Hotels, Clubs, Restaurants, Tavern, Employees' Union, Local 261 v. Fuller's Restaurant, 1980 CanLII 984

[1980] OLRB Rep. June 828

0150-79-R; 0153-79-R; 0073-80-R; 0074-80-R Hotels, Clubs, Restaurants, Tavern, Employees' Union, Local 261, Applicant, v. Fuller's Restaurant, Respondent, v. Group of Employees, Objectors.

BEFORE: George W. Adams, Chairman, and Board Members J. D. Bell and W. F. Ruther­ford.

APPEARANCES: A lick Ryder, Q. C. and Eleanor Dunn for the applicant; C. E. Humphrey' and D. Leafloor for the respondent; and Michael Gordon, Carmen Fisher, Marion Eveline and Bonnie Bellefeuille for the objectors.

DECISION OF THE BOARD; June 2, 1980

1. These matters are herein consolidated.

2. They arise out of four applications for certification and an earlier decision of the Supreme Court of Ontario with respect to the two earliest applications. The two earlier appli­cations were filed on April 23, 1979 and pertain to employees of the respondent employed in a proposed bargaining unit of full-time employees and a proposed bargaining unit of part-time employees respectively. The two applications were consolidated and heard by a panel of this Board on May 14, 1979. The panel issued its decision dated May 28, 1979, [1979] OLRB Rep. May 395, which decision was quashed by the Supreme Court of Ontario by a judgment dated March 11, 1980, reported at 80 CLLC ¶14,021 and written for the Court by Mr. Justice Reid.

3. In its decision of May 14, 1979 [1979] OLRB Rep. May 395 the Board refused to consider a timely and relevant statement of objection filed in opposition to the trade union's two applications by a number of employees employed in the two proposed bargaining units because the petition was not, on its face, a clear statement in opposition to the union. In failing to consider the petition, the Board at the same time refused to hear from a number of indivi­dual petitioners and their solicitor who had presented themselves at the hearing of the applica­tions for certification.

4. The petitioners applied to the Supreme Court of Ontario for judicial review of the Board's decision and were successful in having the Board's decision quashed. The Court dis­agreed both with the Board's characterization of the petition filed by the objecting employees and with the Board's interpretation of Rule 48, the rule which deals with the form and timing of trade union membership and of objection by employees to certification of a trade union.

5. The principal reasoning of Mr. Justice Reid in overturning the Board's decision is found at page 12,121 of the Court's reasoning and reads:

"There is no question that if the Board had given Mr. Gordon a moment or so to do so he could have called evidence to substantiate the desire of the petitioners to object, for the necessary witnesses were there. The Board prevented itself from doing so, however, by its super-critical read­ing of the documents filed and its very narrow interpretation of section 48(2) of its Rules, an interpretation that would certainly not have sprung to the minds of persons reading the words of the subsection in their ordi­nary sense.

The Board's error lay in failing to give the objectors a fair hearing as required by section 91(12). In doing so it violated the rules of natural justice which that section positively invoked. A denial of natural justice is a jurisdictional error. That is well-established. It is equally well estab­lished that the privative clause will not prevail against it."

6. The relief granted to the applicants is found at page 12,121 of the judgment which provides:

"The result is that the Board's decision or award, dated 28 May, 1979, is quashed. The error is wholly attributable to the Board. The Board strongly attempted to support its order in this Court. It is proper that the Board should pay applicants' costs. It is so ordered."

7. The order taken out reflects the judgment in this regard. It provides:

"1. IT IS ORDERED that the above-mentioned Award dated the 28th day of May, 1979 of The Ontario Labour Relations Board be and the same is hereby quashed.

2. AND IT IS FURTHER ORDERED that the Respondent, The Ontario Labour Relations Board, do pay to the Applicants their costs of this motion forthwith after taxation thereof."

3. By application dated April 11, 1980 the applicant trade union once again sought certification for the same two bargaining units of the respondent. These applications were given Board File Nos. 0073-80-R and 0074-80-R. However, the applicant's solicitor wrote to the Board by letter dated April 18, 1980 requesting that the two earlier applications quashed by the Supreme Court be brought on again for hearing by the Board and advising that the two "fresh applications (were) advanced in the alternative to the original applications... ." Coun­sel for the applicant also noted that the two "fresh applications" relied on the membership evidence filed in the two original applications. The full text of the letter is quite short. It reads:

"We are solicitors for the Applicant in the above-captioned matter. You will know that the Board's Decision has been set aside by the Divi­sional Court and the matter remitted to the Board for conclusion. In the circumstances, we are by this letter asking the Board to bring these matters on again for hearing.

You will also know that our client has filed fresh Applications for Cer­tification, relying on the original membership evidence. These applica­tions have been given Board File Nos. 0073-80-R and 0074-80-R. We are advising the Board and the other parties concerned that the fresh applica­tions are advanced in the alternative to the original applications which, as I say, we are asking to be brought on for hearing.

We understand that the Board has fixed May 2nd, 1980 to hear the fresh applications and we would ask that the original applications be heard at the same time."

9. The solicitors for the respondent by letter dated April 23, 1980 took the position that the earlier applications were "conclusively dealt with by the Divisional Court" and sub­mitted it would be "most improper" for the Board to deal with them again. The full text of this letter reads:

"We are Solicitors for the respondent in the above-captioned matter. We are in receipt of a letter dated April 18, 1980 from Mr. J. A. Ryder, Q.C., Solicitor for the applicant.

Mr. Ryder in his letter states with regard to a previous application for certification relating to these two parties (Board Files No.0150-79-Rand 0153-79-R) that, '.,.the Board's Decision has been set aside by the Divi­sional Court and the matter remitted to the Board for conclusion'. It is submitted that this statement is incorrect and is not supported in any way by the Judgment of the Divisional Court released on March 11, 1980 nor by the Order subsequently taken out by the Solicitor for the applicants. The Judgment of the Court and the subsequent Order clearly indicate that the Decision of the Board was quashed. There is no indication in the Divisional Court's Judgment or the Order that anything was 'remitted to the Board for conclusion'. It is the position of the respondent that it would be most improper for the Board to consider the matters relating to the earlier application for certification, given that these matters have been finally and conclusively dealt with by the Divisional Court.

Mr. Ryder in his letter suggests that the most recent applications for cer­tification (Board Files No. 0073-80-R and 0074-80-R) were filed 'in the alternative to the original application'. We would point out to the Board that there is no suggestion in the material filed in those applications that they are in the alternative to any previous application. Notice of the applicant's position that the new applications are in the alternative did not reach the respondent until after the terminal date set for the new applications.

For the above-noted reasons it is the respondent's position that the only matters pending before the Board are the applications for certification represented by Board Files No. 0073-80-R and 0074-80-R. The respon­dent objects to any matters other than those represented by the two most recent applications for certification being considered at the hearing set for May 2, 1980.

10. Counsel for the group of objecting employees by letter dated April 28, 1980, took the following position:

"I have reference to a letter forwarded to you by Mr. Ryder on behalf of the Applicant Union under the date of April 18th, 1980 and submitted in respect of Board File #'s 0150-79-R and 0153-79-R. I note and rely upon the representation made by Mr. Ryder in the second paragraph of that letter (a copy of which is enclosed) that the Union is'... relying on the original membership evidence' in those applications.

I take the position that the original membership evidence is 'stale dated' and the best evidence which the Board has in respect of the true wishes of the employees in this matter is contained in the statement of desire which was filed by me on behalf of the employees on April 21st, 1980.

I take the further position that if no new membership has been filed in this proceeding that the matter ought to be dismissed without a vote and that no vote ought to be ordered based on the original and stale dated membership evidence. Further if there be no new evidence and in the cir­cumstances I take the position that the application itself ought not only to be dismissed but that a six month bar in respect of any further applica­tions ought to be imposed."

11. The applicant's reply to the respondent's letter is contained in a letter dated April 28, 1980 and, in it, the applicant joins issue on the significance to be attributed to the Supreme Court's judgment quashing the Board's earlier decisions.

"I am writing in response to Mr. Humphrey's letter of April 23rd, 1980 which has taken issue with the use of my phrase 'remitted to the Board for conclusion'.

I am of course familiar with both the reasons for the Divisional Court Decision and its Order and don't suggest for a minute that these docu­ments use the phrase in question. I do suggest however that the effect, in law, of the Court's Decision, is to leave outstanding a determination by the Board of the original Applications for Certification filed with it in Board File Nos. 0150-79-R and 0153-79-R.

It is our respectful submission that Mr. Humphrey errs when he says that the Court 'finally and conclusively' dealt with these matters. The Court has no jurisdiction to deal with Applications for Certification in the sense of either granting or refusing to grant a certificate. Nor is there any language in its Decision or Order which purports to assume such a power. It is submitted that the effect of the Court's Decision therefore is simply that the original Decision and hearing of the Board have been aborted and the rights of the parties in the original Applications remain to be determined. Accordingly, I have been instructed by our client to have the original Applications re-scheduled for such a hearing.

With respect to Mr. Humphrey's complaint that the new Applications are in the alternative to the original ones, I can only say that this is the position we take and that it is not for Mr. Humphrey to dictate to us our decision to proceed only with the new Applications in the alternative to a hearing on the original ones."

12. It was against these background events and submissions that the Board's Registrar scheduled the four applications for hearing before this panel of the Board on May 2, 1980.

13. The Board attempted to advise all parties to the hearing that it wished to entertain argument solely on the Board's jurisdiction to proceed with Board Files No. 0150-79-R and No. 0153-79-R. The panel was of the view that this jurisdictional matter should be decided before proceeding to hear any evidence relating to these two files and, clearly, before proceed­ing with Board Files No. 0074-80-R and No. 0073-80-R.

14. At the hearing the parties elaborated the positions outlined in their correspondence and reproduced above. Counsel for the applicant submitted that the Board was obligated to proceed with the two earlier files and that the Supreme Court could not and did not purport to resolve the substantive issues outstanding between the parties. It was counsel's submission that the Supreme Court did not exercise an appellate function with respect to the Board. It simply nullified the Board's decision leaving it for the Board to complete the two outstanding matters before it. In support of this view, the Board was referred to Re Labour Relations Board (Nova Scotia) and Little Narrows Gypsum Co. Ltd. (1978), 1977 CanLII 1808 (NS CA), 82 D.L.R. (3d) 693, a deci­sion of the Nova Scotia Supreme Court, Appeal Division which the applicant argued was on "all fours" with the instant case and directly contrary to the positions put forward on behalf of the respondent and objecting employees. Counsel for the objecting employees submitted that the Board had purported to exercise its powers by both the issuance of certificates and the re­fusal to reconsider its decision and that, therefore, it was now functus officio. Alternatively, counsel for the employees submitted that having refused to reconsider its decision and having "vigorously" defended its decision before the Court, the Board had created a reasonable ap­prehension of bias in the minds of the objecting employees and, therefore, the Board could proceed no further. It was further contended that if the applicant wishes the Board to proceed further and in the face of the judgment of the Supreme Court of Ontario, counsel for the appli­cant should apply to the Court for a clarification of its order. Counsel for the respondent argued that the applicant was, in effect, requesting the Board to "rehear" the original applica­tions and that The Labour Relations Act does not provide the Board with the power to "re­hear" matters. Support for this proposition was sought in Regina v. Development Appeal Board, Exparte Canadian Industries Ltd. (1970), 1969 CanLII 724 (AB SCAD), 9 D.L.R. (3d) 727. Counsel also referred the Board to Regina v. Schaff et al, Exparte Trustees of the Ottawa Civic Hospital, 1969 CanLII 368 (ON HCJ), [1970] 1 OR. 752 in support of his submission that the failure of the Court to remit the matters back to the Board was fatal to the Board's jurisdiction to resume the two earlier proceedings that had been before it. In reply, counsel to the applicant emphasized that his client had a legal right to have its two earlier applications processed by the Board, a right that was itself enforceable in the courts by way of an application for judicial review seeking relief in the nature of mandamus.

15. We have reviewed the thoughtful submissions of all counsel and have concluded that the Board has the jurisdiction and is obligated to proceed with the two earlier applications for certification, Board Files No.0150-79-Rand No. 0153-79-R. After reviewing the judgment of Mr. Justice Reid in the light of the authorities, we have come to the conclusion that the Court did not intend to dispose of these two proceedings before the Board conclusively (to use a term found in the respondent's submissions). Rather, it did not explicitly remit the matter to the Board because the application before the Court did not seek such an order and, because the Board was already obligated to proceed if this is what the applicant trade union subsequently wished the Board to do. We are in agreement with submissions of the applicant's counsel that Re Labour Relations Board (Nova Scotia) and Little Narrows Gypsum Co. Ltd., supra, fundamentally supports the position he urged upon us. In that case a certificate issued No­vember 26, 1976 had been quashed by the Trial Division of the Nova Scotia Supreme Court. There was no order remitting the matters therein back to the Board and when the Board an­nounced its intention to continue to process the union's application, the respondent Company obtained an order prohibiting the Board from proceeding further. The granting of prohibition was based on the conclusion that the Board had exhausted its jurisdiction in certifying the applicant union (and in refusing to reconsider its decision) and the fact that the passage of time and inconvenience to the petitioning employees had been great. However, the Board success­fully appealed the prohibiting order and the reasons of Chief Justice MacKeigan dealt ex­haustively with the Nova Scotia Board's obligation to continue on with the proceedings before it. As for the passage of time and the lower court's concern for the inconvenience to the peti­tioners, the learned Chief Justice observed that prohibition cannot be used to stop the per­formance of an act within a tribunal's jurisdiction even though the Court may disapprove of the act being done or the way in which it will be done, provided that the tribunal has not shown its intention to exercise its jurisdiction unjudicially. In response to the argument that the Board had exhausted its power, Mr. Justice Mac Keigan held that the quashing order had only quashed the certification order and did not wipe out the whole proceedings before the Board prior to the certification order. The proceedings therefore remained otherwise unchanged and the union's application remained an outstanding demand upon the Board. It was emphasized that a certiorari proceeding is not an appeal from an administrative tribunal and that a formal remission to the Board was not legally or practically necessary to enable the Board to continue to perform its duty in respect of the application.

16. Further support for this position is found in the recent decision of the Supreme Court of Ontario in Nicholson and The Haldemand-Norfolk Regional Board of Commis­sioners of Police, a judgment of the Divisional Court released May 7, 1980. In that case the applicant sought to prohibit a board of police commissioners from continuing with proceed­ings to terminate a probationary constable in the light of an earlier decision by the Supreme Court of Canada holding that the commissioners owed a duty to the constable to treat him "'fairly', not arbitrarily." In rejecting the applicant's argument that the commissioners were, in effect, commencing a new proceeding which was now time barred, Mr. Justice Linden wrote:

"We are of the view that section 11 and the principle enunciated in R. v. Adair, supra, are not applicable in this case, because there has been no new proceeding instituted by the Board. Rather, we are of the opinion that the hearing scheduled by the Board for December 1, 1978 was to be a continuation of the original proceeding which was instituted on June 4, 1974, within the required six-month period.

The order of the Supreme Court of Canada, which restored the order of the Divisional Court, did not quash the entire proceeding of the Board; it merely quashed the decision that emerged from that proceeding. Con­sequently, although the Board's decision to terminate Nicholson has been held to be a nullity because it was not arrived at in an acceptable manner procedurally, this does not mean that the proceeding was insti­tuted improperly.

In an ordinary civil action, the limitation period stops running once the Writ is issued. In Re Leslie (1893), 23 OR. 143, at p. 151, Chancellor Boyd stated:

'An action properly instituted bars the operation of the Statute of Limitations, and during its pendency times does not run.'

(See also McLure v. Black (1980), 20 O.R. 70 at p. 82: Turleyv. William­son(1865), 15 U.C.C.P. 538 (C.A.): Youngetal. v. Hobsonetal. (1879), 30 U.C.C.P. 431.) The Writ need not even be served to prevent the time from running."

When a decision reached after a civil trial is reversed and a new trial is ordered, there is no requirement to issue a new Writ of Summons. Analo­gizing to the ordinary civil action, therefore, the Board may continue with the proceeding from where it left off before it reached its decision, without any need to reinstitute it.

Consequently, we are of the view that the Board retains jurisdiction to continue the proceeding it commenced on June 4, 1974. The rights and duties of the parties will be decided in accordance with their status on that date, since for that purpose time has stood still for them. Nicholson, therefore, is to be treated, for purposes of the continuing hearing, as a probationary constable, which he was at the time the proceeding was commenced.

Clearly this must be so, for to hold to the contrary would render the decision of the Supreme Court of Canada academic. It is inconceivable that, after a ruling in his favour by the Supreme Court espousing certain principles relating to his fair treatment, Nicholson could then avoid the application of those principles to himself on the continuation of the proceeding."

17. Any concern of the objecting employees over the Board's ability to deal fairly with their interest is amply accommodated by placing Board Files No. 0150-79-R and No. 0 153-79-R before another panel of the Board. Counsel for the applicant suggested that the earlier panel whose decision was quashed was still seized of the two matters, but we are not of this view. The Court's order quashed the Board's decision and the continuation of the two pro­ceedings will require new determinations in respect of all outstanding issues between the par­ties. Therefore, we would agree that the Board is seized of these two applications, we do not think a particular panel of the Board is so seized. The applicant is in no way prejudiced by another panel of the Board entertaining its applications; the objecting employees have raised concerns which can be accommodated by the substitution of another panel of the Board; and any panel hearing the two applications will be guided by the parties earlier agreement on the configuration of the two proposed bargaining units.

18. However, with or without this adjustment in the composition of the panel hearing the applications for certification, we see no basis in law or fact for the objecting employees' apprehension of bias. The panel whose decision was quashed did not evidence any particular bias or prejudice in regard to these employees, but instead focused on what it believed to be technical deficiencies in the document filed by them with the Board. Its view in this respect was wrong and the result was a denial of natural justice, but the decision of the Board contains no hint of animosity towards the objecting employees as individuals and the judgment of the Court does not suggest otherwise. Counsel for the employees took issue with the Board "vigorously" defending its decision before the Courts and suggested that the Board's conduct before the Court somehow added to his clients' fear of bias. The Board and the counsel it retains to act on its behalf are fully aware of the delicate role assigned to them before the Courts. See Northwestern Utilities Ltd. et al v. City of Edmonton, 1978 CanLII 17 (SCC), [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161 and Re Canada Labour Relations Board and Transair Ltd. et al, 1976 CanLII 170 (SCC), [1977] 1 S.C.R. 722, 67 D.L.R. (3d) 421. The Board has an ongoing responsibility in administering the statute, unlike a board of arbitration for example, and has found that its presence in court on an application for review has been of assistance to both the court and the party litigants. Where the Board's counsel oversteps the role a court wishes the Board to play, one would expect that counsel would be then and there advised. In the instant case we understand that the Board's counsel addressed the Court only on the issue of jurisdiction. It would appear that the vigor of our counsel's presentation contributed to the Court's decision to award the applicants costs against the Board. But had the Court intended to rely on counsel's presentation as a reason for not remitting these matters back to the Board, we have no doubt that so serious a disposition would have been explicitly justified. Accordingly, whether counsel's approach was vigorous or not, it cannot be a proper basis for an allegation of apprehended bias and we would simply assure the objecting employees that the particular style of any counsel the Board retains is personal to that lawyer.

19. The respondent relied on Regina v. Development Appeal Board, Ex parte Can­adian Industries Ltd. supra and Regina v. Schaff et al, Ex parte Trustees of Ottawa Civil Hospital, supra. With respect to the former case, we would point out that it does not stand for the proposition that an administrative tribunal cannot continue on with the matters before it subsequent to a court quashing an outstanding decision. In the Development Appeal Board case, a tribunal attempted to undertake a second decision on its own initiative and prior to an application being made to the Court. However, the statute did not provide the tribunal with broad powers of reconsideration and, therefore, it was without jurisdiction to cure the earlier defect in its proceedings as it had tried to do by the holding of a second hearing. In Ottawa Civic Hospital the Court did consider whether it could remit an arbitration award back to a board of arbitration with appropriate directives, as the result of a suggestion by the respon­dent to this effect. On reviewing the authorities, and particularly Re Civic Employees, Union No. 43 and Municipality of Metropolitan Toronto 1962 CanLII 177 (ON CA), [1962] OR. 970, 34 D.L.R. (2d) 711, the Court was satisfied that it could so remit the award for reconsideration and to grant a man­damus for that purpose even though such relief was not requested by the applicant. Indeed, it would appear that a remission of a matter by a court is, in effect, the granting of mandamus whether solicited or not. See Reid and David, Administrative Law and Practice (2d ed. 1978) page 350. This was the view taken by the Divisional Court in Brown v. Waterloo Regional Board of Commissioners of Police released May 7, 1980 where at page 10 Mr. Justice Reid commented:

"The only basis on which a remission could stand was (apart from consent) the court's authority to issue a mandamus order. The applica­tion did not ask for a mandamus. It was only for certiorari to quah. The court appears to have interpreted the application as if it included a re­quest for a mandatory order."

20. An order quashing an administrative tribunal's decision might definitely dispose of a matter before that tribunal where the very subject matter of the proceeding is beyond the tribunal's jurisdiction as determined by the Court or where a tribunal has so misconducted itself that a fair subsequent hearing cannot occur. Neither of these situations prevail in the instant case. Rather, the failure of the Court to remit the matter to the Board reflects the fact that the objecting employees did not seek this relief and the Court would have been satisfied that the matter could be continued if this is what the applicant trade union wished. Moreover, the absence of additional directives from the Court is a good indication that it did not think the Board needed to adopt a particularly different approach in continuing to deal with the out­standing applications. However, the Board has decided to change the composition of the panel out of an abundance of caution and given the representations of counsel for the objecting employees.

21. The Registrar is therefore directed to schedule Board Files No. 0150-79-R and No. 0153-79-R for hearing in Ottawa before a freshly constituted panel of the Board and to so notify all interested parties. Board Files No. 0074-80-R and No. 0073-80-R will be adjourned pending the resolution of the two earlier applications.