CITATION: Ontario Public Service Employees Union v. College Employer Council, 2015 ONSC 3426
DIVISIONAL COURT FILE NO.: 397/14 DATE: 20150617
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, MOLLOY & LEDERER JJ.
IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
IN THE MATTER OF a Decision Issued by the Ontario Labour Relations Board on July
24th, 2014 and a Decision issued by the Ontario Labour Relations Board on August 26th, 2014
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
COLLEGE EMPLOYER COUNCIL and
ONTARIO LABOUR RELATIONS BOARD
Respondents
David Wright & Rebecca Stulberg, for the Applicant
Wallace M. Kenny, for the Respondent, College Employer Council
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: May 21, 2015
LEDERER J.:
Introduction
[1] This is an application for judicial review of a decision of the Chair of the Ontario Labour Relations Board (“OLRB”) concluding that the OLRB had the jurisdiction to determine the date on which a vote seeking the authorization to strike was to be taken. In short, it asks whether, pursuant to the prevailing legislation, that date is to be set by the OLRB or whether this falls within the exclusive right of the union, part of the strategic arsenal that rests with the union within the overall context of collective bargaining.
Background
[2] The Ontario Public Service Employees Union (“OPSEU”) represents two bargaining units within Ontario’s post-secondary colleges (one for academic staff and one for other workers). The College Employer Council (“Council”) represents the colleges for the purposes of labour relations. The collective bargaining process is governed by a separate statutory scheme pursuant to the Colleges Collective Bargaining Act[^1] (“CCBA”) rather than the Labour Relations Act, 1995[^2].
[3] During the summer of 2014, OPSEU and Council were negotiating a new collective agreement for academic staff across Ontario. When negotiations bogged down, the union decided to schedule a strike vote for August 28, 2014. Council objected to the timing of the vote. It took the position that it fell to the OLRB to determine when the vote was to be held.
[4] The parties agreed to make written submissions to the OLRB, seeking a “bottom-line” decision on whether the OLRB had jurisdiction under the CCBA to determine the timing of a strike vote.
[5] In a brief written decision, dated July 24, 2014, the Board Chair ruled that the OLRB had the jurisdiction and would determine the date of the strike vote. He indicated that if the parties required full reasons for this decision, they should ask for them within three days. OPSEU made that request and a more comprehensive “Decision of the Board” was issued on August 26, 2014.
[6] It is this decision that is the subject of the application for judicial review.
The applicable statutory provision
[7] Ultimately, the question asked is one of statutory interpretation. The pivotal provision is s. 17(1) of the CCBA, particularly subsection 17(1)(c). The section in its entirety states:
- (1) No employee shall strike unless,
(a) there is no collective agreement in operation between the Council and the employee organization that represents the employee;
(b) a conciliation officer has made a report to the Minister of Labour under clause 7(3)(b) to the effect that, despite his or her efforts, the terms of a collective agreement have not been settled and the Minister has informed the parties of the report by notice in writing in accordance with subsection 7(4);
(c) the members of the bargaining unit have voted in favour of a strike by a vote by secret ballot conducted under the supervision of and in the manner determined by the Ontario Labour Relations Board;
(d) after a vote in favour of a strike in accordance with clause (c), the employee organization that represents the employee gives the Council and the employer written notice of the strike and of the date on which the strike will commence at least five days before the commencement of the strike; and
(e) 16 days have elapsed after the date on the Minister’s notice referred to in clause (b).
[Emphasis added]
The issue
[8] The central issue to be determined is the meaning and extent of the phrase found within clause 17(1)(c):
…under the supervision of and in the manner determined by the Ontario Labour Relations Board; …
[9] Does this phrase include the authority to set the date on which the vote is to be held?
Standard of Review
[10] The applicable standard of review depends on whether the issue before the OLRB was a true question of jurisdiction (to which a correctness standard of review applies) or a question of statutory interpretation (attracting a standard of reasonableness).
[11] It is quite clear that the standard of review for decisions of the OLRB which consider an interpretation of its home statutes is reasonableness. There are decisions of this court that say so.[^3] There is no need for further inquiry.
[12] It was proposed, on behalf of OPSEU, that the issue is a true question of jurisdiction and that the applicable standard of review is correctness. It is not. First of all, it has to be said that such questions will be rare. The Supreme Court of Canada has suggested that they may not exist at all:
…Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.[^4]
[13] Although the Board Chair himself referred to the question before him as one of jurisdiction, that is not determinative for purposes of judicial review.[^5]
[14] Whatever may remain as a true question of jurisdiction, the question of whether the OLRB has the authority under the CCBA to impose the date for a strike is not one. That question depends on an interpretation of the CCBA which, for the purposes of this case, is a home statute of the OLRB.
Analysis
[15] Counsel for OPSEU was quick to acknowledge that, read on its own without recourse to any other section of the CCBA, these words would include the power to set the date. On its face, that right falls squarely within the authority to “supervise” a strike vote. Taken on their own, these words are broad enough to include such a mandate. The problem is that it is not appropriate or proper to segregate this clause from the remainder of the statute. It a fundamental rule of statutory construction that a statute is to be read in its entirety:
… the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.[^6]
[16] Section 17(1) is not the only one which deals with the taking of a vote or which relies on the phrase “…under the supervision of and in the manner determined by…” to describe the authority of the OLRB in the taking of the vote.
[17] OPSEU points to three other such clauses as providing context for the proper interpretation of s. 17 (1):
• section 16 which deals with a vote to ratify a proposed agreement or memorandum of settlement;
• section 30(6) which considers a “representation vote”;
• section 39(7) which reflects the requirement for a vote where representation may be withdrawn.
[18] For the first of these (s. 16), like s. 17(1)(c), the power to supervise stands alone without further qualification. The other two, the votes concerned with representation, give more specific direction, particularly as to the timing of any vote. Subsection 30(4) indicates that a vote considering representation is to be held “…in a timely manner, within a period to be set by the Board…” and subsection 39(5) that a vote to withdraw representation be held “…within a time period determined by the Board.” Both s. 30 and s. 39 contain further direction as to the timing of the vote. Subsections 30(5) and 39(6) say:
In determining the time period under [in each case, the immediately preceding subsection] the Board shall ensure that the vote is held during a time period when the persons eligible to participate in the vote are substantially representative of persons likely to be substantially affected by the result of the representation vote.
[19] With these clauses added to the review of the legislation, counsel for OPSEU submits it becomes clear that the OLRB, in fact, does not have the jurisdiction to impose the date on which any vote will be held. This is based on the proposition that in circumstances where the legislature intended that the OLRB have the authority to set the date (as it did in s. 30 and s. 39), it said so. As counsel sees it, in the absence of this specific direction, it is clear that it was not intended that the OLRB has the jurisdiction to set the date. Otherwise, the additional words found in clauses 30(4) and 39(5) are surplus and add nothing to the meaning of the statute. This offends the “presumption against tautology”:
It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.[^7]
[20] I do not agree with the position taken by counsel for OPSEU.
[21] The fact remains that those who draft and those who vote to pass legislation are not perfect. Redundancies appear. There can be a lack of clarity:
In plain terms, because legislatures do not always speak clearly and because the tools of statutory interpretation do not always guarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable interpretations…[^8]
[22] There is an example in this case. There is no logical or rational explanation for subsection 30(4) to include the requirement that, within the time period determined by the OLRB, the vote is to be “held in a timely fashion” and for those words to be absent from subsection 39(5) (see: para. 18 above). A strict application of the “presumption against tautology” would indicate that the inclusion of these words add meaning that would otherwise not be present. This would suggest that a vote under s. 39 need not be undertaken in a timely fashion and, in fact, could be delayed.
[23] It is not without significance that at least one well-known text, Driedger and Sullivan, On the Construction of Statutes,[^9] refers to this as a “presumption” rather than a rule. Generally, presumptions are understood to be rebuttable, rules are not. The presumption (or rule) against tautology is an aid to the interpretation of a statute. However, it is not always definitive.
[24] In considering this same argument advanced by OPSEU, the Board Chair held that he was “unpersuaded” and that he found the more compelling explanation for the difference between these provisions was that the “Legislature simply wanted to be more prescriptive or directive with respect to the timing of certification or termination votes” and therefore carved out these more specific directions to the Board with respect to the general authority to direct and supervise votes. The Board Chair also pointed to differences between the CCBA and the Labour Relations Act as supporting his interpretation.
[25] It should be noted that under the Labour Relations Act, there is no equivalent provision giving the Board any power to conduct or supervise a strike vote to be taken by a union. Rather, under the Labour Relations Act, the time within which a strike vote can be taken are defined, but there is no provision that the vote is to be supervised or conducted by the Board. For example, ss. 79(3) and (4) provide:
79(3) If a collective agreement is or has been in operation, no employee shall strike unless a strike vote is taken 30 days or less before the collective agreement expires or at any time after the agreement expires and more than 50 per cent of those voting vote in favour of a strike.
79(4) Subject to section 79.1, if no collective agreement has been in operation, no employee shall strike unless a strike vote is taken on or after the day on which a conciliation officer is appointed and more than 50 per cent of those voting vote in favour of a strike.
[26] Finally, the Board Chair noted, as a practical matter, that if the Board was to conduct and supervise a vote, the date upon which that would happen could not merely be dictated by the Union, as there could be many logistical reasons that the Board could not do so on a particular date. The Board Chair referred to the concession by OPSEU counsel that the Board could reject any date proposed by the Union and ask the Union for an alternative date. The Board Chair found that this was essentially an admission that the Board had some jurisdiction to determine when the vote would occur, and that the real argument was about how the Board should exercise its jurisdiction, not whether it had any jurisdiction.
[27] The Reasons of the Board Chair are entitled to deference. This is a matter involving policy and practical considerations for the Board, as well as the interpretation of the legislation within the overall context of labour relations in this province. It cannot be said that this decision is unreasonable. The decision he has made falls squarely within the parameters of reasonableness set by Dunsmuir v. New Brunswick:[^10]
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[^11]
[28] The justification is clear. The plain reading of the words “supervise” and “manage” include setting the date for the vote. The additional terms found in sections 30 and 39 are, as the OLRB found, more prescriptive. The understanding that the OLRB has the authority to set the date for a strike vote is among “the range of possible, acceptable outcomes.”
[29] The finding of the OLRB that the legislature, with respect to the votes referred to in sections 30 and 39 intended to be more prescriptive, is apposite. On a plain reading, the words “under the supervision of and in the manner directed by…” clearly include setting the date for the vote. This is so in each of the four sections where the phrase is used (ss. 16, 17(1)(c), s. 30(6) and s. 39(7). The legislature wished to add to or place limits on this authority as it appears in sections 30 and 39; hence, the presence of ss. 30(4), 30(5), 39(5) and 39(6). There is nothing inconsistent about this. It is an interpretation that allows the words, all the words, to be read in their plain and ordinary meaning and in a fashion which is consistent with the principles of statutory interpretation, including the presumption against tautology.
[30] Counsel for the OPSEU submitted that there was another problem with the decision of the OLRB. It failed, he said, to provide any reasons for its decision. The sufficiency of reasons was considered in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)[^12]. Adequacy of reasons is not a stand-alone basis for setting aside a decision.[^13] Reasons need not be comprehensive.[^14] It may be that the court will turn to the record to supplement the reasons and assure itself of the reasonableness of the result.[^15]
[31] To my mind, the reasons of the OLRB are more than sufficient. It considered the submissions made on behalf of OPSEU with respect to the language and wording found in the sections dealing with votes. It found those arguments unpersuasive. The argument made on behalf of Council that the legislature simply wished to be more prescriptive or directive with respect to certification or termination votes was “far more compelling.”[^16] The OLRB went on to consider the various canons of statutory interpretation referred to, but found that they did not lead to the conclusion proposed by OPSEU. Rather, when read, giving them their ordinary and grammatical meaning, it was impossible to understand the words “…conducted under the supervision of and in the manner directed by the Ontario Labour Relations Board” as not including the ability to determine the date of the vote.[^17]
[32] Indeed, even if I applied the standard of correctness, I would find that the decision, as arrived at by the OLRB, is correct. As the OLRB said, it simply is not possible that the authority to supervise and manage does not include the right to set the date for the vote. Counsel for OPSEU was obliged to admit as much when he acknowledged that, even if the OLRB could not set the date, it certainly had the power to object to a date selected. This would happen if the union chose a date but the OLRB was unable to make the arrangements (provide the staff) necessary to supervise the vote on that particular day.
Conclusion and Order
[33] The application is dismissed. As agreed to by the parties, Council, as the successful party, is awarded its costs of the application in the amount of $7,500, payable by OPSEU. The OLRB did not seek costs.
___________________________ LEDERER J.
THEN J.
MOLLOY J.
Released: June 17, 2015
CITATION: Ontario Public Service Employees Union v. College Employer Council, 2015 ONSC 3426
DIVISIONAL COURT FILE NO.: 397/14 DATE: 20150617
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MOLLOY & LEDERER JJ.
IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
IN THE MATTER OF a Decision Issued by the Ontario Labour Relations Board on July 24th, 2014 and a Decision issued by the Ontario Labour Relations Board on August 26th, 2014
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
COLLEGE EMPLOYER COUNCIL and
ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
LEDERER J.
Released: June 17, 2015
[^1]: S.O. 2008, c. 15.
[^2]: S.O. 1995, c. 1 Sched. A.
[^3]: See, for example: Schuit Plastering & Stucco Inc. v. Ontario Labour Relations Board, 2009 30145 (ON SCDC), Labourers’ Int’l Union of North America, Local 1059 v. Int’l Union of Painters and Allied Trades, 2014 ONSC 755 and Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520.
[^4]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, [2011] 3 SCR 654, 2011 SCC 61, at para. 34.
[^5]: Toronto Police Association v. Toronto Police Services Board, 2013 ONSC 4511
[^6]: A.G. v. Prince Ernest Augustus of Hanover, [1957] A.C. 436, at p. 463 (H.L.). See also: Bell ExpressVu Limited Partnership v. Rex 2002 SCC 43, 2002 S.C.C. 43 where Iacobucci J. makes a similar point both as referred to in Sullivan and Driedger, On the Construction of Statutes, Fourth Edition, Butterworths Canada Ltd., at p. 281.
[^7]: Ibid, (Sullivan and Driedger), at p. 158, referring in the first quoted sentence to A.G. Quebec v. Carrières Thérèse Ltée (1985), 1985 35 (SCC), 20 D.L.R. (4th) 602, at 608, (S.C.C.); and quoting from R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 28, (per Lamer C.J.):
It is a well-accepted principle of statutory that no legislative provision should be interpreted so as to render it mere surplusage.
[^8]: McLean v. British Columbia (Securities Commission) 2013 SCC 67, 2013 S.C.C. 67, at para. 32, referring to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47; and to Construction Labour Relations v. Driver Iron Inc. 2012 SCC 65, 2012 S.C.C. 65, [2012] 3 S.C.R. 405.
[^9]: Supra, (fn. 3).
[^10]: Supra, (fn. 14).
[^11]: Ibid, at para. 47.
[^12]: 2011 SCC 62, [2011] 3 S.C.R. 708, 2011 S.C.C. 62.
[^13]: Ibid, at para. 14.
[^14]: Ibid, at paras. 16 and 18.
[^15]: Ibid, at para. 15.
[^16]: Ontario Public Service Employees Union v. College Employer Council Decision of the Ontario Labour Relations Board, dated August 26, 2014 (OLRB Case No. 1143-14-CV), at paras.6 and 7.
[^17]: Ibid, at para. 9.