The International Association of Bridge, Structural and Ornamental Ironworkers District Council of Ontario v. The International Association of Bridge, Structural and Ornamental Ironworkers, 1981 CanLII 912

The International Association of Bridge, Structural and Ornamental Ironworkers District Council of Ontario v. The International Association of Bridge, Structural and Ornamental Ironworkers

File No.: 2367-80-U Date: September 17, 1981

Complainants: The International Association of Bridge, Structural and Ornamental Ironworkers District Council of Ontario; The International Association of Bridge, Structural and Ornamental Ironworkers Locals 721, 736, 759, 765 and 786; The Rodmen Employee Bargaining Agency, consisting of the aforementioned trade unions; Group of persons on their own behalf and on behalf of each and every member of the aforementioned trade unions

Respondents: The International Association of Bridge, Structural and Ornamental Ironworkers, Norman Wilson, Ontario Hydro and the Electrical Power Systems Construction Association

Before: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

Appearances: Maurice A. Green, Ken Childs, Allan MacIsaac, Don Melvin, Larry Baillis and Gord Verdecchia for the complainants; A. M. Minsky, S. B. D. Wahl and N. Wilson for the International Association of Bridge, Structural and Ornamental Iron workers and Norman Wilson; H. A. Beresford and W. S. O'Neil for Ontario Hydro and the Electrical Power Systems Construction Association.

Decision of the Board

1. The complainants have complained that the complainants have been dealt with by the respondents contrary to the provisions of sections 56, 59(1) (2) and 60 of The Labour Relations Act. Briefly, the complainants have alleged that collective agreements have been concluded by the respondent International Association of Bridge, Structural and Ornamental Ironworkers (the "International") through the respondent Norman Wilson without either consultation with the complainants or considering their proposals. The complainants have also alleged that the collective agreements with Ontario Hydro and the Electrical Power Systems Construction Association ("EPSCA") which have been concluded have not been subject to the usual approval by the membership of each complainant local trade union.

2. The complainants have requested a declaration that the respondents have breached the provisions of the Act referred to in paragraph one and (i) a declaration that the purported collective agreements signed by the International encompassing ironworker rodmen are null and void and that the respondent (sic) be ordered to permit the complainants to participate in the process of negotiation including the requirement that the respondents place before the relevant employer association or Ontario Hydro each and every proposal agreed upon for inclusion in negotiations by the membership of the complainants and of the District Council, (ii) a declaration that the respondents make every reasonable effort to negotiate and support such proposals, (iii) a declaration that the respondent (sic) be ordered to permit the complainants to subsequently hold ratification meetings to either approve or reject the proposed collective agreements, (iv) a declaration that the International reinsert the "signing page" of one of the collective agreements, as originally approved and ratified by the complainants, (v) a declaration that EPSCA and/or Ontario Hydro be ordered to cease and desist from requiring members of the Rodmen Employer Bargaining Agency to adhere to or agree to implement the terms of the collective agreement, if any, entered into between EPSCA and the International encompassing rodmen, when such members of the Rodmen Employer Bargaining Agency submit bids for work to be performed on projects of Ontario Hydro and that EPSCA and Ontario Hydro be ordered to bargain only with the International when a negotiating committee of the International is present and made up of representatives from each complainant local trade union or its approved delegates, (vi) a declaration that, if the Board declare null and void the said collective agreements as herein requested, the terms and conditions set out in such agreements be frozen pursuant to the provisions of the Act until the parties have met and negotiated and the requirements of the Act have been satisfied before such terms and conditions can be altered, (vii) a declaration that, if the International, Ontario Hydro and EPSCA be ordered to pay all damages arising out of their illegal actions and which give rise to loss of income and benefits to each member of the complainants who have been forced to work under agreements which they had no opportunity to authorize or ratify, such monies be paid with interest from the date at which they should have been received, and (viii) an order that the respondents be ordered to pay all legal costs of the complainants arising out of this complaint.

3. At the commencement of the hearing in this complaint, counsel for the International and Norman Wilson made a motion to strike out the names of the International Association of Bridge, Structural and Ornamental Ironworkers District Council of Ontario (the "Council"), the Rodmen Employee Bargaining Agency (the "Agency") and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 700 ("Local 700") from the list of complainants in the style of cause. Counsel informed the Board that it was his information and understanding that the Council had not authorized the making or filing of a complaint and that such a complaint had not been authorized under the constitution of the Council in that there had not been a duly convened meeting as required under the constitution. Counsel pointed out that the Agency pursuant to a designation by the Minister of Labour dated March 21, 1978, consisted of the International and the Council. It was the position of counsel that his client the International had neither been asked for its approval nor given its consent to any proceeding against itself. It was his position that, in the absence of any constitution and by-laws for the Agency, the consent of the International and the Council is required in order to commence any proceeding under the Act in the name of the Agency. Counsel informed the Board that he had been advised by James Harrower, the business agent of Local 700, that Local 700 did not wish to be part of these proceedings and that Mr. Harrower would so inform counsel for the complainants.

4. Counsel for the International and Mr. Wilson argued that the onus of establishing authority or competence to act lies on he who asserts an authority or competence to act. Counsel further argued that the Agency is a statutory creation under section 127(l)(a) of the Act and consists of the International and the Council. Counsel stressed that an entity such as the Agency which did not have a constitution, by-laws or officers could only act by consensus and that in the circumstances consensus meant unanimity. It was the position of counsel that the International had never authorized this proceeding and that the Council had never held a meeting where it had been determined that this complaint should be brought before the Board. Counsel characterized any meeting of business agents who are representatives on the Council was merely a meeting of these business agents and not a meeting under the constitution and by-laws of the Council. Counsel further argued that, in any event, none of the complainants may make a complaint under section 60 because none of the complainants are employees and that none of the business agents named as complainants may make a complaint under section 59(2).

5. Counsel for the complainants argued that the International was estopped from making the motion referred to in paragraphs three and four because of the lapse in time between the filing of this complaint and the raising of the matters referred to in the motion some four days prior to the hearing of this complaint. Counsel also argued that the International had never raised the failure of the Council to call a meeting under its constitution and by-laws until the hearing before the Board. It was the position of counsel that he had been authorized by the Council to file this complaint and that Mr. Harrower had had an opportunity to inform him that he did not represent him and had not done so. Subsequently, however, Mr. Harrower appeared before the Board and informed the Board that he had instructed counsel for the complainants that Local 700 did not wish to be a party to this complaint. On the agreement of all parties Local 700 was deleted from the names of the complainants. Counsel further argued that, in the event the Board entertained the motion, the onus of establishing authority or competence to act lies on the person who challenges the right of his clients to be before the Board. Counsel informed the Board that he was advised that the Council and the Agency had authorized this complaint. He argued that he was entitled to file this complaint and that the International and Norman Wilson ought to be required to prove the lack of authority or competence which their counsel is alleging.

6. Counsel for Ontario Hydro and EPSCA did not take a position with respect to the merits of the motion of counsel for the International. He informed the Board that the replies had not been filed on behalf of Ontario Hydro and EPSCA in the hope that the differences within the International would be resolved.

7. In the circumstances of this complaint, the Board finds that the International is not estopped from making its motion. There is nothing before the Board which even suggests that the International has induced conduct by the complainants which they have relied upon. The International gave notice of its motion to the complainants prior to the hearing and it may not be said that the complainants were prejudice in replying to the motion.

8. In the course of the presentation of a reply to the motion few, if any, facts were agreed to by the parties. The question of which party has the burden or proving a particular fact must be considered from the point of view of the two aspects of the legal burden and the evidential burden. The legal burden may be defined as the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved or disproved either by a preponderance of the evidence or beyond reasonable doubt as the case may be. The evidential burden may be defined as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. See Cross on Evidence, 4th edition, p. 75. More often than not, the two different burdens fall upon the same party so that the party in question must lead evidence with a view to proving the allegations it is making. However, there may be circumstances where it is proper to place the evidential burden on one party, while leaving the legal burden on the other party. On occasions, certain facts by their very nature will be peculiarly within the knowledge of one of the parties. As Cross, supra, at page 85 states:

The existence or non-existence of a fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incidence of the burden of proof of that fact. It is only reasonable that the evidential burden should be affected in some cases.

9. It is clear that the Board may determine its own procedure within the ambit of the jurisdiction conferred upon it by the Act. In Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832, Arnup, J.A., expressed it as follows at p. 841:

It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction.

This reasoning was followed in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, 1979 CanLII 1669 (ON HCJ), [1979] 24 OR. (2d) 400.

10. With the deletion of Local 700 from the complainants it appears to the Board that there is no longer a question that counsel for the complainants has been authorized to act for at least some of the complainants. The question of whether counsel for the complainants has been authorized to represent all of the complainants depends upon various question of fact and law. Since there has not been any agreement on the facts in dispute, it is necessary for the Board to hear the evidence on the issues in dispute from all of the parties. It appears to the Board that the complainants are relying on the performance of certain alleged conduct as authorizing the making of this complaint and that this alleged conduct is peculiarly within the knowledge of the complainants. In these circumstances, the Board determines that the complainants bear the evidential burden of introducing this evidence before the Board.

11. With respect to the legal burden, various authorities were cited before the Board. Counsel for the International cited the case of Sasko-Wainwright Oil and Gas Ltd. v. Old Settler's Oil Ltd., (1957) 1957 CanLII 288 (AB SCAD), 7 D.L.R. (2d) 393, in support of the proposition that the burden is on the complainant trade unions to prove to the satisfaction of the Board that they have authority to commence proceedings. Johnson, J.A., addressing a preliminary objection, actually disposed of the preliminary objection on the basis that since want of capacity was an issue in the case, the Court should not dispose of the appeal on such a preliminary objection. However, the following comment is one of some interest, at p. 395:

Solicitors who purport to act for parties in litigation if their authority to act is challenged (and that may be by an opposite party) then must show their authority to act. Mr. MacLean was appointed solicitor for the appellant company some time before the disputed meeting so no question can be raised as to his being that company's solicitor. Lord Eldon in Wright v. Castle (1817), 3. Mer. 12, 36 ER. 5, says that a general authority is sufficient to enable a solicitor to defend a suit though not to commence one, but I think the better view to be that of North J. in Re Gray (1891), 65 L.T. 743, where he holds that there is no such thing as a general authority, at least with respect to a litigation. In any case, it would appear that Mr. MacLean acted on special instructions from the directors who have been declared improperly elected so that I do not think that he would be entitled to rely on his appointment as general solicitor for the company. The position of the Court in cases where an opposite party questions the authority to bring and defend suits is stated by Roche L. J. in John Shaw and Sons (Salford) Lid. v. Shaw, [1935] 2 K.B. 113 at p. 147: "I agree with both the Lords Justices as to the result in the decided cases and particularly of the Daimler case, [1916] 2. A. C. 307, and of the Russian Commercial Bank case, [1923] 2 K. B. 630; [1925] A. C. 112. The principles to be derived from them are that such an objection to a right to sue as is here taken should be taken not at the trial but by an interlocutory motion or summons; that if such procedure is not adopted the Court need not, and ordinarily should not, entertain such an objection at the trial as if it were a defence. It is were otherwise, then for reasons pointed out by Warrington J. in Richmond v. Branson, [1914] 1 Ch. 968, the position of the Court would be well nigh intolerable. Nevertheless, as appears from the decision in the Daimler case [supra], if want of capacity or authority to sue plainly appears at any stage the Court may then strike out the action."

The decision of the Court in that case, however, deals with the stage at which an objection to authority to act ought to be raised. There is no issue in the instant complaint that the International and Norman Wilson have raised their objection at the commencement of this complaint. That case, however, does not address itself to the question of the onus of establishing authority or competence to act. In A. V. Hallam, [1973] OLRB Rep. Nov. 599, the Board considered the issue of authority on competence to act and stated:

Having regard to the representations of the parties, the Board finds the authority and competence of individuals to represent the applicant and Local 97 have been brought into issue. The Board will entertain these issues. The onus of establishing the lack of authority or competence in the circumstances of this application rests with the party which seeks to assert the proposition which is not self-evident, i.e. which seeks to assert the lack of authority or capacity. See Robins v. National Trust Co. Ltd., [1972] All. E.R. Rep. 73; and Halsbury, Laws of England (3rd edition) Vo. 21, p. 267.

12. The Board is of the opinion that the views expressed in A. V. Hallam, supra, apply to the instant complaint. The legal burden rests with the International and Norman Wilson to establish what they are alleging, namely, that the complainants do not have the authority or competence to make certain complaints within this proceeding.

13. The Board agrees with the International and Norman Wilson that none of the complainants may make a complaint under section 60 because none of the complainants are employees in a bargaining unit. Section 60 confers rights on "employees in a bargaining unit" with respect to their trade union. In Arthur Joseph Roberts, [1974] OLRB Rep. March 169, the Board discussed the scope of section 60 and stated at pages 175-176 as follows:

17. Would the Board therefore be on a sound footing in graning relief to persons who are not employees for purposes of section 60 of the Act?

In this regard the Board has come to the conclusion that it would do violence to the intent of the Legislature if it presumed the members of a trade union affected by a union hiring hall are "employees in a bargaining unit" for purposes of supervising the operation of that hiring hall through the union's alleged duty of fair representation.

18. We are satisfied that it was the intention of the Legislation to restrict the scope of a trade union's fair representation to employees in a bargaining unit. It would be a forced interpretation of the word employee in section 60 for the Board to presume the contrary where the Legislature permits parties to the collective bargaining relationship under section 38(l)(a) of the Act to determine through negotiation the very conditions upon which the employer-employee relationship may be established. It is the Board's opinion that if the Legislature intended the scope of the trade union's duty of fair representation to extend beyond employees in a bargaining unit it would have done so in the clearest language. The Legislature has given the Board a clear mandate with respect to granting relief against discriminatory hiring practices based on trade union activity. It has not done so for purposes of section 60.

This interpretation of section 60 has been followed in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, [1980] OLRB Rep. May 808. This complaint is dismissed insofar as it relates to a complaint under section 60 of the Act.

14. Counsel for the International and Norman Wilson made a further motion with respect to particulars of the complainants' allegations. In our view, this decision has incidentally addressed some of the concerns of counsel. The parties are directed to meet and endeavour to resolve the question of the adequacy of the particulars. In the even that issues are not resolved by the parties prior to the next hearing, the Board will entertain a motion on particulars by counsel for the International and Norman Wilson.

15. The matter is referred to the Registrar to be listed for continuation of hearing.