then began preparing an application for an order [page 366] that the Union, its members and its leadership "cease and desist" from engaging in, encouraging, supporting, procuring or threatening an unlawful strike; and that the TTC be compensated for its losses, damages and expenses arising from the unlawful strike. At 12:30 a.m., the TTC's counsel telephoned the Chair of the Board to advise him of the pending application.

[12] At 1:21 a.m., on May 29, 2006, the TTC's Executive Director of Human Relations called the Union Vice-President again, but when there was no answer, he left a voice message that the TTC was bringing a "cease and desist" application before the Board. He telephoned the Vice-President again at 1:45 a.m., and this time got through. The Vice-President told him he had informed picketers at one location to return to work, and that he was going to do the same at another location. He said he would call back.

[13] No call having been received, the Human Resources Director phoned the Vice-President again at 2:20 a.m. He asked the Vice-President where he was, so that he could be served with the application documents. The Vice-President responded that he would not willingly be served and added: "Good luck trying to find me."

[14] The documents were completed around 3:00 a.m. and faxed shortly after to the Union's office. A driver was also dispatched to wait outside the office and serve them on the first Union official to appear. The driver served a copy on the President as he arrived at about 5:50 a.m.

[15] Around 4:00 a.m., TTC's counsel arrived at the home of Mr. Ian Fellows, a lawyer who had acted for the Union on two previous applications. Mr. Fellows agreed that the application documents could be left on his doorstep, but indicated he had not been retained and that he was committed to appear in court in Oshawa at 10:00 a.m.

[16] TTC's counsel then set off to deliver the application materials to the Board Chair at his home. En route, Mr. Fellows called to say that he had read the application documents, to repeat that he was not retained and to ask for the Board Chair's telephone numbers (which were given).

[17] TTC's counsel delivered the documents to the Chair at his home around 4:30 a.m. In a covering letter, he also asked for abridgment of time for reply, the scheduling of an immediate hearing and an order for substituted service of the application on the Union members named in it. The Certificate of Delivery attached to the application indicated delivery to the Union's Vice-President by facsimile at the Union's office and by hand to Mr. Fellows at 3:15 a.m. as the Union's counsel. TTC's counsel advised the Chair verbally of the various conversations summarized here and of efforts to serve the application documents. He [page 367] indicated that he had left a copy with Mr. Fellows, who although not retained by the Union was in possession of the Chair's telephone numbers. Upon request, he also provided the Chair with the President's, Vice- President's and Mr. Fellows' telephone numbers.

[18] Mr. Fellows later deposed that he had advised TTC counsel that the Union's in-house counsel, Ms. Heather Alden, would be handling the matter, and that the application should be served on her. He did not provide TTC counsel with her address or telephone number, but deposed that counsel already knew her from numerous previous dealings. He agreed he had asked for the Chair's telephone number, but denied expressing any intention to call the Chair himself. Rather, he said he intended to give it to Ms. Alden, if and when he could reach her. TTC's counsel denied there was any conversation at all about Ms. Alden or her status in the matter. He maintained that Mr. Fellows had requested the Chair's number with the expressed intent of calling him.

[19] Ms. Alden deposed that Mr. Fellows alerted her to the application and its delivery to his home, but that he had advised the TTC to serve it on her. So it was her position that she did not know when the matter was to be heard, and that she was waiting to be served. When she had heard nothing by 7:00 a.m., she telephoned TTC's counsel, who even then did not advise her that an order had been granted the hour before. She further deposed that she ultimately learned of the order from Mr. Fellow's firm, which had received a faxed copy.

[20] At 5:00 a.m., the Board Chair informed TTC's counsel that the application would be heard that morning at 5:30 a.m. by telephone conference call. In para. 3 of his decision, the Board Chair noted his attempts to contact the Union through executive members and Mr. Fellows:

3. Immediately upon receipt of the application, I attempted to contact the President of the ATU, the Vice-President of the ATU and counsel who normally act for the ATU in matters before the Board. Being unsuccessful in speaking to these officers or counsel over the telephone, I left telephone messages advising them that a hearing by conference call was scheduled for 5:30 A.M. today May 29, 2006, providing them with a call in number, to deal with the application. Further, I sent a notice of such hearing by conference call to the ATU by facsimile.

[21] The hearing proceeded as scheduled by telephone before the Board Chair, with only the TTC participating. The Chair found that there was a subsisting collective agreement in place and granted a "cease and desist" order after stating the following conclusions: [page 368]

4. I find on the material filed that the ATU has been served with both the application and has notice of the hearing by conference call scheduled to deal with this application.

5. The TTC participated in the hearing by conference call. No one participated on behalf of the ATU.

6. In addition to the material filed, the TTC confirmed in the hearing that picket lines consisting of ATU members were operating at all nine TTC Divisions and that employees were either being prevented from reporting to work or were choosing not to cross picket lines. The consequence is that public transit is not operating in the City of Toronto -- for example, only seven buses are on the road where normally there would be 1300 buses providing transit service. There are similar consequences for the subway and street car operations.

[22] The Union disagreed that there was an unlawful strike and took the position that the new scheduling policy and "Master Sign-Up" procedure had resulted in an unlawful lock- out. It alleged that senior workers had shown up at their previous, usually assigned shifts and locations, but the TTC had refused them.

[23] The Chair faxed a copy of his decision to the Union's office around 6:12 a.m. (approximately 40 minutes after making it) and left a telephone voice message of it on Mr. Fellows' cell phone. Shortly after 7:00 a.m., Mr. Fellows telephoned the Chair to confirm that the application had been heard without the Union's participation. In the same conversation, he advised the Chair that he had told TTC's counsel to serve Ms. Alden, and expressed the Union's wish to be heard on an application for unlawful lock-out. The Chair scheduled a hearing to reconsider the decision, as permitted under s. 114 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended (the "Act"), at noon the same day before a Vice-Chair.

[24] Both the Union and TTC were represented at the second hearing. It appears that the Vice-Chair reconsidered the original application, as well as the Union's unlawful lock-out complaint. He limited each side's presentation to 25 minutes, followed by five minutes each for reply.

[25] The Union complained that the time limit had been unilaterally imposed without inviting submissions from the parties, and that it had denied the Union full opportunity to adduce evidence -- in particular the oral evidence of Mr. Fellows, who was standing by to testify about his contact with TTC counsel earlier that morning. The Union also complained that the time limit had denied it full opportunity to make submissions. TTC representatives deposed that Ms. Alden had not made any complaint or submission at all about the time limits at the second hearing. [page 369]

[26] The Vice-Chair dismissed the Union's unlawful lock-out application and reconfirmed the earlier order. He found that the Union had responded to management action by engaging in an "untimely and unlawful" strike, whereas it should have pursued a grievance procedure if it had a complaint. He also concluded that there was nothing before him to suggest any counsel had acted inappropriately in the matter. He upheld the Chairman's decision with the following observation:

10. I do not disagree with the conclusion reached in paragraphs 3 and 4 of the return to work order. However, even if I were to find that the union had not received notice of the hearing which led to the order, this would not be an appropriate case to vary the Board's order. I am satisfied that the union and its members are engaging in an illegal strike and that the Board would have come to the same decision had the union been present and had the opportunity to make argument -- as it was before me -- this morning.

[27] Based on the two decisions, the TTC filed a claim four days later for damages of $3,000,000 against the Union and its executive board members personally.

III. The Union's Position

[28] The Union took the position that the Board had exceeded its jurisdiction by conducting the hearings as "expedited hearings"; the first, on short notice and without the Union's participation; and the second, with unfairly limited presentation time. As a result, it complained it had not been afforded full opportunity to present evidence and make submissions. This was alleged to be a natural justice denial of procedural fairness and required the setting aside of both orders. Because it involved a denial of natural justice, the usual "pragmatic and functional" standard of judicial review analysis did not come into play. Rather, it was ab initio a proper question for the court to decide.

[29] The Act gives the Board authority to declare that an unlawful strike (s. 100) or an unlawful lock-out (s. 101) has been threatened or occurred, and to make such direction as will remedy the situation. Section 110(18) of the Act permits the Chair to make rules "to expedite" proceedings in specific situations:

110(18) The chair may make rules to expedite proceedings to which the following provisions apply:

0.1 Section 8.1 (Disagreement by employer with union's estimate).

1. Section 13 (right of access) or 98 (interim orders).

2. Section 99 (jurisdictional, etc., disputes).

3. Subsection 114(2) (status as employee or guard). [page 370]

4. Sections 126 to 168 (construction industry).

5. Such other provisions as the Lieutenant Governor in Council may be regulation designate.

[30] Section 110(20) of the Act permits the Board to make rules eliminating the need for a hearing, and limiting the right to present evidence and make submissions in expedited proceedings:

110(20) Rules made under subsection (18),

(a) may provide that the Board is not required to hold a hearing;

(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and

(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

[31] However, because the expedited hearing was limited only to those situations specified in s. 110(18), which did not include unlawful strikes within the meaning of s. 100 or unlawful lock-outs within the meaning of s. 101, the Board did not have jurisdiction to follow expedited hearing procedures where unlawful strike or an unlawful lock-out was in issue. The Union submitted that the Board was therefore without jurisdiction to conduct the hearings on an expedited basis, as allegedly done in this case. That being so, it could not deny a right of hearing or limit the Union's full opportunity to present evidence or make submissions in either hearing.

[32] The Union also relied on s. 110(16), which provides:

110(16) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and make their submissions.

(Emphasis added)

[33] The Union's submissions therefore continued that subject to the exceptions contained in s. 110(18) and (20), the Board's right to fashion its own procedures was limited by the mandatory requirement of giving "full opportunity to the parties . . . to present their evidence and make their submissions". The Board was bound by this clear expression of legislative intent.

[34] As further authority for this proposition, the Union relied on Reid J.'s conclusion in Fisher v. Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 (1980), 1980 1882 (ON SC), 28 O.R. (2d) 462, [1980] O.J. No. 3590 (Div. Ct.), at p. 468 O.R.:

The Board is governed by the Labour Relations Act. It has wide powers and heavy responsibilities. That has been remarked upon time and again in the decisions of this Court. We are conscious of the need for expedition in its [page 371] proceedings. That is a familiar theme in the Board's decisions and the submissions of counsel before us.

There are, however, limits beyond which the pressure of expedition must not be permitted to drive the Board. One such limit, and a fundamental one at that, is expressed in s. 91(12) of the Act . . . [now s. 110(16)]

The requirement that a "full opportunity [be given] to the parties to any proceedings to present their evidence and make their submissions" is absolute. It overrides the Board's power to determine its own practice.

[35] The Union submitted that presenting evidence and making submissions were separate and distinct components in a hearing before the Board. Otherwise s. 110(16) (infra, at para. 31) would not have stated them separately, thereby mandating a right to each. The written materials accompanying the applications were "submissions", while "evidence" included the right to call witnesses to testify viva voce. Fisher (supra) and Re Domtar Packaging Ltd. and United Paperworkers International Union (1973), 1973 627 (ON SCDC), 1 O.R. (2d) 45, [1973] O.J. No. 2128 (H.C.J.), at pp. 52 and 53 O.R. recognized the distinction.

[36] The Union also complained that the Board had breached its own Rules of Procedure, in particular rule 7.3(b) providing that the respondent to a notice of application ". . . must file a response with the Board not later than . . . one (1) day after the application...[has been] delivered". The same wording had appeared on the notice of application itself. The Union argued this meant it had at least a day to prepare its response, evidence and submissions before the application could be heard. Failing to afford it the prescribed time was a further breach of procedural fairness.

[37] As a further submission, the Union also pointed out that while rule 38.5 provides that the Board may conduct an electronic hearing in any case before it, it will not do so ". . . if a party satisfies it that holding an electronic hearing is likely to cause the party significant prejudice". In this case, the Chairman had decided to hold the hearing by telephone conference less than an hour after he had received the application. The Union had no opportunity to address the significant prejudice to it of a telephone conference hearing, which would not permit the presentation of viva voce testimony.

[38] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("S.P.P.A.") also requires a notice of hearing, sets out the content of the notice and gives the parties a similar right to demonstrate that significant prejudice will likely be caused by an electronic hearing:

6(1) The parties to a hearing shall be given reasonable notice of the hearing by the tribunal. [page 372]

(5) A notice of electronic hearing shall include:

(a) a statement of the time and purpose of the hearing, and details about the manner in which the hearing will be held;

(b) A statement that the only purpose of the hearing is to deal with procedural matters, if that is the case;

(c) If clause (b) does not apply, a statement that the party notified may, by satisfying the tribunal that holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the tribunal to hold the hearing as an oral hearing, and an indication of the procedure to be followed for that purpose; and

(d) a statement that if the party notified neither acts under clause (c), if applicable, nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding.

[39] The Union complained that service both of the application and notice of hearing was faulty and inadequate. With respect to the application, TTC counsel's covering letter to the Chair and the formal Certificate of Delivery filed with the application misrepresented that: (a) Mr. Fellows had been served as the Union`s counsel, whereas he was not retained to act, and; (b) that the Union Vice-President had been served, which the Union denied. The Union alleged that the Certificate of Delivery misrepresented delivery of the documents on Mr. Fellows at 3:15 a.m. whereas they had actually been delivered around 4:00 a.m. The Union also submitted that the Chairman's notice of the electronic hearing did not meet the requirements of rule 38.5 or s. 6(5) of the S.P.P.A.

[40] If the Act or its rules somehow permitted the Board to override the requirement of giving notice of an electronic hearing, or of opportunity to demonstrate prejudice under rule 38.5, the Union urged that it could not overcome the right to proper notice and opportunity to address prejudice under ss. 6(1) and (5) of the S.P.P.A. That could only happen if the Act did so explicitly, as provided in s. 32 of the S.P.P.A.:

32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

[41] Section 1(1) of the S.P.P.A. and rule 1.5(f) of the Act defined "electronic hearing" identically as: ". . . a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another." [page 373]

[42] In summary, the Union objected that there had been an impossibly short time to prepare a written response, evidence and submissions for the first hearing -- even if there had been proper service of the application and notice of hearing. The fact that the hearing was by telephone also made it impossible to call intended viva voce evidence (in particular, Mr. Fellows' communications with TTC's counsel). All of this was asserted to be a further denial of procedural fairness.

[43] The Union submitted that the second hearing had been similarly flawed when the Vice-Chair unilaterally limited each side's presentation time. As a result, the Union was again denied full opportunity to present evidence and make submissions. It stated that it had intended to call Mr. Fellows to testify orally about advising TTC's counsel to serve Ms. Alden and that she would be acting for the Union. Without this evidence and the accompanying submissions, the Union argued that neither the Chair nor the Vice-Chair could reach just conclusions.

[44] The Union further argued that as a general common law principle, a duty of procedural fairness lies on every public authority making an administrative decision that is not of a legislative nature and that affects the rights, privileges or interests of a party. Where the administrative decision reflects a process, tribunal or determinations to be made resembling judicial decision-making, the common law duty of fairness requires that the affected parties be given an opportunity "to put forward their views and evidence fully and have them considered by the decision-maker": Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 22. See also: Baker v. Canada (supra), at paras. 20 and 23 to 28; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, at paras. 18 to 21; Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227, [2006] S.C.J. No. 5, at paras. 38 and 39.

[45] This being so, it was up to the courts to assess procedural fairness without the necessity of standard of review analysis: Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, at paras. 100 to 103; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, at paras. 74 and 75; Ontario (Ministry of Community, Family and Children's Services) v. Crown Employees Grievance Settlement Board (2006), 2006 21173 (ON CA), 81 O.R. (3d) 419, [2006] O.J. No. 2517, 213 O.A.C. 169 (C.A.), at paras. 17 to 23.

[46] The Union argued strenuously that its right to fully present evidence and make submissions had been seriously compromised at both hearings. Thus, the Union submits its common law rights [page 374] of procedural fairness had been denied, which required that the Board's original decision as confirmed in the second hearing be quashed without regard to or necessity for standard of review or the usual deference given the Board in the judicial review process.

IV. Analysis and Discussion

A. The need for standard of review analysis

[47] There is no question but that procedural fairness (in the context of natural justice) trumps considerations of standard of review, or that procedural fairness is a matter for courts to decide: Canadian Union of Public Employees v. Ontario (Minister of Labour), supra, at paras. 100 to 103; Moreau- Bérubé v. New Brunswick (Judicial Council), supra, at paras. 74-75. As Binnie J. observed in Canadian Union of Public Employees (supra, at para. 102), procedural fairness goes to the manner in which the administrative authority went about making its decision, whereas standard of review relates to the end product of the deliberations that produced the decision. The Union framed its appeal largely in terms of how the Board went about making its decision.

[48] Procedural fairness is a precondition to the administrative authority's decision-making, and where that is the issue of appeal it becomes a separate matter for judicial consideration. Where a tribunal's decision is attacked on the basis of a denial of procedural fairness or some other natural justice question, it is not necessary for the court to first engage in an assessment of the standard of review: London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.), at para. 10; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 419 C.C.E.L. (3d) 84 (Div. Ct), at para. 16. If the court finds the tribunal fell short on procedural fairness, the tribunal's decision will fail and there will be no need for standard of review analysis.

[49] The respondents did not question these principles. That being said, as Binnie J. also pointed out in Canadian Union of Public Employees (supra, at para. 103), there can be confusion between the two lines of enquiry because many of the "factors" considered in determining the requirements of procedural fairness are also involved in standard of review analysis.

B. Assessing the content of procedural fairness

[50] The courts have also recognized procedural fairness as a flexible duty that may vary based on the circumstances of the particular case. L'Heureux-Dubé J. put it this way in Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26, at p. 682 S.C.R.: [page 375]

Like the principles of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. In Nicholson, supra, at pp. 326-27, Laskin C.J. adopts the following passage from the decision of the Privy Council in Furnell v. Whangarei High Schools Board, [1973] A.C. 660, a New Zealand appeal where Lord Morris of Borth-y-Gest, writing for the majority, held at p. 679:

Natural justice is but fairness writ large and juridically. It has been described as "fair play in action". Nor is it a leaven to be associated only with judicial or quasi- judicial occasions. But as was pointed out by Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.

This was underlined again very recently by this court in Syndicat des employés de production de Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, where Sopinka J. wrote for the majority at pp. 895-896:

Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provision and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial or executive tribunals. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates.

(Emphasis added)

[51] In Ontario College of Teachers v. Power Workers' Union, [2000] O.J. No. 1334, [2000] O.L.R.B. Rep. 422 (Div. Ct.) (at para. 3), O'Leary J. of this court put it very simply: "What amounts to a denial of natural justice depends on the circumstances."

[52] In Baker v. Canada (Minister of Citizenship and Immigration), supra, at p. 837 S.C.R., L'Heureux-Dubé J. expanded on her observations in Knight (supra):

The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653, at p. 682, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170, per Sopinka J.

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the [page 376] purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[53] Madame Justice L'Heureux-Dubé then identified five non- exhaustive factors that should be considered in determining the content of the duty of fairness in a particular case. These were summarized succinctly in the head-note:

The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statue and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision- maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it: (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates: (3) the importance of the decision to the individual or individuals affected: (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.

[54] The Supreme Court of Canada re-affirmed the factors and applied them in Congrégation des témoins de Jéhovah de St- Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, [2004] S.C.J. No. 45, at para. 5, although, McLachlin C.J. restated the fifth factor in slightly different words: ". . .(5) the nature of the deference accorded to the body". I conclude this was not a substantive change, but only a difference of expression.

[55] L'Heureux-Dubé J. offered a brief explanation of the fifth factor at para. 27 of Baker (supra):

Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-60 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J.

[56] If it is determined that there was no breach of procedural fairness or other aspect of natural justice, the court must then embark upon a standard of review analysis -- i.e., the degree of deference to be accorded the tribunal's decision. [page 377]

C. Standard of judicial review

[57] As now well-recognized, one of three levels of standard of review is generally applied, namely: "correctness"; "unreasonableness"; or "patent unreasonableness". To assist in determining the degree of deference intended by a legislature, the court uses a "pragmatic and functional" approach that weighs four basic factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the purpose of the subject legislation as a whole and the particular provisions in question; (3) the nature of the problem or issue decided by the tribunal; and (4) the expertise of the particular tribunal compared to the reviewing court on the question in issue: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 223 D.L.R. (4th) 577; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 787 (SCC), [1998] 1 S.C.R. 1222, [1998] S.C.J. No. 77, 160 D.L.R. (4th) 193; Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756 (C.A.). These are the factors that Binnie J. observed can be confused with the factors applied in procedural fairness analysis (infra, at para. 49).

[58] It was not disputed that the Board should be accorded the highest degree of deference, given its broad jurisdiction to regulate labour relations issues, its exclusive jurisdiction on questions of fact or law in the area, its high degree of expertise and the presence of two privative clauses in the Act. Therefore, a court should not generally interfere with the substantive or procedural decisions of the Board, unless they are "patently unreasonable": McNaught v. Toronto Transit Commission (supra); Lakeport Beverages v. Teamsters Local Union 958 (2005), 2005 29339 (ON CA), 77 O.R. (3d) 543, [2005] O.J. No. 3488 (C.A.); Toronto District School Board v. Elementary Teachers' Federation of Ontario, 2004 1652 (ON SCDC), [2004] O.J. No. 2886, 21 Admin. L.R. (4th) 1 (Div. Ct.); Blasdell v. Ontario (Labour Relations Board), 2006 2777 (ON SCDC), [2006] O.J. No. 406, 207 O.A.C. 50 (Div. Ct.).

[59] The contest in the present case did not centre on the applicable standard of review. The standard of "patent unreasonableness" seemed conceded. I agree that is the standard here.

[60] A decision is "patently unreasonable" if it is "clearly irrational" or "evidently not in accordance with reason", and the test is a very strict one: Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, [1993] S.C.J. No. 35, at para. 44. This was not in issue either. [page 378]

D. The Board's special expertise

[61] Because labour relations boards work with and make determinations under the legislation on a regular basis, and have generally done so for a long time, they are well- recognized as having developed special expertise in that context. Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, 2001 SCC 47, [2001] 2 S.C.R. 565, [2001] S.C.J. No. 47, 201 D.L.R. (4th) 577; Canada (Attorney General) v. Public Service Alliance of Canada (supra); Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14, 133 D.L.R. (4th) 129; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5, [1991] S.C.J. No. 42, 81 D.L.R. (4th) 121.

[62] In Canada (Attorney General) v. Public Service Alliance of Canada (supra), a case involving review of a decision of the federal Public Service Staff Relations Board, Justice Cory explained the rationale for high judicial deference toward the decisions of labour tribunals (and similar administrative tribunals) while, at the same time, delineating the respective preserves of courts and tribunals [at paras. 42-43]:

There are a number of reasons why the decisions of the Board made within its jurisdiction should be treated with deference by the court. First, Parliament in the Act creating the Board has by privative clause indicated that the decision of the Board is to be final. Secondly, recognition must be given to the fact that the Board is composed of experts who are representative of both labour and management. They are aware of the intricacy of labour relations and the delicate balance that must be preserved between the parties for the benefit of society. These experts will often have earned by their merit the confidence of the parties. Each time the court interferes with a decision of such a tribunal confidence is lost not only by the parties which must appear before the Board but by the community at large. Further, one of the greatest advantages of the Board is the speed in which it can hold a hearing and render a decision. If courts were to interfere with decisions of the Board on a routine basis, victory would always go to the party better able to afford the delay and to fund the endless litigation. The court system itself would suffer unacceptable delays resulting from the increased case load if it were to attempt to undertake a routine review.

None of this is to say that some form of review is not salutary and necessary. Certainly, the courts are eminently well suited for determining whether the Board has exceeded the jurisdiction which is granted to it by its enabling statute. Further, the courts are in the best position to determine whether there has been a denial of natural justice which would result in a loss of jurisdiction by the tribunal. As well, all parties have the right to be protected from a decision that is patently unreasonable. Beyond that the courts need not and should not go. A board which is created and protected by a privative clause is the manifestation of the will of Parliament to create a mechanism that provides a speedy and final means of achieving the goal of fair resolution of labour-management disputes. To save its purpose these decisions [page 379] must as often as possible be final. If the courts were to refuse to defer to the decisions of the Board, they would negate the very purpose of the Act and its express provisions.

[63] Justice Cory's observations aptly reflect aspects of the dispute in this case. As he emphasized, labour relations boards are especially able to hear and decide matters with speed. That may be particularly important where there is urgency.

[64] The TTC (and the Board itself) urged that the Board be accorded a high degree of deference based on expertise and broad jurisdiction accompanied by authority over process. While not really disputing that high deference should be accorded, the Union complained that the Board had exceeded the jurisdiction and authority given it.

[65] The Union argued that the Board could not exceed the underlying purpose and authority fashioned by the Legislature. It must also afford fairness and natural justice in its decisions, including in respect of the application of its own rules and practices. The Union submitted that the Board had acted in a patently unreasonable way in the conduct of the hearings. The tribunal's expertise and the deference accorded it are also germane to assessing the content of procedural fairness appropriate to the circumstances of the case.

[66] These are, in large, the questions and principles of law in play in the present appeal. Before addressing them more closely, it is appropriate to consider relevant aspects of the legislation itself.

E. The Board's purpose, function and authority

[67] The Board is, of course, a creature of the Act, which has the following stated purposes:

2. The following are the purposes of the Act:

3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

4. To recognize the importance of workplace parties adapting to change.

5. To promote flexibility, productivity and employee involvement in the workplace.

6. To encourage communication between employers and employees in the workplace.

7. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions. [page 380]

8. To encourage co-operative participation of employers and trade unions in resolving workplace issues.

9. To promote the expeditious resolution of workplace disputes.

(Emphasis added)

[68] This statement of purpose is indicative of the breadth of function and jurisdiction intended by the Legislature for the Board. It is obvious that the mechanisms, procedures and remedies contained in the Act were meant to foster comprehensive resolution of disputes in the workplace.

[69] It is unquestionable that by late evening of May 28 and early morning of May 29, 2006, the situation between the TTC and Union constituted a "workplace dispute". There can also be little question that it required "expeditious resolution", if only because it threatened (whether by strike or lock-out) to paralyze public transportation in Canada's largest metropolitan centre. The situation underlying the orders in question fitted the intended purpose of the Act.

[70] Section 110 of the Act establishes the Board and outlines its composition, administration and operation. Section 111(1) provides that the Board "shall exercise the powers and perform the duties that are conferred or imposed upon it by or under the Act".

[71] Although the Board usually sits in divisions composed of more than one member, s. 110(14) authorizes the Chair to sit alone or authorize a Vice-Chair "to sit alone to hear and determine a matter and to exercise all the powers of the Board when doing so, . . . if the Chair considers it advisable to do so".

[72] It is clear in the case at hand that the Chair decided to sit alone on the first hearing, and that he authorized the Vice-Chair to sit alone on the reconsideration hearing. In my view, the provisions authorizing this exceptional procedure are compatible with and indicative of the Act's purpose of achieving expeditious resolution of workplace disputes in urgent or other appropriate circumstances. It is a form of abridgement of the tribunal's normal composition and a device of speedy resolution. The Legislature clearly contemplated the potential need. Otherwise it would not have made such specific provision.

[73] Section 100 gives the Board authority to receive a complaint of an unlawful strike from an employer, to declare that an unlawful strike is threatened or has taken place, and to direct appropriate refraining action. The section is very broad in its language:

100. Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or [page 381] authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counseled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do an act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, the Board may so declare and it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

[74] Section 101 gives the Board equally broad authority to hear complaints and declare and direct a remedy in respect of unlawful lock-outs.

[75] Section 114 provides that the Board has exclusive jurisdiction over these matters:

114(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[76] The strength of the Legislature's intent in this regard is underlined in a second privative clause prohibiting review by the courts of the Board's decisions, orders, directions, declarations and rulings:

[116.] No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction,. . .or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

[77] It is therefore clear that the Board has exclusive jurisdiction to deal with complaints of unlawful strike and unlawful lock-out, to make findings of fact and law on these issues, and to give ultimate remedy or direction. When the TTC perceived it was facing an unlawful strike, it had to bring its complaint to the Board. There was no other legal forum. It could not go to a court. The Union's options were similarly limited when it sought remedy for unlawful lock-out.

F. Control over procedure and accepting evidence

[78] Although s. 110(16) has already been referred to in the context of the Union's argument for procedural fairness (infra, at para. 32), the section also provides that: "The Board shall determine its own practice and procedure. . ." [page 382]

[79] Section 111(2)(e) specifically gives the Board the power "to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not". Therefore, the usual rules of evidence prevailing in courts, do not necessarily apply in Board proceedings. This is an important distinction between the operation of courts and the Board. The manner in which evidence is received by the tribunal is also within its discretion -- i.e., oral or written. There is no requirement that evidence be received in the form of oral testimony.

G. Practice and procedure

[80] Section 110(17) of the Act gives the Chair authority to make rules governing the Board's practice and procedure:

110(17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.

[81] The Rules of Procedure, in force December 1, 2005, give the Board broad authority to abridge otherwise usual time requirements, the way in which notification of hearing is given, service of documents, and the manner and form of hearing. It may also generally relieve against the strict application of the Rules when considered advisable to do so:

RULE 3 TIME

3.2 The Board or the Registrar may shorten or lengthen any time period set out in or under these Rules, as either considers advisable.

RULE 6 COMMENCEMENT -- DELIVERY AND FILING

Commencement

6.1 Every case must be started by completing, delivering and filing the proper application form and filing and delivering any other documents required by these Rules.

Manner of Delivery

6.4 Applications, responses, and requests covered by Rule . . . 7.3(b) (strikes and lock-outs) . . .must be delivered in one of the following ways:

(a) hand delivery;

(b) courier;

(c) facsimile transmission;

(d) any other way agreed upon by the parties. [page 383]

6.6 Where the Board considers that it is impractical for any reason to deliver an application within the time period set out in these rules, the Board may make an order for substituted delivery or for such other order as may be appropriate.

7.3 A person receiving notice of an application who wants to participate in any way in the case must file a response with the Board not later than:

(a) the response date (if one has been set);

(b) one (1) day after the application under section 100, 101, or 144 was delivered;

RULE 38 HEARING PROCEDURES

Notice of Hearing

38.1 Where a hearing or consultation will be held in a case, written notice will be given to all parties setting out the time, date and place of the hearing or consultation.

38.2 Where the Registrar considers that it is impractical to give written notice of the hearing or consultation, the Registrar may give verbal or other notice of the hearing or consultation.

Written Hearings

38.4 The Board may conduct a written hearing in any case before it, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct a written hearing if a party satisfies the Board that there is good reason for not doing so.

Electronic Hearings

38.5 The Board may conduct an electronic hearing in any case before it, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct an electronic hearing if a party satisfies it that holding an electronic hearing is likely to cause the party significant prejudice.

RULE 1 ...DEFINITIONS

Definitions

1.5 In these Rules

(f) "electronic hearing" means a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another;

. . . . . [page 384]

(h) "hearing" means a hearing in any proceeding before the Board including oral hearings, written hearings and electronic hearings;

RULE 40 ADMINISTRATION

The Board may relieve against the strict application of these Rules where it considers it advisable.

(Emphasis added by italics in Rules quoted above)

[82] Section 94 of the Act provides for service of process:

94(1) Every trade union and unincorporated employers' organization in Ontario that has members in Ontario shall, within 15 days after it has enrolled its first member, file with the Board a notice in the prescribed form giving the name and address of a person resident in Ontario who is authorized by the trade union or unincorporated employers' organization to accept on its behalf service of process and notices under the Act.

(2) Whenever a trade union or unincorporated employers' organization changes the authorization referred to in subsection (1), it shall file with the Board notice thereof in the prescribed form within 15 days after making such change.

(3) Service on the person named in a notice or the latest notice, as the case may be, filed under subsection (1) is good and sufficient service for the purposes of this Act on the trade union or unincorporated employers' organization that filed the notice.

[83] The legislated combination of exclusive jurisdiction and the broad ability to self-regulate process has resulted in long-standing judicial recognition of the Board as "master of its own house" -- classically stated by Arnup J.A. in Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 341 (ON CA), [1971] 3 O.R. 832, [1971] O.J. No. 1719, 22 D.L.R. (3d) 40 (C.A.), at pp. 841-42 O.R., pp. 49 and 50 D.L.R.:

It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it.

The Board has been entrusted with very wide powers in the labour relations field, and so long as it acts within the ambit of its jurisdiction, it is for the Board itself to decide how it shall proceed.

[84] The Supreme Court of Canada gave similar recognition in Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, [page 385] where, just before referring to Re Cedarvale Tree Services Ltd. (supra), Sopinka J. observed at pp. 568 and 569 S.C.R.:

In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters of their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. . .

[85] Courts will not generally interfere with such a tribunal's procedural decisions, provided they are made fairly and within the tribunal's jurisdiction, as Gillese J.A. made clear in McNaught v. Toronto Transit Commission (2005), 2005 1485 (ON CA), 74 O.R. (3d) 278, [2005] O.J. No. 224 (C.A.), at paras. 59 and 60:

It is trite law that a duty of fairness applies to any Board decision that affects the rights, privileges or interests of a party to the hearing. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39

At the same time, it is equally clear that courts are not to interfere with the Board's procedural decisions, so long as they comply with the rules of fairness, unless they are shown to be patently unreasonable. . .

[86] There is undeniable tension as among the tribunal's ability to control its process, the duty of fairness and the degree of deference courts should afford the exercise of the tribunal's discretion in these competing areas. Context is often the balancing ingredient.

V. Discussion and Conclusions

A. Expedited proceedings

[87] The Union's submissions in this appeal began with the proposition that the Board had treated the applications as "expedited proceedings" under s. 110(18) of the Act, but that the expedited hearing process was not available in illegal strike or illegal lock-out situations ([supra,] at paras. 28 and 29). I do not agree. I conclude that the Board neither acted nor purported to act under the expedited proceedings provisions of the Act or Rules.

[88] There is a fundamental difference between the "expedited proceedings" specifically contemplated by s. 110(18) of the Act and abridgement of otherwise normal procedures. The abridgement provisions found in Rules 3.2, 6.6, 38.2, 38.4, 38.5 and 40.7 ([supra, at para. 81]) apply generally to all of the Board's procedures. This is apparent from their placement within named Parts of the Rules. These Parts are clearly of general application. [page 386]

[89] Rules 1, 3 and 6 appear under Part I entitled "General Matters". Part VII is entitled "Hearing Procedures and Administration", and contains Rules 38 ("Hearing Procedures"), 39 ("Dismissal Without A Hearing or Consultation") and 40 ("Administration"). Neither the organization of these Rules nor their language suggests any limitation of application to matters covered only by s. 110(18) of the Act (i.e., "expedited proceedings").

[90] The language of these Rules is also very general. So, for example, where Rule 3.2 states that the Board may shorten or lengthen any time period set out under the Rules, it does not limit it only to "expedited proceedings". Similarly, where the other abridgement Rules refer to an "application" or a "hearing", they are not limited to hearings under the s. 110(18) expedited process. I therefore conclude that these abridgement provisions apply to any type of application, hearing or process before the Board, whether constituted as a panel, the Chair or Vice-Chair. They are not unlike the abridgement provisions of very general application under the Rules of this court.

[91] I am comforted in this conclusion by the specific wording and placement of Rule 41, which is entitled "Expedited Proceedings":

RULE 41 EXPEDITED PROCEEDINGS

41.1 Rules 41.2 and 41.3 apply to the Ambulance Services Collective Bargaining Act, 2001, Public Sector Labour Relations Transition Act, 1997, Part X.1 of the Education Act, Part IV of the Crown Employees Collective Bargaining Act, 1993, section 61 of the Occupational Health and Safety Act, section 118(2) of the Employment Standards Act, 2000 and sections 8.1, 13, 98, 99, 114(2) and 126 to 168 of the Labour Relations Act, 1995.

41.2 In order to expedite proceedings, the Board or Registrar may, on such terms as either considers advisable, consult with the parties, conduct a pre- hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing, if any, on short notice, or cancel such hearing, or make or cause to be made such examination of records or other inquiries as either considers necessary in the circumstances.

41.3 Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide the application by limiting the parties' opportunities to present their evidence or to make their submissions, or without hearing.

[92] Rule 41 provides an abridgement process that applies to "expedited proceedings". While appropriately situated under Part VII (dealing with "Hearing Procedures and Administration"), it is specific to expedited proceedings alone. As such, it may completely restrict a party's right to present evidence and make [page 387] submissions. Rule 41.3 provides that in "expedited proceedings" the Board may decide a case "without a hearing" (emphasis added).

[93] Unless otherwise exempted (also, for example, s. 99 of the Act in respect of jurisdictional disputes), the Board must conduct a hearing before reaching a decision, and it must do so fairly and by the process established under the Act and its Rules, including rules of abridgement. In derogating from the norm through abridgement, the Board may only vary times, not eliminate them; it must give notice of a hearing, although it may vary the manner of doing so; it must conduct a hearing, although it may allow it to proceed electronically; it must allow the parties full opportunity to present evidence and make submissions, although it may direct how this is to be done, including orally or in writing, whether by evidence admissible in a court of law or not.

[94] If the abridgement rules were not of general application, it would not have been necessary to provide a specific Rule for hearings in expedited proceedings, as was done by Rule 41.

[95] Not much has been written about "expedited proceedings". Jeffrey Sack, C. Michael Mitchell and Sandy Price in Ontario Labour Relations Board Law and Practice, 3rd ed. vol.2, looseleaf (Markham, Ont.: Butterworths, 1997) at para. 10.2, trace its origins to the Report of the Ontario Royal Commission on Labour-Management Relations in the Construction Industry (Toronto: Queen's Printer, 1962) (Chair: H. Carl Goldenberg) (the "Commission"). The Commission concluded that the construction industry needed special procedures to process certification applications. At p. 72 of the Report, Recommendation B.vii stated:

The Labour Relations Act should declare a policy that construction industry cases be expedited, having regard to the special nature of the industry; special provisions should be made in the Rules of Procedure of the Board for the expeditious processing of such cases. . .

[96] At pp. 27 to 28 the Commission characterized the construction industry as uniquely unstable for purposes of certification:

The bargaining unit envisaged by the Act is a group of regularly employed persons engaged by a single employer and working at a particular location throughout the year. Construction employment does not fit this picture. It has no stability. The worker moves from job to job and from employer to employer. The duration of his employment may range from a few days to a number of months, depending on the size of the project.

[97] Trade unions (and some employer groups) made strong representations that the Board be given special authority to "expedite" construction industry certification applications. As a result, the Labour Relations Act, R.S.O. 1960, c. 202 was [page 388] amended by s. 10(3) of the Labour Relations Amendment Act, 1961-62, S.O. 1961-62, c. 68 to provide for expedited proceedings:

10(3) The Board may, subject to approval of the Lieutenant Governor in Council, make rules to expedite proceedings to which sections 90 to 96 apply [the construction industry], and such rules may provide that, for the purposes of determining the merits of an application for certification to which sections 90 to 92 apply, the Board shall make or cause to be made such examination of records and such other inquiries as it considers necessary, but the Board need not hold a hearing on such an application.

[98] The section remained virtually unchanged for over 30 years, as reflected in s. 104(14) of the Labour Relations Act, R.S.O. 1990, c. L.2:

104(14) The Board may, subject to the approval of the Lieutenant Governor in Council, make rules to expedite proceedings before the Board to which sections 119 to 138 apply [the construction industry], and the rules may provide that, for the purposes of determining the merits of an application for certification to which sections 119 to 121 apply, the Board shall make or cause to be made such examination of records and such other inquiries as it considers necessary, but the Board need not hold a hearing on such an application.

[99] The Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1 then repealed the section and replaced it with the current s. 110(18). Although there was no discussion or explanation of the amendment as it went through the legislative process, it appeared to be an expansion of the types of labour matters that uniquely required speedier processing by virtue of special difficulties such as those earlier recognized in the construction industry. In any event, there is nothing to suggest that the "expedited proceeding" is of general application or a means of addressing emergency labour situations. Indeed, its history, placement within the Act and the other structure of the Act (as discussed) lead me to conclude that expedited proceedings are a special process designed to address unique problems in certain types of industries.

[100] I conclude that the Board's general authority to abridge certain procedural requirements is quite different from its authority to conduct expedited proceedings under Rule 41. It did not act or purport to act under the "expedited proceedings" provisions of the Act. This was not an industry type or situation requiring the process to be expedited because of some unique feature of the particular labour sector or situation.

B. Abridgement

[101] The Board was quite within its authority to abridge normal procedures according to its Rules and within its jurisdiction -- provided that it afforded an appropriate level of procedural [page 389] fairness. Procedural abridgment usually requires some special circumstance warranting departure from the norm, and the degree of abridgement usually depends on the demands of the situation.

C. The content of procedural fairness

[102] I turn now to the content of the procedural fairness due [to] the parties in this case. The "factors" to be applied in assessing the Board's duty of procedural fairness were identified earlier in paras. 50 to 56 of these reasons.

[103] The Nature of the Decision: The Board enjoys a broad jurisdictional mandate covering virtually every aspect of labour relations. It must reach decisions in disputes such as this one through hearings presided over by an adjudicative panel (or single adjudicator in extraordinary circumstances). There is an application process with forms, time-lines for taking steps, a hearing process, service requirements and other procedural features detailed by Rules under the authority of the Act. The nature of the Board's decisions, the way it functions and its procedure closely resemble judicial decision making, and as such, the content of procedural fairness before the Board must generally also be like a court's. Because of this, I conclude that the Board's procedural requirements are fashioned, in part, for the purpose of assuring parties procedural fairness in an orderly manner as a court would do. I therefore conclude that Board functions like a court in the nature of the matters it decides and how it decides them.

[104] However, the way in which procedural fairness is achieved must be considered against the backdrop of the types of matters the Board is required to decide as part of its unique jurisdictional mandate, including situations and degrees of potential strife and disruption to employers, employees and the broader community. The content of procedural fairness is necessarily shaped by the context and circumstances of the particular matter under consideration.

[105] Urgency will undoubtedly create tension between the competing need to resolve a potentially dangerous situation and the fundamental justice requirement that it be done fairly. The ability to accommodate and relieve such tension is achieved through the broad control the Board is given over its process, including through such means as abridgement and the other adjusting features already discussed. These are only instruments of adjustment and accommodation, however, not means of escaping the duty of procedural fairness.

[106] The nature of the legislative scheme: Although there is no appeal process, and therefore initial procedural fairness may be [page 390] all the more important, s. 114 grants the Board jurisdiction to reconsider a decision or order, and to vary or revoke it. So a decision of first instance is not necessarily final. The availability of reconsideration is a significant procedural protection that heightens the ultimate content of procedural fairness for a party, but may also permit the tribunal greater flexibility in the first instance. This is particularly so when a decision may have to be taken quickly because of some pressing circumstance.

[107] The reconsideration process also requires a hearing with full opportunity to present evidence and make submissions. The Union successfully persuaded the Board to reconsider the "cease and desist" order made at the first hearing in this case, and to do so later the same day. The fact that the Union had this avenue available, availed itself of it expeditiously with the issue framed in the terms it sought, went a long way to addressing complaints of procedural fairness. It is also significant that reconsideration may include a complete rehearing, rather than the narrower appeal process that courts usually follow. It appears that the reconsideration in this case operated as a full rehearing.

[108] As the Vice-Chair observed in the second hearing, grievance and arbitration processes were also options for the resolution of the particular dispute, both before and after the two hearings. The existence of alternative avenues of resolution must be acknowledged when assessing the content of the procedural fairness accorded the parties in this situation. Because of the urgency of the circumstances from their competing perspectives, the TTC and Union each sought and obtained speedy hearings. That was a matter of choice, even though the other avenues of resolution were available, although they would have taken much more time to pursue.

[109] The importance of the decision to the party affected: As L'Heureux-Dubé J. observed in Baker (supra, at pp. 838 and 839 S.C.R.): "The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the protections that will be mandated." Thus, when the right to continue one's profession or employment is at stake the importance of the fairness component is elevated: Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, at p. 1113 S.C.R.

[110] The decisions resulting from both hearings were important to both sides. However, being ordered to stop picketing did not end the Union members' jobs or exhaust other potential redress and remedy. On the other hand, the employer's business had been brought to a halt without prior warning and with very serious consequence to the broader community. The employees [page 391] may have had to work in circumstances they did not prefer, but they still had recourse, and in fact the court was advised at the hearing that the matter was subsequently resolved, although details were not provided.

[111] Legitimate expectations of the party challenging the decision: Given the nature of the decision, the legislative scheme and the dispute as discussed, the Union had a legitimate expectation of participation in any process that might result in an order affecting it or its members. It had a reasonable expectation to make its position (together with the facts and circumstances relied on in taking that position) known to the decision-maker so that the decision-maker might reach an informed conclusion. In short, the Union rightfully expected there would be a hearing, and that it would have the right to participate meaningfully. In all but "expedited proceedings" under the Act, affected parties are entitled to a hearing and "full opportunity to present evidence and to make submissions" (s. 110(16) of the Act). The Union complained that it did not have the right to participate in the first hearing and that the quality of the second hearing fell short of procedural fairness. I do not agree with this position and will return to it shortly.

[112] The nature of the deference accorded the decision- maker: Again, as L'Heureux-Dubé J. described in Baker (supra, at p. 840 S.C.R.), an analysis of fairness ". . . should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. . .". At p. 659 S.C.R. of Congrégation des témoins (supra), McLachlin C.J. put it thus: "The fifth factor . . . calls upon the reviewing court to acknowledge that the public body may be better positioned than the judiciary in certain matters to render a decision, and to examine whether the decision in question falls within this realm." The justices noted that this factor may not be determinative or carry much weight.

[113] Irrespective of its expertise, the Board must give parties to disputes such as this a right of hearing with full opportunity to present evidence and make submissions. That is an essential requirement of the Act. Expertise cannot operate to the exclusive benefit of only one of the parties.

[114] However, the Board must be credited with expertise in understanding the nature of the dispute, assessing the urgency of resolution, and recognizing the underlying tactics, strategies and dynamics of labour relations disputes generally and in this particular case. It must be accorded considerable respect in its [page 392] choices of procedure to address these considerations, provided fundamental fairness is appropriately respected and afforded in all of the circumstances of the case.

[115] It is common ground that the Board is a tribunal of great expertise, with considerable history and experience in designing and applying its own procedures. It is charged with the important function of administering collective bargaining laws, controlling and enforcing the resulting rights and responsibilities on all sides, maintaining balance and peace in labour relations, and resolving disputes in an expeditious manner. In carrying out its function, the Board not only serves the general and individual interests of employers and employees. It also serves an important function in maintaining a degree of peace and economic order within the larger community. For these reasons, the Board also merits a high degree of deference with respect to the fairness of its procedural decisions.

D. Propriety of hearing and notice

[116] Dealing now with whether there was sufficient content of procedural fairness in the present case, I start with the "hearing" issue. Although a hearing was held in the first instance, the Union did not appear and therefore did not participate. The Union's position was that it was not notified or permitted to participate, so there was a complete failure of procedural fairness.

[117] The Chair was aware of the notification issue because in para. 3 of his decision, he observed:

Immediately upon receipt of the application, I attempted to contact the President of the ATU, the Vice-President of the ATU and counsel who normally act for the ATU in matters before the Board. Being unsuccessful in speaking to these officers or counsel over the telephone, I left telephone messages advising them that a hearing by conference call was scheduled for 5:30 AM today May 29, 2006, providing them with a call-in number to deal with the application. Further, I sent a notice of such hearing by conference call to the ATU by facsimile.

[118] It is unusual that the Chair himself would make such efforts to contact the Union (let alone before five o'clock in the morning). The party seeking a remedy usually has the obligation of notification and satisfying the tribunal that the requirement has been met. That is how the Board's Rules read too, although it must be remembered that the Rules permit verbal or other notice of a hearing where written notice is impractical ([supra,] at para. [81]). This speaks to the sense of urgency the Chair must have had about the situation. Notice was obviously on his mind. He concluded in para. 4 of his decision that on the basis of [page 393] the material filed, the Union had been served with the application and had notice of the telephone conference hearing.

[119] In the second paragraph of his decision, the Chair acknowledged the allegation of unlawful strike "with the consequence that the TTC is not able to provide transit this morning, May 29, 2006". The Union might regard this as a one- sided finding of fact, although it was never denied that pickets were up and workers other than the aggrieved maintenance employees were refusing to cross the lines. This must have been a significant factor in the Vice-Chair's considerations at the second hearing too.

[120] It does not take great expertise to understand the enormous disruption that an unwarned total breakdown of public transit would have on the lives of hundreds of thousands of ordinary people in the Greater Toronto Area. Earnings would be lost, families' daily routines disrupted, schools left empty and the economic life of the community thrown into disarray. The consequences of such a disruption are so obvious and potentially dire as to need little comment. Being totally paralyzed, the TTC was essentially out of business with costs mounting -- and one way or another those costs would also be passed on to the public. If there is a theoretical continuum of urgency, the situation on the morning of May 29, 2006 was very near the "most urgent" end of the scale.

[121] I conclude that the Chair, being an expert in labour relations within the context of the Act, fully appreciated the nuances of the situation. Given his experience and the years of underlying jurisprudence developed by the Board, he possessed a focused practical and legal expertise. He could well have postponed the hearing until the next day or next week to better convenience the Board or one of the parties. He obviously thought it necessary to act quickly.

[122] There was also sufficient factual basis upon which to conclude that the Union was aware of the pending application and was avoiding service. The TTC's Director of Human Relations called the Union's Vice-President at 1:21 a.m. and left a voice message that a cease and desist order was being sought. At 1:45 a.m., he got through to the Vice-President by telephone and they talked about service of the application. This is when the Vice-President indicated he would not willingly be served or found for that purpose.

[123] The Union's Vice-President acknowledged that picketing was underway. He represented that he was telling picketers to return to work. The implication is that the Vice-President knew the picketing was wrong. Being informed that an application was pending and being asked to be available for service at that hour, he [page 394] also had to be aware that the TTC planned to approach the Board immediately on an emergency basis. He had to know that the TTC was effectively shut down and the far- reaching consequences of the situation. It is difficult to believe that the other members of the Union executive were not aware of what was happening given the development of the dispute and the day's events.

[124] The Certificate of Delivery accompanying the application indicated that the Union's Vice-President had been served by facsimile (not personally) at the number indicated. It also stated there had been delivery by hand to Mr. Fellows as counsel for the Union. It then went on to certify that both had occurred at 3:15 a.m.

[125] It was not challenged that the fax had been sent at 3:15 a.m. However, the delivery to Mr. Fellows did not occur until around 4:00 a.m., so the Certificate was incorrect in that regard. The error may have occurred because the two events were stated in concert. Nevertheless, TTC's counsel deposed that he had advised the Chair of his conversations with Mr. Fellows, and that Mr. Fellows was not retained. I am satisfied that the error in respect of Mr. Fellows' status was corrected, and that the misrepresentation of the timing of delivery to Mr. Fellows was not a serious one (if it too was not corrected in the TTC's counsel's conversation with the Chair). The Vice- Chair expressed his satisfaction that no counsel had acted inappropriately.

[126] Based on Rule 6.4 (supra, at para. [81]), facsimile transmission of the application and the notice of hearing may constitute proper delivery. The Union did not address the question of who its registered person for service of process was. The TTC asked the Vice-President where he could be served with the application. Other efforts were undertaken when he would not co-operate, including sending by facsimile.

[127] It may well be that the Vice-President was the Union's designated person for service of process. That would explain the TTC's initial interest in him for service of the application. If he was the designated person, then service by facsimile could have been effective pursuant to Rule 6.4. That detail was not disclosed to or discussed with this court. However, I am satisfied that the Chair and Vice-Chair were very familiar with the rules of service in matters before them and that there was sufficient factual basis for their conclusions in that regard.

[128] The Vice-President did not file an affidavit denying he had refused to co-operate in being served, or saying that he had not received telephone messages or facsimile transmissions about the application and the electronic hearing from TTC's counsel or the Chair. Nor did any other member of the Union [page 395] executive file an affidavit deposing that telephone messages and facsimiles had not been received. The Union did not deny that its Vice-President had been apprised of the pending application or that he had refused to co-operate in being served.

[129] The Chair did not know the Union's position (through Mr. Fellows) of advising TTC's counsel to serve Ms. Alden. However, assuming that Mr. Fellows' version of events had been known and accepted, it was never suggested that there was an agreement that Ms. Alden was a person authorized to accept service ([supra,] at para. [82] in reference to s. 94 of the Act). Without the Union's agreement, she could not be the Union's representative for service of process and she was not a named party in the application. Also, Mr. Fellows could not direct service if he was not acting for the Union. Serving Ms. Alden might have been effective, although that can only be speculated at this point. In any event, the TTC took the steps it did with a view to obtaining an order for substituted service, which it could not know would be granted.

[130] If Ms. Alden was aware that the application had been delivered to Mr. Fellows and was on its way to the Chair's home at such an early hour, she also had to know that the TTC was looking for an emergency hearing at the earliest possible time. It is strange under those circumstances to be sitting waiting for a knock at the door. If Ms. Alden was the Union's counsel, she must also have known who was authorized to accept service and that it could be achieved by facsimile. If Mr. Fellows' version of communication with TTC's counsel is correct, it may be as questionable that Ms. Alden did not try to reach the TTC in the circumstances as the TTC's failure to reach her. One would think the Union might welcome the Board's involvement and attempt to facilitate a speedy hearing as a means of advancing its members' complaint, unless delay was a strategy.

[131] If the Union complains of improper or inadequate service, it bears the onus of satisfying the court that was so. Many factual questions were not addressed, as the foregoing discussion demonstrates. I am not satisfied that the Union has met its burden on a factual basis.

[132] In any event, in his covering letter TTC's counsel requested an order for substituted service, and he advised the Chair orally of the efforts made to serve and notify the Union. The Chair also took his own steps to notify verbally and by facsimile as he described in his decision, and which was available under Rule 38.2 ([supra,] at para. [81]). In view of the urgent circumstances, the efforts made to effect service and to contact the Union, the Chair was also well within his right to make an order [page 396] for substituted service under Rule 6.6 ([supra,] at para. [81]). Although the Chair's finding that there had been service of the application is supportable, I am also comfortable in concluding that it was in response to the request for substituted service.

[133] The Union did not respond to the efforts made to contact it, and it did not appear at the first hearing (either to participate or seek further time) although found to have been served and notified. Therefore, there is no basis for finding a breach either of Rule 38.5 or s. 6(5) of the S.P.P.A. Indeed, s. 6(5)(d) permits the tribunal to proceed in such circumstances, and it did. In failing to appear, the Union passed up its opportunity to address the question of significant prejudice by the holding of an electronic hearing. Given the valid finding of service and notice, the failure was the Union's, not the TTC's or the Board's. I see no breach of the Act, the Rules or the S.P.P.A., and in these circumstances there could be no conflict between the similar provisions of the two statutes. Therefore, I conclude that there was no breach of procedural fairness in respect of service, notification or the opportunity to address prejudice in respect of an electronic hearing.

[134] The case of Tomko v. Nova Scotia (Labour Relations Board), 1975 183 (SCC), [1977] 1 S.C.R. 112, [1975] S.C.J. No. 111, 69 D.L.R. (3d) 250 involved an interim application to the Nova Scotia Labour Relations Board for a cease and desist order because of an allegedly unlawful strike. One of the responding parties named was the Union's business manager, Tomko, who was called in advance of the hearing by the Board's chief executive officer to be advised that the complaint had been filed and to discuss generally what was happening at the strike site. He was not given a copy of the complaint nor read its contents. He did not respond to the complaint. An interim order was granted and eventually Tomko was charged with failing to comply with the order. He moved to quash the order and prohibit the summons on the basis that he had not been given a copy of the complaint or an opportunity to make representations.

[135] Although the legislative scheme differed greatly from our own, the court recognized that general knowledge of the complaint and what it was about is sufficient in appropriate circumstances to satisfy natural justice requirements. Laskin C.J.C. observed at p. 259 D.L.R. of the decision (supra):

. . . Having contacted the manager of the project where the strike was on foot he then telephoned Tomko to inform him of the complaint but apparently without reading the whole document to him. There was a short discussion of what was going on at the site of the strike and whether the men had been directed to return to work. I accept that Tomko was not given any detail of the nature of the formal complaint other than that it had been filed, but his evidence is clear [page 397] that he knew what it was all about, knew the issue that prompted the complaint and knew that its purpose was to have the Construction Industry Panel bring the strike to an end. Unless therefore, there is an inexorable requirement under the applicable law that he must be given a copy of the formal complaint, in order to make the representations thereon, before any action on the complaint may be taken by the Panel, I see no merit in the appellant's contention that there was in this respect a failure of natural justice . . .

(Emphasis added)

[136] There was no "inexorable requirement" in our case either, given the Board's broad authority over its process, including through abridgement and substituted service where appropriate and necessary.

E. Abridgement and limitation of hearing time

[137] There is no doubt that the initial application was heard expeditiously. However, that was by abridgement of time under the Board's Rules, not by the "expedited hearing" process under the Act and Rules. There was nothing wrong with abridging time and other normal procedural requirements if the circumstances justified it. In this case, the circumstances were extreme and warranted quick intervention. The Board's abridgment of times and procedures, and its finding of proper service and notice were appropriate in the context of the situation and did not operate as a breach of fairness.

[138] Had the Union appeared at the first hearing, it would have been entitled to present evidence and make submissions. Because it did not (or was denied the opportunity, as it saw it), it sought the reconsideration hearing. As applicant in that hearing, I presume that the Union agreed to the midday scheduling. The Union wanted the cease and desist order set aside and replaced with a very different order -- and it must have wanted that relief quickly. The Union was also seeking urgent resolution of the dispute, but framed as an unlawful lock-out. In doing so, it was pre-empting the tribunal's normally scheduled work, and the tribunal accommodated.

[139] In the circumstances, I see nothing wrong with the Vice-Chair limiting the time for presentations. Many courts do it as a normal part of scheduling, including courts of appeal. The amount of time permitted must be sufficient, depending on the complexity of the matter and the way in which evidence is adduced.

[140] In this case, both parties filed lengthy and detailed outlines of the history of their dispute and its development from their separate perspectives, together with copies of the collective agreement in question, related memoranda, correspondence and other documents. The Chair and Vice-Chair had the [page 398] benefit of reviewing these materials, and of course the Vice-Chair had the benefit of the materials on both sides at the reconsideration hearing.

[141] The Union and TTC were both free to use their allotted time as they wished. Although it would not have been an efficient use, given the constraints, the Union could have opted to present Mr. Fellows' viva voce testimony. There is also no reason why the Union could not have presented Mr. Fellows' information about the events of the morning of May 29th in affidavit or other written form, had it chosen to do so. It was not a complicated or lengthy account. The competing versions of Mr. Fellows' involvement were easy to summarize orally in a few minutes, as appears to have occurred in any event. Both sides filed affidavits in this proceeding outlining the presentation of the issue before the Vice-Chair. Although the Union may have wanted to present the evidence differently, it appears that the tribunal was informed.

[142] It must be assumed that the Chair and Vice-Chair reviewed all the materials before them. The Vice-Chair referred to the materials in his decision. He is entitled to considerable deference in his ability to identify the nature and complexity of the dispute, and to assess the time available and necessary to deal with it, given its context, urgency and the need for speedy resolution. The fact that a time limit was imposed does not mean that the Union was denied full opportunity to present evidence and submissions.

F. The Form of evidence at a hearing

[143] The Board is within its statutory right (s. 111(2)) to require that evidence be submitted in writing, whether such evidence is admissible in a court of law or not. It is a matter of discretion. The Board can undoubtedly require oral testimony if it finds it necessary to resolve an issue, and presumably it could have done so here too -- even after the hearing was underway.

[144] Section 110(16) qualifies the Board's control over its process by requiring it to give parties "full opportunity . . . to present their evidence and make their submissions". This court addressed the meaning of "presenting" evidence in Ontario College of Teachers v. Power Workers' Union, supra. In that case, the Board had refused to hear oral evidence in addition to the written materials and oral submissions received. The College sought judicial review on the basis that the refusal was a breach of its rights under s. 110(16) of the Act and a denial of natural justice. After observing that what amounts to a denial of natural justice depends on the circumstances ([supra,] at para. 51), O'Leary J. held at para. 8 of his reasons: [page 399]

It is to be noted that section 110(16) does not say that a party shall be given the opportunity to "call" evidence, rather, it provides that the party is to have the opportunity to "present" evidence. Here the evidence was presented in submissions and the Board accepted, as proven, all the submissions made. Since even on that basis, the Board was not satisfied that the three Secretaries should be excluded from the bargaining unit, there was no purpose in hearing the evidence from the witnesses. In such circumstances, there is, in my view, no denial of natural justice for the College has, in fact been heard.

(Emphasis added)

[145] The Union had the full right of participation in the reconsideration hearing (although I do not conclude there was anything wrong with the initial hearing, given the context of the dispute and the steps taken to inform the Union). The Union was able to put its position and evidence before the decision- maker in a detailed and unrestricted manner in its written materials. It also presented evidence orally in the course of its submissions. Except as to time, it was not restricted at the hearing. It had appropriate and equal opportunity with the TTC to put its position and supporting evidence before the decision-maker, and it did so. Its main complaint was that it could not present Mr. Fellows' evidence in a viva voce format.

[146] I conclude that "full opportunity" to present evidence and make submissions does not entitle a party to command the tribunal's process, particularly where the Board has been given specific jurisdiction to determine its own practice and procedure. "Full opportunity" must be assessed in the context of the problem under consideration and surrounding circumstances, which have been discussed extensively in these reasons. The question is whether the Union had sufficient and fair opportunity to present its evidence and make its position clear to the decision-maker through submissions. In the urgency of the situation, I conclude that it did and that there was no failure of procedural fairness on that account.

[147] The Board was required to afford a high content of procedural fairness. I conclude that it met the standard in the unusual and exigent circumstances of the case before it. The fact of the reconsideration process and other means of resolving the dispute contained in the Act also ameliorated or repaired any fairness concerns that might have existed from the initial hearing, which because of the Act's privative clauses would otherwise have been beyond appeal.

G. Curing effect of second hearing

[148] The Supreme Court of Canada found that a subsequent hearing could cure a defect in an earlier one. In Posluns v. Toronto Stock Exchange, 1968 6 (SCC), [1968] S.C.R. 330, [1968] S.C.J. No. 19, 67 D.L.R. (2d) 165 at p. 174 D.L.R., [page 400] Martland J. supported the proposition in adopting Lord Reid's statement in Ridge v. Baldwin, [1964] A.C. 40, [1963] 2 W.L.R. 935, at p. 79 A.C.:

I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.

[149] If there was a deficiency of fairness in the initial hearing, I am satisfied and find that it was cured by the reconsideration hearing. For the reasons discussed, this second hearing was fairly conducted and provided the Union with adequate opportunity to put its position to the decision-maker.

VI. General Conclusions and Order

[150] The urgency of the underlying public transportation shutdown justified that immediate steps be taken toward resolution. There was a basis for the adjudicator to find that service had been effected, given the combination of efforts made to deliver the application and notice, the established formal rules of delivery and the Union's relaxed attitude to getting involved when it probably knew urgent measures were being pursued to address an obviously serious situation. The abridging of otherwise normal procedures was justified by the nature of the dispute and the dire consequences of delay.

[151] The second hearing proceeded expeditiously at the Union's initiative and was framed according to its perspective of the dispute. The Union was able to present full written materials that constituted evidence and submissions, and it was able to present further evidence and submissions orally. It was not restricted in putting its complaint, with the evidentiary basis for it, before the Board, and to do so fully and adequately in the context of the urgency underlying its application. It was similarly able to respond to the TTC's complaint at the reconsideration hearing, even though it initially failed to appear.

[152] For all these reasons, the Union's application is dismissed.

[153] In respect of costs, it was agreed at the close of argument that no costs would be sought by the Board nor ordered against it. Since then, counsel for the TTC and Union have advised the Registrar in writing that, as between them, costs would follow the event in the fixed sum of $10,000, inclusive of disbursements and GST. It is therefore ordered that the Union pay costs in that amount and on that basis to the TTC.

Application dismissed.