Greater Essex County District School Board v. International Brotherhood of Electrical Workers, Local 773 et al. [Indexed as: Greater Essex County District School Board v. International Brotherhood of Electrical Workers, Local 773]
83 O.R. (3d) 601
Ontario Superior Court of Justice,
Divisional Court,
Carnwath, Spence and Sachs JJ.
January 22, 2007
Administrative law -- Judicial review -- Standard of review -- Labour Relations Board finding that it had jurisdiction to make single employer declaration under s. 1(4) of Labour Relations Act in case of successor school boards notwithstanding provisions of Public Sector Labour Relations Transition Act and Regulation 457/97 -- Standard of review of that decision being patent unreasonableness -- Labour Relations Act, S.O. 1995, c. 1, s. 1(4) -- Public Sector Labour Relations Transition Act, S.O. 1997, c. 21 -- Regulation 457/97. [page602]
Employment -- Labour relations -- Single employer -- Labour Relations Board finding that it had jurisdiction to make single employer declaration under s. 1(4) of Labour Relations Act in case of successor school boards notwithstanding provisions of Public Sector Labour Relations Transition Act and Regulation 457/97 -- Board reaching that decision by narrowly restricting power of subordinate legislation passed under PSLRTA to modify or repeal provisions of Act -- Neither that decision nor decision that former and successor school boards were single employer under s. 1(4) of Act being patently unreasonable -- Labour Relations Act, S.O. 1995, c. 1, s. 1(4) -- Public Sector Labour Relations Transition Act, S.O. 1997, c. 21, s. 39 -- Regulation 457/97.
Prior to January 1, 1998, there were two public school boards in the Greater Windsor/Essex County area: the Windsor Board and the Essex County Board. Each of the respondent unions was certified under the construction industry provisions of the Labour Relations Act (the "Act") to be the bargaining agents, in their respective trades, of the employees of the Windsor Board who performed construction work in those trades. Before January 1, 1998, none of the unions held bargaining rights with respect to the employees of the Essex Board. As of January 1, 1998, the applicant was created, and both the Windsor Board and the Essex County Board were merged with and continued as the applicant. The Public Sector Labour Relations Transition Act (the "PSLRTA") applied upon the assumption by a district school board of the jurisdiction of two or more old boards. Section 39(1) of the PSLRTA provides that, "In the event of a conflict or inconsistency between this Act or a regulation made under this Act and any other Act, this Act or the regulation prevails." Section 1(1) of Regulation 457/97 applied if a successor employer was a municipality or school board and a construction union had bargaining rights with respect to a bargaining unit of that employer that contained or would have contained employees who performed construction work. Paragraph 2 of s. 1(1) provided that "...a collective agreement that bound the predecessor employer immediately before the changeover date does not bind the successor employer with respect to construction work performed outside the geographic jurisdiction of the predecessor employer unless the successor employer agrees". Thus, pursuant to para. 2 of s. 1(1) of the Regulation, the applicant would be bound by the collective agreement of the Windsor Board only with respect to those employees within the jurisdiction of the City of Windsor but not outside it. In several applications before the Labour Relations Board, unions sought to have the applicant declared to be one employer with the former Windsor Board pursuant to s. 1(4) of the Act or, alternatively, they sought a declaration that the applicant was a successor to the former Windsor Board for the purposes of s. 69 of the Act. The applicant raised a preliminary objection, arguing that the applications were precluded by the PSLRTA and the Regulation. The Board found that the provisions of the PSLRTA precluded it from exercising its authority under s. 69 of the Act, as s. 13 of the PSLRTA provides that s. 69 of the Act does not apply to the restructuring of school boards. However, the Board granted the unions' application under s. 1(4) of the Act and declared that the Windsor Board and the applicant were one employer for the purposes of the Act. The applicant brought an application for judicial review of that decision.
Held, the application should be dismissed.
Per Sachs J. (Spence J. concurring): Considering the presence of a very strong privative clause, the Board's expertise and its role in settling disputes, and the nature of the questions before it, which involved the interpretation of and interplay between two labour relations statutes, the standard of review of the Board's [page603] decision was patent unreasonableness. Applying that standard, a decision should not be interfered with unless it is clearly irrational.
In coming to the conclusion that the legislature had not removed or replaced the powers of the Board under s. 1(4) of the Act by virtue of the PSLRTA and the Regulation, the Board noted that neither the PSLRTA nor the Regulation make any reference to s. 1(4). The Board found that while s. 39 of the PSLRTA contemplates that the Lieutenant Governor in Council has the power to pass regulations that override the will of the legislature as expressed in another statute, ss. 40(1)(c) and 40(3) of the PSLRTA, the sections that govern the regulation- making power under the PSLRTA, limit the effect of regulations to the operation of the PSLRTA. That is, nothing in the regulations promulgated under the authority of s. 40 can apply to vary or contradict another statute. In coming to the decision it did, the Board sought to find an interpretation that avoided a conflict between the Regulation and s. 1(4) of the Act. In doing so, it narrowly restricted the power of subordinate legislation passed under the PSLRTA to modify or repeal the provisions of the Act. This decision could not be said to defeat the purposes of the PSLRTA, or to render any of the provisions being dealt with meaningless. The decision that the Board had discretion under s. 1(4) of the Act was not clearly irrational.
The Board found that s. 1(4) of the Act sets out four pre- conditions to the exercise of the Board's discretion to make a single employer declaration: (1) that there be two or more entities; (2) that they carry on associated or related businesses or activities; (3) whether or not simultaneously; (4) under common direction or control. The Board found that each of those statutory preconditions was met in this case. That conclusion gave a very expansive meaning to control or direction, but was not patently unreasonable.
Per Carnwath J. (dissenting): The applicable standard of review was patent unreasonableness. The decision of the Board was patently unreasonable. The construction placed on s. 39(1) of the PSLRTA was so narrow as to render it meaningless. Moreover, the preconditions of s. 4(1) of the Act were not met in any event.
APPLICATION for judicial review of a decision of the Ontario Labour Relations Board.
Cases referred to Brantford (City) Public Utilities Commission v. Brantford (City) (1998), 1998 1912 (ON CA), 36 O.R. (3d) 419, [1996] O.J. No. 5383, 44 M.P.L.R. (2d) 151 (C.A.), revg (1996), 1996 8243 (ON SC), 31 O.R. (3d) 465, [1996] O.J. No. 5383, 40 M.P.L.R. (2d) 176 (Gen. Div.); Britnell v. Secretary of State for Social Security, [1991] 2 All E.R. 726, [1991] 1 W.L.R. 198 (H.L.); Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1, 84 Alta. L.R. (2d) 129, 88 D.L.R. (4th) 1, 132 N.R. 321, [1992] 2 W.W.R. 193; Gray (Re) (1918), 1918 533 (SCC), 57 S.C.R. 150, 42 D.L.R. 1, [1918] 3 W.W.R. 111; Ontario Public School Boards' Assn. v. Ontario (Attorney General), 1997 12352 (ON SC), [1997] O.J. No. 3184, 151 D.L.R. (4th) 346 (Gen. Div.); R. v. P. (J.) (2003), 2003 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876, 231 D.L.R. (4th) 179, 111 C.R.R. (2d) 173, 177 C.C.C. (3d) 522, 14 C.R. (6th) 69 (C.A.); Thoburn v. Sunderland City Council, [2002] E.W.J. No. 652, [2002] 4 All E.R.156, [2002] 3 W.L.R. 247 (Q.B.), consd Other cases referred to Brinks Canada Ltd., [1987] O.L.R.B. Rep. May 647; 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 Assn. of Industrial, Mechanical & Allied Workers, Local 14 v. Paccar of Canada Ltd., 1989 49 (SCC), [1989] 2 S.C.R. 983, [1989] S.C.J. No. 107, 40 B.C.L.R. (2d) 1, 62 D.L.R. (4th) 437, 102 N.R. 1, [1989] 6 W.W.R. 673, 89 C.L.L.C. Â14,050, 40 Admin. L.R. 181; Capricorn Acoustics & Drywall Ltd., [1986] O.L.R.B. Rep. Mar. 308; [page604] 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; Donald A. Foley Ltd., [1980] O.L.R.B. Rep. April 436; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Evans - Kennedy Construction Ltd., [1979] O.L.R.B. Rep. May 388; Harley Transport Ltd., [1984] O.L.R.B. Rep. Oct. 1433; 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, 272 N.R. 201, 74 C.L.R.B.R. (2d) 85, 2001 C.L.L.C. Â220-050, 2001 SCC 47; JDS Investments Ltd., [1981] O.L.R.B. Rep. Mar. 294; John Hayman and Sons Co. Ltd., [1984] O.L.R.B. Rep. June 822; 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; Milton Hydro-Electric Commission, [2002] O.L.R.B. Rep. July/ Aug. 701; National Automobile, Aerospace Transportation and General Workers Union of Canada (C.A.W.-Canada) Local No. 27 v. London Machinery Inc. (2006), 2006 8711 (ON CA), 79 O.R. (3d) 444, [2006] O.J. No. 1087, 209 O.A.C. 226, 2006 C.L.L.C. Â210-018 (C.A.); 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.); Orange Personal Communications Ltd., [2001] Eu. L.R. 165, [2002] E.W.J. No. 5820 (H.C.J., Q.B. Div. (England & Wales)); 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; 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; Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004] 7 W.W.R. 411, 2004 SCC 23, 29 Alta. L.R. (4th) 1, 14 Admin. L.R. (4th) 165 Statutes referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4, 55(1) Education Act, R.S.O. 1990, c. E.2, s. 163(2) Education Quality Improvement Act, S.O. 1997, c. 31 Employment Standards Act, 2000, S.O. 2000, c. 41 European Communities Act 1972 (U.K.), 1972, c. 68 Fewer School Boards Act, 1997, S.O. 1997, c. 3 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 1(4), 2, 69, 114, 116, 162, 163(2) Military Service Act, 1917, S.C. 1917, c. 19 Municipal Act, 2001, S.O. 2001, c. 25 Power Corporation Act, R.S.O. 1990, c. P.18 Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21, Sch. B, ss. 1, 7(1), (2), 13, 14, 15(1), (3), 37(1), 39(1), 40(1), (3) Public Utilities Act, R.S.O. 1990, c. P.52 War Measures Act, 1914, S.C. 1914, c. 2 Rules and regulations referred to Construction Work Regulation, O. Reg. 457/97, s. 1(1) Authorities referred to Rt. Hon. The Lord Rippon of Hexam Q.C., "Henry VIII Clauses" (1989) 10 Statute L.Rev. 205 [page605]
Leonard P. Kavanaugh, Q.C., for the applicant. Stephen B.D. Wahl, for respondent Unions. Leonard Marvy, for respondent Ontario Labour Relations Board.
SACHS J. (SPENCE J. concurring): --
Overview
1This is an application to review and set aside several decisions of the Labour Relations Board (the "Board") that were made as a result of applications brought by the respondent Unions under s. 1(4) of the Labour Relations Act (the "Act") [See Note 1 below] to declare that the applicant (Greater Essex County District School Board) and the former Board of Education for the City of Windsor (the "Windsor Board") should be treated as a "single employer" for the purposes of the Act. The effect of the decision is that the provincial collective agreement of the Windsor Board binds the applicant outside the geographic jurisdiction of the City of Windsor.
2The first issue raised on the application for judicial review is the standard of review applicable to a decision of the Board that involves the interpretation of a statute or regulation. The applicant employer submits that the appropriate standard is correctness. The respondent Unions say that the standard is patent unreasonableness. However, the applicant also argues that, applying either standard, the decisions under review cannot stand.
3For the reasons that follow, I find that the appropriate standard of review this court should apply to the Board's decision is patent unreasonableness. Applying that standard, I would dismiss the application.
Factual Background
The situation prior to January 1, 1998
4Before January 1, 1998, there were two public school boards in the Greater Windsor/Essex County area: the Windsor Board (which looked after the City of Windsor) and the Essex County Board (which looked after the County of Essex, except for the [page606] City of Windsor). Both Boards were created pursuant to the authority of the Education Act. [See Note 2 below]
5Each of the respondent Unions was certified under the construction industry provisions of the Act to be the bargaining agents, in their respective trades, of the employees of the Windsor Board who performed construction work in those trades. Additionally, pursuant to s. 163(2) of the Act, the relevant provincial collective agreement became binding upon the Windsor Board. Under the Act, a provincial collective agreement is a collective agreement whose geographic jurisdiction is the Province of Ontario.
6Prior to January 1, 1998, none of the respondent Unions held bargaining rights with respect to the employees of the Essex Board.
Changes effected as of January 1, 1998
7In 1997, the Ontario legislature enacted the Fewer School Boards Act, 1997 [See Note 3 below] and the Education Quality Improvement Act. [See Note 4 below As a consequence of these statutes, as of January 1, 1998, the applicant (The Greater Essex County District School Board) was created and both the Windsor Board and the Essex County Board were "merged with and continued as" the applicant.
8During the same year, the Ontario legislature also passed the Public Sector Labour Relations Transition Act ("P.S.L.R.T.A."). [See Note 5 below] The P.S.L.R.T.A. is legislation that was enacted, among other things,
to facilitate the [establishment of] effective and rationalized bargaining unit structures in restructured broader public sector organizations and to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances. [See Note 6 below]
9Pursuant to s. 7 of the P.S.L.R.T.A., it applied "upon the assumption by a district school board of the jurisdiction of two or more old boards". Thus, the P.S.L.R.T.A. applied to the applicant and its relationship with the respondent Unions. [page607]
10The following are the provisions of the P.S.L.R.T.A. that are relevant to this application. Section 7(2) of the P.S.L.R.T.A. specifies that:
for the purposes of this Act, the old boards are the predecessor employers and the district school board is the successor employer.
11Section 13 of the P.S.L.R.T.A. states that s. 69 (the successor employer provision of the Act) "does not apply with respect to an occurrence described in sections 3 to 10". Pursuant to s. 7, one of these occurrences is "the assumption by a district school board of the jurisdiction of two or more old boards".
12With respect to bargaining units and their bargaining rights, s. 14 of the P.S.L.R.T.A. provides as follows:
Bargaining Units
14(1) On the changeover date [See Note 7 below] each bargaining agent that had bargaining rights in respect of a bargaining unit of a predecessor employer immediately before the changeover date has bargaining rights in respect of a like bargaining unit of the successor employer, but the description of the bargaining unit shall be such as to include only,
(a) employees who immediately before the changeover date were employees of the predecessor employer in the bargaining unit for which the bargaining agent has bargaining rights, and
(b) employees who are hired to replace employees described in clause (a).
With respect to the application of collective agreements and the status of successor employers in relation to those agreements, the P.S.L.R.T.A. contains the following provisions:
Collective Agreements
15(1) The collective agreement, if any, that applies with respect to employees of a predecessor employer immediately before the changeover date continues to apply with respect to those employees who are employed by the successor employer on or after the changeover date and with respect to employees hired by the successor employer to replace such employees.
Status of successor employer
(3) The successor employer is bound by the collective agreement if he, she or it had been a party to it. The successor employer shall be deemed to be the employer under the collective agreement.
13The P.S.L.R.T.A. delegates authority to the Lieutenant Governor in Council to make certain regulations. Specifically, [page608] respecting the construction industry, the P.S.L.R.T.A. provides as follows:
Regulations
40(1) The Lieutenant Governor in Council may make regulations,
(b) governing how this Act applies with respect to employees of a predecessor employer who perform construction work and who, immediately before the changeover date, are in a bargaining unit with respect to which a construction union has bargaining rights;
(3) A regulation under clause 1(b) may,
(a) vary the application of this Act;
(b) prescribe provisions to operate in place of any part of this Act;
(c) prescribe provisions to operate in addition to this Act.
14Pursuant to this authority the Lieutenant Governor in Council passed Ontario Regulation 457/97 (the "Regulation"). The relevant portion of the Regulation reads as follows:
1(1) If a predecessor employer was a municipality or a school board and a construction union had bargaining rights with respect to a bargaining unit of that employer that contained or would have contained employees who performed construction work, the following apply:
The description of the bargaining unit of the successor employer referred to in subsection 14(1) of the Act shall not include, or be changed under section 22 of the Act to include, employees who perform construction work outside the geographic jurisdiction of the predecessor employer unless the successor employer agrees.
Despite Sections 15 and 24 of the Act, a collective agreement that bound the predecessor employer immediately before the changeover date does not bind the successor employer with respect to construction work performed outside the geographic jurisdiction of the predecessor employer unless the successor employer agrees.
15Thus, pursuant to para. 2 of s. 1(1) of the Regulation, the applicant would be bound by the collective agreement of the Windsor Board only with respect to those employees within the jurisdiction of the City of Windsor but not outside it.
16The P.S.L.R.T.A. also contains a provision specifying what is to happen in the event of a conflict between it and any other statute. That provision reads as follows:
39(1) In the event of a conflict or inconsistency between this Act or a regulation made under this Act and any other Act, this Act or the regulation prevails. [page609]
The situation after the passage of the P.S.L.R.T.A.
17After the passage of the P.S.L.R.T.A., the applicant negotiated a new collective agreement with the five respondent Unions. It was a single collective agreement between the applicant and a council composed of representatives from the five respondent Unions. Pursuant to that agreement, the applicant agreed that members of the respondents Unions would do all labour work on the current and new properties within the geographic jurisdiction of the former Windsor Board, except for certain specified preventative maintenance work. The applicant also agreed that any work that was contracted out in the geographic jurisdiction of the former Windsor Board required that the bidder be bound to the relevant collective agreement, depending on the nature of the work.
18After January 1, 1998, the applicant employed members of some, but not all, of the respondent Unions to perform work for it, but only in schools within the geographic jurisdiction of the former Windsor Board. It did not hire any employees to perform work in the geographic jurisdiction of the former Essex County Board.
19The applicant also contracted out work. If the work that was contracted out was performed in schools located in the geographic jurisdiction of the former Windsor Board, there was a requirement that the bidder be bound to the relevant collective agreement. The contracts that were contracted out for schools located in the geographic jurisdiction of the former Essex County Board did not have that requirement. Work went to the lowest capable bidder. The Board had evidence as to what work was contracted out in the geographic jurisdiction of the former Essex County Board. They had no evidence before them as to whether or not the successful bidder(s) was or were bound to any collective agreement(s). [See Note 8 below]
20In late 2004, the applicant contracted out work at two schools located in the geographic jurisdiction of the former Essex County Board that involved work that two of the respondent Unions alleged was construction work in the construction industry. As a consequence, the two Unions filed grievances that were referred to the Board in December of 2004.
The Unions' applications before the Board
21In August and December of 2004, several construction trade unions initiated applications before the Board. In each application, the Union sought to have the applicant declared to be one employer with the former Windsor Board pursuant to [page610] s. 1(4) of the Act or, alternatively, they sought a declaration that the applicant was a successor to the former Windsor Board for the purposes of s. 69 of the Act.
22Under s. 1(4) of the Act, the Board may declare that two or more entities should be treated as a single employer where, "in the opinion of the board", they carry on related or associated business activities -- whether or not simultaneously -- under common control or direction. Under s. 69 of the Act, successor rights are triggered when a "business" or even part of a business is sold or transferred in any way.
23In the proceedings before the Board, the applicant raised a preliminary objection to the respondent Unions' applications. They argued that these applications were precluded by the P.S.L.R.T.A. and the Regulation and therefore the Board should not hear either application. On January 18, 2005, the Board decided that the respondent Unions' applications should be referred for a full hearing.
24On January 4, 2006, after a full hearing and argument, the Board issued a decision whereby it dismissed the respondent Unions' application to have the applicant declared the successor to the Windsor Board under s. 69 of the Act. It did so having regard to s. 13 of the P.S.L.R.T.A., which provides that s. 69 of the Act does not apply to the restructuring of school boards. However, the Board granted the respondent Unions' application under s. 1(4) of the Act and declared that the Windsor Board and the applicant were one employer for the purposes of the Act. Further, they made the declaration effective as of January 1, 1998.
25As a result of this decision the applicant was bound by the provincial collective agreements as of January 1, 1998. Therefore, the geographic scope of those agreements was not limited to the geographic jurisdiction of the former Windsor Board, but applied province-wide.
26The applicant then applied to the Board asking it to reconsider its decision. On January 26, 2006, the Board declined to reconsider its decision of January 4, 2006.
27While the application for judicial review is with respect to all three of the Board's decisions, it is the decision of January 4, 2006 that resulted in the granting of the relief that affected the relationship between the applicant and the respondent Unions.
The Applicable Standard of Review
The Test -- Overview
28The standard of review to be applied to an administrative tribunal's decision -- correctness, unreasonableness or patent unreasonableness -- is determined using a "pragmatic and functional" [page611] approach that considers a variety of factors. These factors include the presence or absence of a privative clause or statutory right of appeal, the expertise of the tribunal relative to that of a reviewing court on the issue in question, the purpose of the legislation and the provision in particular, and the nature of the question -- law, fact, mixed law and fact. It is not possible to reduce the weight to be given to each of the various factors comprising a "pragmatic and functional analysis" to a single legal rule. [See Note 9 below]
The presence or absence of privative clause or statutory right of appeal
29In making its decision, the Board was interpreting the provisions of two labour relation statutes, the P.S.L.R.T.A. and the Act. Pursuant to s. 37(1) of the P.S.L.R.T.A., the privative clauses set out at ss. 114 and 116 of the Act "apply, with necessary modification, with respect to anything the Board does under this Act".
30Sections 114 and 116 of the Act provide as follows:
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.
(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.
(3) Where the Board has authorized the chair or a vice- chair to make an inquiry under clause 111 (2) (j), his or her findings and conclusions on facts are final and conclusive for all purposes, but nevertheless he or she may, if he or she considers it advisable to do so, reconsider his or her findings and conclusions on facts and vary or revoke any such finding or conclusion.
- 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, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings. [page612]
31Thus, pursuant to s. 114 of the Act, the Board has exclusive jurisdiction to determine all questions of fact or law that come before it and its decisions are "final and conclusive for all purposes". In Dr. Q., McLachlin C.J.C. stated:
The stronger a privative clause, the more deference is generally due. [See Note 10 below]
Section 116 is comparable to the privative clause considered by the Ontario Court of Appeal in Ontario Public Service Employees Union v. Seneca College of Applied Arts and Technology, a clause that the Court found to be a "very strong privative clause" that "attracts significant deference". [See Note 11 below] Thus, a consideration of the first factor weighs in favour of deference.
Expertise
32This factor requires the reviewing court to consider the expertise of the administrative body under review in comparison to that of the court doing the reviewing. The courts have repeatedly affirmed the expertise of labour tribunals and, in particular, labour relations boards, on questions of interpretation of labour relations legislation. Because tribunals such as the Board work with and make determinations under the legislation on a regular basis, they have been found to have developed special expertise that is adapted to the specific context of labour relations and that is not shared by the courts. [See Note 12 below]
33The Supreme Court of Canada has described labour relations boards as an administrative body of "high calibre". Their competence has been characterized as follows:
The Labour Board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada and its labour relations sense from accumulated experience in that area. [See Note 13 below] [page613]
34The Ontario Court of Appeal recently confirmed the deference to be accorded to administrative tribunals when they are interpreting statutes that are linked to their mandate and that they encounter frequently. As articulated by Laskin J.A. in O.P.S.E.U. v. Seneca College:
If the statute is linked to a board of arbitration's mandate, and frequently encountered by it, then its interpretation and application of the statute warrants deference from a reviewing court. [See Note 14 below]
Again, a consideration of the second factor weighs in favour of deference.
The purpose of the legislation and the provisions in question
35The purposes of the Act as a whole are expressed in s. 2 of the Act. They include facilitating collective bargaining, recognizing the importance of workplace parties adapting to change, promoting flexibility, productivity and employee involvement in the workplace, encouraging cooperative participation of employers and trade unions in resolving workplace issues and promoting expeditious resolution of workplace disputes.
36The purpose of the P.S.L.R.T.A. [s. 1] includes facilitating the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations, facilitating collective bargaining between employers and trade unions following restructuring and fostering prompt resolution of workplace disputes arising from restructuring.
37Thus, one of the purposes of both the Act and the P.S.L.R.T.A. is to promote the prompt resolution of disputes between employers and unions, including the prompt resolution of disputes arising from restructuring. To this end, the legislature placed the resolution of those disputes in the hands of a specialized tribunal, the Board. The integrity of that process can only be maintained if the courts give significant deference to the decisions of the Board.
38The purpose of s. 1(4) of the Act is to protect the bargaining rights of a trade union from being undermined by a change in the structure of an employer. The section, by its terms, provides the Board with a wide range of discretion at three points. First, the Board must decide whether "in the opinion of the Board" associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, [page614] under common control or direction. Second, if the Board makes such a finding, the Board is given discretion as to whether or not to treat the entities concerned as one employer for the purposes of the Act. Third, the Board is given discretion to grant whatever relief it "may deem appropriate".
39The significant discretion given to the Board by the legislature in s. 1(4) reinforces the need for deference. It signals the legislature's decision that it is the Board who has the expertise to do the balancing required in making a decision under s. 1(4).
The nature of the question
40In coming to its determination, the Board was required to address two preliminary questions:
(1) Whether the provisions of the P.S.L.R.T.A. precluded it from exercising its authority under s. 69 of the Act.
(2) Whether the provisions of the P.S.L.R.T.A. precluded it from exercising its authority under s. 1(4) of the Act.
These questions were both questions of law.
41Once the Board answered the second question in the affirmative, it was then required to make a determination involving questions of mixed fact and law as to whether, and how, to exercise its discretion under s. 1(4) of the Act.
42The applicant argued that when it came to the questions of law alone, the expertise of the court was as great as that of the Board, particularly since the questions involved the interpretation of a statute other than the Act.
43The questions of law concern the interplay between two labour relations statutes. Both are statutes that the Board, unlike the courts, deal with frequently. Both concern matters that are directly within the Board's mandate and expertise. In these situations, the courts have held that considerable deference should be paid to the tribunal's decision.
44This principle was recently canvassed and reinforced by the Ontario Court of Appeal in National Automobile, Aerospace Transportation and General Workers Union of Canada (C.A.W.-Canada) Local No. 27 v. London Machinery Inc. [See Note 15 below] In that case the court was reviewing the decision of an arbitrator in which he was required to interpret both the collective agreement between the parties and certain provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41, and its regulation. In finding that [page615] patent unreasonableness was the proper standard of review Cronk J.A. stated:
The arbitrator's decision in this case concerned the interpretation of the collective agreement between the parties and various provisions of the Act and the Regulation. The legislation in issue lies at the core of the work of labour arbitrators in the employment law sector. It is both centrally related to their expertise and intimately connected to their mandate. Moreover, the interpretive issues in play here have important implications in the labour relations and employment law domains. They arise in the context of a powerful, although not full, privative clause under the L.R.A. and employment standards legislation that itself invites strong deference to the arbitral process. These factors militate in favour of a high degree of deference to the arbitrator's award.
These comments are equally applicable to the case at bar.
Conclusion re standard of review
45All four contextual factors point to this court according a high degree of deference to the Board's decisions. Therefore, the appropriate standard of review to apply is that of patent unreasonableness.
What Constitutes Patent Unreasonableness?
46What constitutes a patently unreasonable decision was considered by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada [See Note 16 below] as follows:
It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "not having the faculty of reason, irrational, not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
47In Canadian Assn. of Industrial, Mechanical & Allied Workers, Local 14 v. Paccar of Canada Ltd., [See Note 17 below] La Forest J. (Dickson C.J.C. concurring) laid out the strict test of review at p. 1003 S.C.R., p. 453 D.L.R.: [page616]
Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function...
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.
48In the Supreme Court of Canada decision in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [See Note 18 below] the court said that:
. . . A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd . . .
49In the decision in London Machinery, [See Note 19 below] Cronk J.A. gave, as one of three reasons for the finding of patent unreasonableness, the following:
Third, the arbitrator's analysis offends well-established principles of statutory interpretation. Those principles require that, to the extent possible, statutory provisions be interpreted harmoniously so as to avoid absurd results, including those that would defeat the purpose of the statutory scheme in issue. Moreover, an interpretation of a statutory scheme that renders part of a statute pointless, redundant or incapable of application is to be avoided. See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths Canada Ltd., 2002) at pp. 243-57 and Rizzo at para. 27.
50Laskin, J.A. concurring, said as follows: [See Note 20 below]
Thus, I conclude that the arbitrator's reasoning and the dismissal of McCleary's grievance are patently unreasonable, because they defeat the purpose of the election in s. 67 and render that election meaningless. Put differently, the arbitrator's decision is patently unreasonable because at its core, it fails to recognize that termination under the [Employment Standards Act] and termination under the collective agreement are quite distinct. An employee may be entitled to statutory termination pay at 35 weeks while still enjoying rights, including recall rights, under the collective agreement. Section 67 legislates their co- existence. The arbitrator's decision obliterates it.
51In the Seneca College decision, [See Note 21 below] Laskin J.A. said as follows:
The Supreme Court of Canada has used a variety of adjectives and adverbs to describe a patently unreasonable decision. Many of these are summarized in Toronto (City) Board of Education v. O.S.S.T.F., District 15, supra, at paras. 41-46. [page617] See also 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 pp. 963-64 S.C.R. The phrases "clearly irrational" or "evidently not in accordance with reason" best describe this highly deferential standard of review. A reviewing court should not interfere with a tribunal's decision unless that decision is "clearly irrational".
Were the Board's Decisions Patently Unreasonable?
The position of the applicant
52The applicant's submission is that the Board's decisions were patently unreasonable for the following reasons:
(1) The Board's decision that, in spite of the P.S.L.R.T.A., it did have authority to exercise its discretion under s. 1(4) of the Act, and refuse to limit the geographic scope of the Unions' provincial agreements to the City of Windsor, was patently unreasonable in that it ran contrary to what the applicant asserts is the clear and sole purpose of the Regulation. As put by the applicant in their factum:
It is beyond dispute that the Legislature which passed the P.S.L.R.T.A. and the Regulation (the same Ministry as the Ministry which is responsible for the Act, namely the Ministry of Labour) was aware of the province-wide scope of the bargaining rights held by the respondent Unions with respect to the predecessor employer (the "Windsor Board"). It is submitted that it is precisely that situation and the bargaining rights which the Regulation is designed to limit geographically. Otherwise the Regulation is absolutely meaningless.
Furthermore, the applicant argues that if there is a conflict between s. 1(4) of the Act and the Regulation, s. 39 of the P.S.L.R.T.A. is clear -- it is the Regulation that governs.
(2) The applicant submits that the Board's decision to exercise its discretion under s. 1(4) of the Act is patently unreasonable because:
(a) a school board is not a "business" or other entity within the meaning of s. 1(4);
(b) there were not "two or more entities" as required by s. 1(4) since, upon the creation of the applicant, the Windsor Board ceased to exist;
(c) the applicant and the Windsor Board were not under common control and direction since when the Windsor Board did exist it was governed by an elected Board of Trustees that was different from the elected Board of Trustees that governs the applicant; and [page618]
(d) the Board's decision to grant relief under s. 1(4) ran contrary to its own established jurisprudence regarding the exercise of its discretion under s. 1(4) of the Act. According to the applicant,
The OLRB has consistently declined to grant relief (having exercised its jurisdiction on this basis) in the absence of a significant labour relations purpose for doing so (e.g. erosion of bargaining rights) and, further, has consistently refused to grant relief where a declaration would expand bargaining rights.
(3) Finally, the applicant submits that the Board's decision to declare the applicant and the Windsor Board to be one employer for all purposes of the Act effective as of January 1, 1998 is patently unreasonable given that the various applications that gave rise to that declaration were not filed with the Board until August and December of 2004.
The Board's decisions
1. The decision that the Regulation and section 39 of the P.S.L.R.T.A. did not preclude the Board from exercising its discretion under section 1(4) of the Act
53The Board's reasoning on this issue is contained in both its decision of January 18, 2005 and its decision of January 4, 2006. That reasoning can be summarized as follows.
54First, the Board dealt with the Unions' submission that to the extent the Regulation directly affected the Act, it was beyond the competence of the Lieutenant Governor in Council. As summarized by the Board, the essence of this submission was "The will of the Legislature is expressed in statutes and is supreme. It cannot be undermined or contradicted by executive regulation." [See Note 22 below] The Board accepted that "as an abstract principle, this seems fairly straightforward". [See Note 23 below] However, it did not go on to deal with this argument as it found that the Regulation did not purport to directly affect anything in the Act. The Board found that the provisions of the Regulation could be reconciled with the continuation of the Board's ability to exercise its jurisdiction under s. 1(4) of the Act.
55In this regard, the Board made a distinction between s. 69 and s. 1(4) of the Act. In s. 13 of the P.S.L.R.T.A. the Legislature specifically states that s. 69 of the Act does not apply [page619] when a district school board assumes the jurisdiction of two or more old boards.
56As already indicated, s. 69 is the provision of the Act that deals with "successor employer" applications and what happens to the bargaining rights of a union when the employer with whom they have a collective agreement is sold or disposed of in any way. Section 69 reads as follows:
69(1) In this section,
"business" includes a part or parts thereof; ("entereprise")
"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")
(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.
(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 16 or 59, as the case requires.
(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,
(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or
(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold, [page620]
the Board may, upon the application of any person, trade union or council of trade unions concerned,
(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and
(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.
(5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer.
(6) Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,
(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);
(b) determine whether the employees concerned constitute one or more appropriate bargaining units;
(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and
(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.
(7) Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 14.
(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.
(9) Where an application is made under this section, an employer is not required, despite the fact that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade [page621] unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application.
(10) For the purposes of section 7, 63, 65, 67 and 132, a notice given by a trade union or council of trade unions under subsection (3) or a declaration made by the Board under subsection (6) has the same effect as a certification under section 10.
(11) Where one or more municipalities as defined in the Municipal Affairs Act are erected into another municipality, or two or more such municipalities are amalgamated, united or otherwise joined together, or all or part of one such municipality is annexed, attached or added to another such municipality, the employees of the municipalities concerned shall be deemed to have been intermingled, and,
(a) the Board may exercise the like powers as it may exercise under subsections (6) and (8) with respect to the sale of a business under this section;
(b) the new or enlarged municipality has the like rights and obligations as a person to whom a business is sold under this section and who intermingles the employees of two of the person's businesses; and
(c) any trade union or council of trade unions concerned has the like rights and obligations as it would have in the case of the intermingling of employees in two or more businesses under this section.
(12) Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one employer to another, the Board shall determine the question and its decision is final and conclusive for the purposes of this Act.
(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
57Under the P.S.L.R.T.A. the legislature set up a separate scheme for determining successor rights and, in doing so, made it clear that the scheme set out in s. 69 of the Act did not apply. As put by the Board at para. 16 of its decision of January 18, 2005:
Thus, for the purposes of the P.S.L.R.T.A., the Greater Essex Board is a "successor" to the Windsor Board. Pursuant to Section 14, the Union continues to represent the "like bargaining unit", and the provincial collective agreement continues to apply. To the extent that the Unions rely on the P.S.L.R.T.A. as the source of their bargaining relationship with the Greater Essex Board, that relationship is circumscribed by the limitations contained in the P.S.L.R.T.A. and regulations thereunder, in this case geographic.
58However, under the Act, the Board also has jurisdiction to rule on bargaining rights pursuant to s. 1(4) of the Act if there are two or more entities that carry on related activities whether [page622] or not simultaneously, under common control or direction. Section 1(4) provides:
1(4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
59Unlike s. 69, s. 1(4) of the Act is not referred to in the P.S.L.R.T.A. As pointed out by the Board, while ss. 69 and 1(4) of the Act may often apply to the same fact situations, the respective scope of the provisions is not identical. In making this point, the Board cites its decision in Harley Transport Limited, [See Note 24 below] where it said as follows:
- . . . with the amendment of section 1(4) in 1975, it became possible that both section 63 [the predecessor of s. 69] and section 1(4) could be applicable to the same fact situation. The variety of transactions and business arrangements which have been found to be a "sale" within the meaning of section 63 could also entail a sufficient retention of ongoing control over the business activities to bring into play section 1(4). We note in passing that even prior to section 1(4) being amended to apply to serial or sequential control or ownership, the Board had found section 63 and section 1(4) to be simultaneously applicable to the same fact situation. It is fair to say that both sections can only have simultaneous application if all or part of a "business" is involved. Where a partial change has occurred in the ownership or control of an operation, the Board has generally applied section 63 where there is proof that a "severable, coherent and independent" operation or part of a going concern has been transferred or that a "discrete, cohesive portion of the economic organization or activities" which comprise the totality of the business has been severed or transferred. Where the partial change does not satisfy the requirements of section 63, section 1(4) may still apply if there is sufficient retention of control over the core functions of an operation.
(Cites omitted)
60Thus, under the Act, the focus of s. 1(4) as opposed to s. 69, is on "the retention of control over the core functions of an operation". As noted by the Board, there are situations where s. 69 would not apply and s. 1(4) would.
61The question before the Board was whether by virtue of the P.S.L.R.T.A. and particularly the Regulation, the legislature had removed or replaced the powers of the Board under s. 1(4) of the Act. In coming to the conclusion that they had not, the Board found: [page623]
(1) That neither the P.S.L.R.T.A. nor the Regulation make any reference to s. 1(4).
(2) That while s. 39 of the Act contemplates that the Lieutenant Governor in Council has the power to pass regulations that "override the will of the Legislature" as expressed in another statute, ss. 40(1)(c) and 40(3) of the P.S.L.R.T.A., the sections that actually govern the regulation-making power under the P.S.L.R.T.A., limit:
the effect of such regulations to the operation of the P.S.L.R.T.A.. That is, nothing in the regulations promulgated under the authority of section 40 can apply to vary or contradict another statute. Section 40 simply does not give the Lieutenant Governor in Council the power to promulgate such a regulation. [See Note 25 below]
62The Board's decision of January 18, 2005 also deals with this point as follows:
. . . the Regulation in this case does not purport to affect directly anything in the L.R.A.[the Labour Relations Act]. It is promulgated under a section of the P.S.L.R.T.A., Section 40, by which the Legislature delegated authority to the Lieutenant Governor in Council to make regulations about "how this Act applies with respect to employees of a predecessor employer who performed construction work". It does that. On its face, it says nothing about the L.R.A.. Despite Section 39(1) and its "regulations", the Regulation is promulgated under Section 40(1) and 40(3), all of which refer only to this "Act" (i.e. the P.S.L.R.T.A.). [See Note 26 below]
63The Board did comment on the question of why the legislature chose not to refer to s. 1(4) of the Act in the P.S.L.R.T.A. It did so as follows:
It is indeed odd that the P.S.L.R.T.A. carefully excludes the effect of Section 69 of the Act, but makes no reference to subsection 1(4). The reasons for that are purely matters of speculation on my part. However, when deciding whether or not to exercise a discretion under subsection 1(4) of the Labour Relations Act, 1995, the Board must do so with respect to factors which are relevant to the aims and objectives of the Labour Relations Act, 1995, rather than to some other statute which by its very terms does not apply to or vary subsection 1(4) of the Act. It would be entirely inappropriate for me to speculate about why there is no reference to subsection 1(4) in the P.S.L.R.T.A.. Perhaps the draftsperson overlooked that issue. Perhaps the draftsperson was perfectly aware of the Board's jurisprudence with respect to subsection 1(4) (indeed, that is a proper assumption to make in interpreting a statute): see Sullivan and Dreiger on The Construction of Statues (4th ed.), (Butterworths Toronto: 2002) at pp 154-5 and 2747-3174 Québec Inc. v. Québec 1996 153 (SCC), [1996] 3 S.C.R. 919. To speculate on, and to give weight to, my guess as to certain policy directives under the P.S.L.R.T.A. not contained in the statute [page624] would be an improper exercise of a discretion, which is confined exclusively to the operation of the Labour Relations Act, 1995. Policy initiatives on the part of the Legislature are expressed in statute, and it is not appropriate for the Board to substitute its belief about what the Legislature might have intended had it addressed the issue before it (assuming, of course, that it did not do so). [See Note 27 below]
64The applicant contends that there is conflict or inconsistency between s. 40 of the P.S.L.R.T.A. as qualified by the Regulation and s. 1(4) of the Act, such that s. 39(1) of the P.S.L.R.T.A. applies with the result that the declaration made by the Board pursuant to s. 1(4) of the Act should be quashed.
65The basis for the position taken by the applicant is as follows.
66In para. 53 of its decision dated January 4, 2006, the Board granted a declaration that the Windsor Board and the applicant are one employer for all purposes of the Act. Accordingly, under the Act, by reason of s. 1(4) and the decision of the Board dated January 4, 2006, the applicant is bound by the province-wide collective agreements of the Windsor Board, but without the geographic restriction that is effective under the P.S.L.R.T.A.
67Since the P.S.L.R.T.A. on the one hand, applies so as to bind the applicant to the collective agreements only on a geographically restricted basis and the Act, on the other hand, applies so as to bind the applicant to the collective agreements without that geographic restriction, there is a prima facie "conflict or inconsistency" between the P.S.L.R.T.A. and the Act in this regard, within the meaning of s. 39 of the P.S.L.R.T.A. In simple terms, the P.S.L.R.T.A. expressly permits the applicant to do what the declaration under s. 1(4) of the Act prevents the applicant from doing. Unless there are proper reasons to the contrary, the result under s. 39 would be that the manner in which the P.S.L.R.T.A. applies must prevail over the different and conflicting manner in which the Act applies.
68It was submitted for the respondent Unions that there is no "contradiction" between the P.S.L.R.T.A. and the Act because all that the P.S.L.R.T.A. does is to put in place a regime for "successor rights" in substitution for s. 69 of the Act, while the Board's decision of January 4, 2006 was made under the "related employer" provision in s. 1(4) of the Act. However, the result of the P.S.L.R.T.A. and the Regulation, on the one hand, and the application of s. 1(4) of the Act, on the other hand, is the conflict or inconsistency identified above. [page625]
69The Board said in para. 46 of its decision of January 4, 2006 that it was not obvious that there is conflict between the Regulation and the provision in ss. 162 and 163 of the Act relating to provincial collective agreements. Whether this statement is to be taken as denying the existence of the conflict asserted by the applicant is not clear. The decision of the Board does not otherwise directly deal with whether the alleged conflict is a real conflict for purposes of s. 39(1) of the P.S.L.R.T.A.
70However, it is evident that the Board considered s. 1(4) of the Act and the relevant P.S.L.R.T.A. provisions which replace s. 69 of the Act, to be dealing with two different matters, as discussed above in these reasons: "continuity of control", in the case of s. 1(4) of the Act and "sale" of a "business" in the case of the P.S.L.R.T.A.
71Taking this difference into account, it could be argued that while the results that flow from the application of s. 1(4) and those flowing from the P.S.L.R.T.A. are different and apparently incompatible, that does not constitute a "conflict or inconsistency" for purposes of s. 39(1) of the P.S.L.R.T.A. because the different results flow from provisions directed to different circumstances and not from provisions which are in conflict with each other in respect of their terms. Put simply, there may be a conflict in results, but there is no conflict in terms, and therefore s. 39(1) has no application. This distinction might be contended to be incorrect, but no basis is evident for regarding it as patently unreasonable.
72In coming to the decision it did, the Board sought to find an interpretation that avoided a conflict between the Regulation and s. 1(4) of the Act. In doing so, it strictly and narrowly construed the effect of the Regulation and of s. 39(1) of the P.S.L.R.T.A.
73Section 39(1) of the P.S.L.R.T.A. and others like it where the legislature delegates to the Executive the discretionary power to overrule by regulation the provisions of an enabling statute or another statute have been dubbed "Henry VIII clauses", allegedly named "in disrespectful commemoration of that monarch's tendency to absolution (sic)". [See Note 28 below]
74Henry VIII clauses have been the subject of controversy and comment, both in Canada and in England. The comments by A. Campbell J. in Ontario Public School Boards' Assn. v. Ontario (Attorney General) [See Note 29 below] represent a forceful articulation of [page626] the constitutional concern they raise. In that case, Campbell J. dealt with a provision of the Fewer School Boards Act, 1997, [See Note 30 below] passed at the same time as the P.S.L.R.T.A., whose wording mirrors that of s. 39(1). In doing so, he first observed that:
This is the opposite of the usual rule, that if there is any conflict between the statute and the regulation which relies for its authority on the statute, the statute enacted by the Legislative Assembly prevails over the regulation made by the government. The usual rule is that legislative power is vested in the democratically elected Legislature to make laws after full public debate. This provision reverses that rule. [See Note 31 below]
Campbell J. then went on to articulate the following concern:
This power is constitutionally suspect because it confers upon the government the unprotected authority to pull itself up by its own legal bootstraps and override arbitrarily, with no further advice from the Legislative Assembly, and no right to be heard by those who may be adversely affected by the change, the very legislative instrument from which the government derives its original legal authority. [See Note 32 below]
75According to Campbell J., this power was never used by the Ontario legislature until the early 1990s. Until that time, it had been considered by the government "and successive generations of Crown law officers to be repugnant to our basic traditions of public accountability". [See Note 33 below]
76In the words of Campbell J., "however offensive" this power may be "to our traditional sense of legality and public accountability", [See Note 34 below] the constitutional capacity of legislative bodies to confer the power has been upheld by the Supreme Court of Canada in Re Gray ("Grey"). [See Note 35 below] In Re Gray, the Supreme Court of Canada was dealing with the constitutional validity of a section of the War Measures Act, 1914, S.C. 1914, c. 2, that provided that Cabinet would have the power to do what was necessary or advisable by regulation or order, "for the security, defence, peace, order and welfare of Canada" by reason of the "existence of real or apprehended war . . .". With two judges dissenting on the basis that such a "wholesale surrender of the will of the people to any autocratic power is exactly what we are [page627] fighting against", [See Note 36 below] the majority of the court upheld the constitutional validity of this broad delegation of authority by the legislative branch of government to the executive.
77In Re Gray, Mr. Grey had, pursuant to the Military Service Act, 1917, S.C. 1917, c. 19, been granted exemption from military service. In April of 1918, the Governor-in- Council passed a regulation canceling Mr. Grey's exemption. The Regulation was passed pursuant to the broad powers granted to Cabinet under the War Measures Act, 1914. The regulations were put before Parliament for approval.
78The majority of the court in Re Gray considered and dismissed the submission that the power to make regulations cannot
constitutionally be granted to such an extent as to enable the express provisions of a statute to be amended or repealed; that under the constitution parliament alone is to make laws, the Governor-in-council to execute them, and the court to interpret them; that it follows that no one of these fundamental branches of government can constitutionally either delegate or accept the function of any other branch. [See Note 37 below]
79A review of the reasoning in Re Gray makes it clear that the fact that the country was at war was at the forefront of the court's mind when it considered the question before them. In the words of Justice Anglin:
Again, it is contended that should section 6 of the War Measures Act be construed as urged by counsel for the Crown, the powers conferred by it are so wide that they involve serious danger to our parliamentary institutions. With such a matter of policy we are not concerned. The exercise of legislative functions such as those here in question by the Governor-in-Council rather than by Parliament is no doubt something to be avoided as far as possible. But we are all living in extraordinary times which necessitate the taking of extraordinary measures. [See Note 38 below]
80As Justice Campbell noted:
It is one thing to confer this extraordinary power if it is actually needed for some urgent and immediate action to protect an explicitly identified public interest. It is quite another thing to hand it out with the daily rations of government power, unlimited as to any explicit legal purpose for which it may be exercised. [See Note 39 below]
81Re Gray was recently discussed by the Ontario Court of Appeal in R. v. P. (J.). [See Note 40 below] In that case the court was not dealing [page628] with a Henry VIII clause. Rather, the question was whether the executive could, by regulation, limit or provide an exemption for the crime of possession of marijuana set out in s. 4 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("C.D.S.A."). In holding that they could, the Court of Appeal noted that s. 55(1) of the C.D.S.A. specifically provides that the Governor-in-Council could make regulations "governing, controlling, limiting, authorizing . . . possession or obtaining of or other dealing in any controlled substance". In dealing with the question before them the court relied on Re Gray in support of the principle that while Parliament cannot
abdicate its functions, it can, within reasonable limits, delegate its powers to the executive. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured. [See Note 41 below]
In R. v. P. (J.), the enabling legislation clearly delegated the impugned power to the executive.
82In Brantford (City) Public Utilities Commission v. Brantford (City), [See Note 42 below] Kent J. dealt with a Henry VIII situation and upheld a regulation that conflicted with a statutory provision. Specifically, the Public Utilities Act, R.S.O. 1990, c. P. 52 permitted a municipality to create or dissolve a Public Utilities Commission. The provincial government then amended the Municipal Act, 2001, S.O. 2001, c. 25 and in that Act provided that "despite any Act" the Minister of Municipal Affairs could make regulations, including a regulation providing that a municipality did not have the power to dissolve a local board specified in the regulation. The Minister then passed a regulation specifying that a municipality did not have the power to dissolve certain local boards, one of which was a Public Utility Commission established under the Public Utilities Act or any other Act which is responsible for the distribution and supply of electric power or energy. Pursuant to the Public Utilities Act, the City of Brantford's municipal council approved a resolution that the City would dissolve the existing Public Utilities Commission to create an appointed Hydro-Electric Commission pursuant to the Power Corporation Act, R.S.O. 1990, c. P.18. The Public Utilities Commission moved for an injunction and a declaration that the City did not have the jurisdiction to dissolve them, given the provisions of the [page629] Municipal Act and the regulations made thereunder. Kent J. granted the relief sought, finding that the regulation and its enabling legislation "were created with the intention of effectively repealing the prior existing statute". In that case the enabling legislation specifically addressed the fact that the Minister could make regulations prohibiting a municipality from dissolving a local board.
83Unlike in R. v. P. (J.) and Brantford, there is no clear delegation in the enabling legislation at issue in this case (P.S.L.R.T.A.), that the Minister may make regulations removing the power of the Board to grant a sole employer declaration pursuant to the provisions of s. 1(4) of the Act. The question then becomes whether the Board was patently unreasonable when it failed to interpret s. 39(1) broadly enough to imply such a delegation.
84In Britnell v. Secretary of State for Social Security, [See Note 43 below] Lord Keith of Kinkel, who wrote the reasons that the other members of the House of Lords agreed with, endorsed a previous judicial pronouncement that "a power to modify the provisions of a statute should be narrowly and strictly construed". [See Note 44 below]
85In Thoburn v. Sunderland City Council, [See Note 45 below] the High Court of Justice, Queen's Bench Division, Divisional Court considered the use of a Henry VIII clause in the European Communities Act, 1972, a law that was passed in Britain to give effect domestically to the policies of the European Union. Lord Justice Laws, who wrote the opinion that the other judges concurred with, found that Parliament could delegate the power to amend primary legislation. However, he also acknowledged and did not disagree with the jurisprudence concerning the narrow construction to be given to such clauses. In doing so, he referred to the decision in Orange Personal Communications Ltd. [See Note 46 below] where Sullivan J. stated at p. 177 Eu. L.R.:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinized, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach. [page630]
86In Friends of the Oldman River Society v. Canada (Minister of Transport), [See Note 47 below] LaForest J. reviewed the principles of law applicable to the interpretation of an apparent conflict between a statute and subordinate legislation. Unless a statute authorizes it, subordinate legislation cannot conflict with either parent legislation or other acts of Parliament. Where subordinate legislation is said to be inconsistent with another act of Parliament, "there is a presumption that the legislature did not intend to make or empower the making of contradictory enactments". [See Note 48 below] Thus, where possible, a court is to prefer an interpretation that avoids a finding of conflict.
87While not determinative of the issue before the Board, the principles that emerge from these cases are useful in assessing whether the Board's conclusion regarding the alleged conflict between the Regulation and s. 1(4) of the Act was a patently unreasonable one. Section 39(1) of the P.S.L.R.T.A. is a broad and open-ended clause. It is also not a clause that delegates the authority to make regulations. That power is contained in s. 40. In these circumstances the Board chose an interpretation that focused on the express power delegated in s. 40 and arrived at a conclusion that avoided a finding of conflict between the Regulation and s. 1(4) of the Act. In doing so, it narrowly restricted the power of subordinate legislation passed under the P.S.L.R.T.A. to modify or repeal the provisions of the Act.
88The Board's decision cannot be said to defeat the purposes of the P.S.L.R.T.A. These purposes are set out in s. 1 which reads:
The following are the purposes of this Act:
To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.
To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.
To facilitate collective bargaining between employers and trade unions that are the freely- designated representatives of the employees following restructuring in the broader public sector in other specified circumstances.
To foster the prompt resolution of workplace disputes arising from restructuring.
89There is nothing in the above purposes that is inconsistent with the Board having discretion under s. 1(4) of the Act. Further, [page631] the Board's interpretation of the provisions of the P.S.L.R.T.A., the Regulation and their relationship cannot be said to render any of the provisions being dealt with meaningless. For example, if the majority of the trustees elected to the applicant's Board had been elected by electors from the geographic jurisdiction of the former Essex County Board, then, on the reasoning of the Board, pursuant to the provisions of the P.S.L.R.T.A. and the Regulation, the geographic scope of the collective agreement would have been limited to the City of Windsor. One of the necessary preconditions for the exercise of discretion under s. 1(4) of the Act (common control) would not have existed.
90The question this court has to ask itself is whether the Board's conclusion was "clearly irrational" or almost bordering "on the absurd". Applying this strict test, the applicant has failed to demonstrate that the necessary threshold has been met. The Board's approach to the problem and their restrictive interpretation of the effect of the Regulation might not be the correct one. However, it is not clearly irrational or almost absurd.
The Board's decision under section 1(4)
91Section 1(4) of the Act was enacted in 1971 and amended in 1975. As already indicated, it provides as follows:
1(4) Where, in the opinion of the Board, associated or related activities or business are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
92According to the Board, s. 1(4) sets out four preconditions to the exercise of the Board's discretion to make a single employer declaration:
(1) that there be two or more entities;
(2) that they carry on associated or related businesses or activities;
(3) whether or not simultaneously;
(4) under common direction or control.
93The Board found that each of these statutory preconditions were present in this case. [page632]
(1) They found that there were two or more entities, the Windsor Board and the Greater Essex Board (the applicant). In s. 1(4) entities are defined as "corporation, individual, firm, syndicate, or association or any combination thereof". While the Board acknowledged that "These words suggest a commercial enterprise, they are not so strictly limited, and the Board has applied it to virtually any employer, particularly those in the greater public sector." [See Note 49 below] The applicant challenged this finding as "simply untenable", arguing that the "Windsor Board and the applicant are school boards, statutorily created, statutorily governed and statutorily limited". While this is undoubtedly true, that does not mean that they are not also subject to the provisions of the Act. The applicant provided no authority to challenge the Board's finding that the Board has applied s. 1(4) to virtually any employer, particularly those in the greater public sector. Thus, there is no basis for this court to conclude that that finding was patently unreasonable.
(2) The Board found that the applicant and the Windsor Board carried on associated or related businesses or activities. "In fact, they carry on the same business that the Windsor Board carried on before January 1, 1998." [See Note 50 below] The applicant argued that this conclusion was also wrong. As put by the applicant, "Simply stated, the school boards are not businesses." Again, s. 1(4) uses the phrase "related businesses or activities" (emphasis added). Thus, while it may be arguable that the applicant and the Windsor Board did not carry on related "businesses", this does not mean that they did not carry on related "activities".
(3) The Board found that the section specifically provided that the two entities in question did not have to carry on their activities simultaneously. In doing so, they dealt with the same submission that the applicant made before this court on this finding as follows:
Counsel for the Greater Essex Board argued that while the activities need not be carried out simultaneously, the two entities must exist for at least some period of time contemporaneously. I do not accept that argument. It was precisely because the section was ineffective if one business was wound up before the other was started that the Act was amended in [page633] 1975 to include the phrase "whether or not simultaneously". Indeed, the Board has found that subsection 1(4) might, on the proper facts, apply to the relationship between corporations, some of which had been wound up and dissolved prior to the formation of the others. See Brie Construction Inc., [2002] O.L.R.B. Rep. Sept./Oct. 818. [See Note 51 below]
On the application for judicial review, the applicant provided no authority that would indicate that the Board's reasoning on this point was incorrect, let alone patently unreasonable.
(4) The Board also found that the Windsor Board and the Greater Essex Board were under common control and direction. There is no definition of "control or direction" in the Act. The applicant argued that this conclusion "was perverse to the evidence. The evidence was that, in fact, the Windsor Board, when it existed immediately prior to January 1, 1998, was governed by an elected Board of Trustees which was different than the elected Board of Trustees which governed the operations of the applicant upon its creation effective January 1, 1998."
As summarized by the Board, the evidence before it was that before January 1, 1998, the Windsor Board and the Essex Board were governed by elected trustees. After January 1, 1998, the applicant was governed by a board of ten trustees, six of whom were elected by the electors of the City of Windsor. [See Note 52 below] On the basis of this evidence the Board found as follows:
The commonality of the control or direction need not be entirely co-extensive. If one source of control has meaningful, if not exclusive, control over both of the entities, that level of control satisfies the requirements of the subsection. In this case, the ultimate control is with the electors of the City of Windsor. They elected all of the trustees of the Windsor Board and they elected the majority of the trustees of the Greater Essex Board. In this case, the ultimate source of control has, in fact, ultimate control over both bodies. [See Note 53 below]
This conclusion gives a very expansive meaning to control or direction but, given the evidence, it was not patently unreasonable.
94Once it determined that the four preconditions were satisfied, the Board went on to consider whether it should exercise its discretion under s. 1(4) to grant relief. While recognizing that a [page634] court is generally reluctant to intervene where the exercise of a tribunal's discretion is being reviewed, the applicant argued that, in this instance, the Board ignored its own established jurisprudence to such a degree as to amount to an abuse of its discretion.
95A review of the Board's jurisprudence on the issue of the criteria the Board used in determining whether to exercise its discretion under s. 1(4) reveals the following:
One of the significant purposes of s. 1(4) is to guard against the dilution, erosion or undermining of bargaining rights that have already been obtained. [See Note 54 below]
The Board has refused to exercise its discretion where it has determined that the Union is seeking to acquire bargaining rights in order to avoid the certification procedures of the Act.
The other criteria that the Board will consider are:
(a) whether a declaration will disturb existing bargaining rights;
(b) whether a declaration would interfere with the interests and rights of employees to select their own bargaining representative or to remain unrepresented; and
(c) whether the application has been made within a reasonable time after the applicant becomes or with reasonable diligence, should have become aware that the two or more entities were closely related. [See Note 55 below]
96With respect to these established criteria the applicant submits that there was no reason to issue the declaration requested as there was no risk of erosion of bargaining rights. The Unions had precisely what they had before January 1, 1998 and the creation of the applicant -- a collective agreement that covered the City of Windsor. In dealing with this submission the Board first pointed out that the argument "equated the legal rights and responsibilities under the collective agreement with its practical application". [See Note 56 below] In this case the Unions, by virtue of the Act have provincial [page635] collective agreements that are province-wide in scope. Before January 1, 1998, these agreements only affected construction work done in the City of Windsor because the employer with whom they had these agreements, the Windsor Board, only did construction work in the City of Windsor. If that employer had done construction work elsewhere, for example, by annexing an adjacent township so that the size of the geographic area served by that Board had changed, then the collective agreements would have applied to that expanded geographic area without the need for any application under the Act. As put by the Board:
The fact that this increase in the size of the area under the control of the Board of Education was (for reasons entirely unrelated to labour relations) effected by the creation of a new entity, is precisely the kind of fact situation to which subsection 1(4) applies. [See Note 57 below]
In making this statement the Board was referring to its jurisprudence that has established that a union's bargaining rights can be eroded when that union loses the opportunity to participate in the growth of particular enterprise. [See Note 58 below] As put by the Board, "the fact that the expansion was one properly effected under the Fewer School Boards Act and the P.S.L.R.T.A. does not change this analysis for the purpose of the Labour Relations Act, 1995". [See Note 59 below]
97The applicant also argues that issuing a declaration under s. 1(4) amounts to allowing the Unions to appropriate work opportunities that they had not earned by making an application for certification. When dealing with the same submission the Board stated:
The Board has often said that subsection 1(4) is concerned with the effect of changes in the structure of an employer, not with questions of propriety or morality in the manner in which a trade union seeks to utilize the Act to defend its bargaining rights. Both subsection 1(4) and an application for certification are ways of acquiring bargaining rights and neither is more appropriate nor statutorily superior to the other: see eg. KNK Ltd. [1991] O.L.R.B. Rep. Feb. 209; and E.S. Fox Ltd. [1991] O.L.R.B. Rep. July 819. There are no employees of the former Essex Board or the current Greater Essex Board who would be affected by the declaration. [See Note 60 below] [page636]
98Thus, this is not a case where the Board found that there were employees of an existing business who had an established business relationship without a union and who may not wish to be represented by a union. In these types of situations, the Board has refused to exercise its discretion under s. 1(4) because of a concern that the Union is seeking to use s. 1(4) to avoid the certification procedures under the Act. [See Note 61 below]
99Connected to this concern is the issue of delay. As articulated by the Board in Evans-Kennedy Construction Limited, [See Note 62 below] if an employer, based on an understanding of its rights, builds up a non-union workforce then, unless the union acts promptly to secure its bargaining rights, the Board may decline to apply s. 1(4) and indicate to the union that if it desires bargaining rights for the non-union employees it should seek to obtain them through the regular certification procedures.
100In this case, the applicant submits that the Unions, by waiting until 2004, had acquiesced in the applicant's belief that the P.S.L.R.T.A. confined the scope of the provincial collective agreements to the geographic boundaries of the former City of Windsor. When dealing with this submission, the Board found that there were no facts to support the position that before 2004 there was any situation in which the Greater Essex Board contracted out work to a contractor not bound to a collective agreement in the County of Essex of which the Unions knew or ought to have known. [See Note 63 below] Therefore, the Board found no basis to draw the inference that the Unions knew the applicant's point of view and let the applicant act upon it without doing anything.
101In support of their submission on acquiescence, the applicant also points to the collective agreements that the applicant negotiated with the Unions after January 1, 1998. Those agreements essentially confirmed that the members of the respondent Unions would do all labour work (except certain maintenance work) on the current and new properties within the geographic jurisdiction of the former Windsor Board. The applicant argues that these collective agreements provide evidence that the Unions had accepted the applicant's view as to the effect of the P.S.L.R.T.A. on the geographic scope of the provincial collective agreements.
102The Board heard and rejected this submission by the applicant. In doing so, it found that the collective agreements [page637] negotiated by the parties after January 1, 1998 did nothing more than acknowledge the provisions of the P.S.L.R.T.A. They did not address the construction provisions of the Act and they were not negotiated in accordance with the construction provisions of the Act. Further, the Board found that there was no evidence before it that the scope of the provincial agreements was ever discussed between the parties or that there was ever an occasion on which the Unions were asked or obliged to set forth their position. The Board also found that the evidence before it was that the Unions took action on the first occasion when there was evidence that the provincial collective agreements had been violated. Therefore, the Board concluded that there was nothing in the Unions' conduct that would cause it to refuse to exercise its discretion under s. 1(4).
103The last question the Board addressed was the issue of the date as of which the order should have effect. The Board made the declaration effective as of the date the applicant came into existence. In doing so, it acted in accordance with its own jurisprudence that provides that, absent a specific finding that this should not be the case, the wording of the statute is such that a declaration under s. 1(4) has effect from the date the associated or related activities commenced. [See Note 64 below] The applicant submits that the Unions' delay constituted a good reason why a specific finding should be made in this case that the declaration should be effective as of the date it was given. The Board disagreed and, for the reasons given when it chose to exercise its discretion and grant a declaration, found that "in this case I have no evidence of delay or any deliberate lulling of the Greater Essex Board into a belief that the Unions did not share their view of the effect of the P.S.L.R.T.A. or provincial collective agreements". [See Note 65 below]
104This review of the reasoning of the Board on the issue of whether it should exercise its discretion and make a declaration under s. 1(4) and on the issue of the effective date of that declaration does not demonstrate either that, in coming to the conclusion it did, the Board ignored its own established jurisprudence or, more significantly, that that conclusion was patently unreasonable, producing a result bordering on the absurd. Given this, there is no basis for a reviewing court to interfere with the Board's decision.
Conclusion
105For the above reasons, I would dismiss the application. Failing agreement on the question of costs, we may be spoken to. [page638]
106CARNWATH J. (dissenting): -- I agree with the material contained in the Overview and Factual Background in Sachs J.'s reasons. I agree that the standard of review is patently unreasonable. I agree with the analysis of patent unreasonableness. However, I regret I cannot agree with my colleagues' ultimate conclusion. With respect, I find the decision of the Board patently unreasonable.
107In the short reasons which follow, I hope to identify several points which the Board chose to ignore or failed, in my respectful view, to adequately explain away. Their cumulative effect compels me to conclude the decision is patently unreasonable.
The Purpose of the P.S.L.R.T.A.
108As Sachs J. has noted in para. 8 of her reasons, the purpose of the P.S.L.R.T.A. was:
[(1)] To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.
[(2)] To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.
109I point out that the effect of the Board's decision is to deny, not facilitate, collective bargaining in the geographical area of the former Essex Board. The construction employees of that geographical area cannot "freely designate" their trade unions. The right to bargain collectively is foreclosed by the Board's decision.
The Effect of the Board's Decision
110I submit it is clear the government recognized the implications of merging two school boards where one board was subject to a collective agreement applied province-wide, and the other was not. This explains the making of O. Reg. 457/97 (para. 14 in Sachs J.'s reasons). There is no other logical explanation for the action the government took in making the Regulation. The Board's decision ignores the obvious intention of the Act and Regulation and turns it on its head. What else explains the existence of the Regulation other than the intention to limit the province-wide bargaining rights to the geographical area of the City of Windsor following merger? [page639]
The Possibility of Conflict with other Statutes
111Recognizing the possibility that the transitional provisions of the P.S.L.R.T.A. might conflict or be inconsistent with other legislation, the P.S.L.R.T.A. stipulated:
39(1) In the event of a conflict or inconsistency between this Act or a regulation made under this Act and any other Act, this Act or the regulation prevails.
112I pause to note that a more unambiguous statement of governmental intention can hardly be imagined. I note further that the Board's interpretation of s. 1(4) of the Act both conflicts and is inconsistent with s. 39(1).
113I submit the purpose of s. 1(4) is to protect the bargaining rights of a trade union from being undermined by a change in the structure of an employer. I am unable to identify any trade unions in the geographical area of the former Essex Board whose bargaining rights needed protection. There were no such unions with bargaining rights. The only undermining was the removal of the option for construction workers in the geographical area of the former Essex Board to freely bargain collectively or otherwise as they might choose.
The "Henry VIII" clause
114Distasteful as it may be to some commentators and surely as it was to the Board, s. 39(1) is a valid and subsisting provision of the P.S.L.R.T.A. I agree with my colleagues that the legislature has the power to delegate to the executive the power to amend primary legislation. I agree that the power must receive a strict and narrow construction. However, the construction placed on s. 39(1) by the Board was so narrow as to render it meaningless.
The Board's restriction of s. 39(1) to the P.S.L.R.T.A.
115The Board stressed that s. 40(1) of the P.S.L.R.T.A. provides
40(1) The Lieutenant Governor in Council may make regulations
(b) governing how the Act applies with respect to employees of a predecessor employer who perform construction work and who, immediately before the changeover date, are in a bargaining unit in respect to which a construction union has bargaining rights; . . .
(3) A regulation under clause (1)(b) may,
(a) vary the application of this Act;
(b) prescribe provisions to operate in place of any part of this Act; and
(c) prescribe provisions to operate in addition to this Act. [page640]
116The Board's reading of s. 40(1) restricts the LGIC's regulation-making power so as to apply only to the P.S.L.R.T.A. Therefore, says the Board, s. 39(1) does not extend to prevent the application of s. 1(4) of the Act. In order to come to this conclusion, the Board was required to ignore three things:
(1) The plain and unambiguous language of s. 39(1) of the P.S.L.R.T.A.;
(2) The fact that O. Reg. 457/97 did apply to those employees in the Windsor Board by making it clear their bargaining rights did not extend to the geographical area of the Essex Board following merger; and,
(3) The existence of s. 40(3)(c) which says that the LGIC may make regulations prescribing provisions to operate in addition to this Act.
Section 1(4) of the Act does not apply in any event
117Section 1(4) sets out four pre-conditions to the exercise of the Board's discretion to make a single employer declaration:
(1) that there be two or more entities;
(2) that they carry on associated or related businesses or activities;
(3) whether or not simultaneously;
(4) under common direction or control.
118For s. 1(4) to apply, two main conditions must be satisfied -- there must be more than one corporation and they must be under common control. Before January 1, 1998, there were two corporations, but they were not under common control. Windsor voters elected Windsor Board Trustees. Essex voters elected Essex Board Trustees. There was no common control. On January 1, 1998, there was one board -- the Greater Essex Board. The Board's reasons, at paras. 37, 38, 39 and 40 of its decision of January 4, 2006, make it clear the Board found there were two boards on and after January 1, 1998. Such is not the case. The pre-conditions of s. 1(4) cannot be met before January 1, 1998, nor after. With respect, the decision to apply [s.] 1(4) is wrong in law.
119For the above reasons, I respectfully disagree with my colleagues and find the Board's decision to be patently unreasonable. I would allow the application.
Application dismissed.
Notes
Note 1: S.O. 1995, c. 1, Sch. A.
Note 2: R.S.O. 1990, c. E.2.
Note 3: S.O. 1997, c. 3.
Note 4: S.O. 1997, c. 31.
Note 5: S.O. 1997, c. 21, Sch. B.
Note 6: Ibid, s. 1.
Note 7: January 1, 1998.
Note 8: Board Decision, January 4, 2006, para. 25.
Note 9: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17.
Note 10: Supra, at para. 27.
Note 11: (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756 (C.A.), at para. 38.
Note 12: 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, at para. 26; 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, at p. 952 S.C.R., p. 683 D.L.R.; 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, at pp. 401-02 S.C.R., pp. 150-51 D.L.R.
Note 13: 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, at p. 16 S.C.R., p. 129 D.L.R.
Note 14: Supra, at para. 67.
Note 15: (2006), 2006 8711 (ON CA), 79 O.R. (3d) 444, [2006] O.J. No. 1087 (C.A.).
Note 16: Supra, at note 12 at p. 963 S.C.R., p. 690 D.L.R.
Note 17: 1989 49 (SCC), [1989] 2 S.C.R. 983, [1989] S.C.J. No. 107, 62 D.L.R. (4th) 437, 40 Admin. L.R. 181.
Note 18: 2004 SCC 23, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, at para. 18.
Note 19: Supra, at p. 468 O.R.
Note 20: Ibid, at p. 479 O.R.
Note 21: Supra, at p. 20.
Note 22: Board Decision, January 18, 2005, at para. 11.
Note 23: Ibid, para. 12.
Note 24: [1984] O.L.R.B. Rep. Oct. 1433.
Note 25: Board decision, January 4, 2006, at para51. 9.
Note 26: [Ibid, at] para. 12.
Note 27: Board decision, January 4, 2006 at para. 52.
Note 28: Rt. Hon. The Lord Rippon of Hexam Q.C., "Henry VIII clauses" (1989) 10 Statute L. Rev. 205.
Note 29: 1997 12352 (ON SC), [1997] O.J. No. 3184, 151 D.L.R. (4th) 346 (Gen. Div.).
Note 30: S.O. 1997, c. 3.
Note 31: para. 45.
Note 32: para. 47.
Note 33: para. 49.
Note 34: Ibid. at para. 50.
Note 35: (1918), 1918 533 (SCC), 57 S.C.R. 150, 42 D.L.R. 1.
Note 36: Ibid, per Idington J., at p. 165 S.C.R.
Note 37: [Ibid], per Sir Charles Fitzpatrick C.J., at pp. 156-57 S.C.R.
Note 38: [Ibid], at pp. 181-82 S.C.R.
Note 39: Ontario Public School Boards Association, supra, at para. 52.
Note 40: (2003), 2003 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876 (C.A.).
Note 41: [Ibid, at] para. 20.
Note 42: (1996), 1996 8243 (ON SC), 31 O.R. (3d) 465, [1996] O.J. No. 5383 (Gen. Div.).
Note 43: [1991] 2 All E.R. 726, [1991] 1 W.L.R. 198 (H.L.).
Note 44: [Ibid], para. 32.
Note 45: [2002] E.W.J. No. 652, [2002] 4 All E.R. 156 (Q.B.).
Note 46: [2001] Eu. L.R. 165, [2002] E.W.J. No. 5820 (H.C.J., Q.B. Div. (England & Wales)).
Note 47: 1992 110 (SCC), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1 at p. 22 S.C.R.
Note 48: [Ibid, at] para. 42.
Note 49: Board decision, January 4, 2006, at para. 37.
Note 50: Board decision, January 4, 2006, at para. 38.
Note 51: Board decision, January 4, 2006, para. 39.
Note 52: Board decision, January 4, 2006, at para. 22.
Note 53: Board decision, January 4, 2006, at para. 40.
Note 54: Donald A. Foley Ltd., [1980] O.L.R.B. Rep. April 436.
Note 55: John Hayman and Sons Co. Ltd., [1984] O.L.R.B. Rep. June 822; Evans-Kennedy Construction Ltd., [1979] O.L.R.B. Rep. May 388.
Note 56: Board decision, January 4, 2006, at para. 42.
Note 57: Board decision, January 4, 2006, at para. 43.
Note 58: Brinks Canada Ltd., [1987] O.L.R.B. Rep. May 647; Milton Hydro-Electric Commission, [2002] O.L.R.B. Rep. July/Aug. 701.
Note 59: Board decision, January 4, 2006, at para. 43.
Note 60: Ibid, at para. 44.
Note 61: See Capricorn Acoustics & Drywall Ltd., [1986] O.L.R.B. Rep. Mar. 308.
Note 62: Supra, relied on in Brinks Canada, supra.
Note 63: Board decision, January 4, 2006, at para. 45.
Note 64: JDS Investments Ltd., [1981] O.L.R.B. Rep. Mar. 294.
Note 65: Board decision, January 4, 2006, at para. 51.