Ontario Taxi Association 1688 C.L.C. v. Maple Leaf Taxi Company

[1982] OLRB Rep. October 1533

1489-81-R Ontario Taxi Association 1688 C.L.C., Applicant, v. Maple Leaf Taxi Company, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. K. Lee and W. H. Wightman.

DECISION OF THE BOARD, October 29, 1982

1. This is an application for reconsideration of a decision of the Board dated January 12, 1982 in which the Board certified the trade union as the bargaining agent for a number of individuals employed by the respondent company. In order to understand the context in which the application for reconsideration arises, it is necessary to set out the course of these proceedings in some detail.

2. On October 9, 1981, the union applied to be certified as the bargaining agent for a bargaining unit of employees described as follows:

All employees of Maple Leaf Taxi Co. Ltd. in Toronto, Ontario, described as owner-operators (single car), operators (lease plate single-car), and drivers, save and except dispatchers, multi-car and plate owners, foremen, and those above the rank of foreman and office staff.

In accordance with its usual practice, the Board processed this application and scheduled a hearing for October 30, 1981 for the purpose of hearing the parties' evidence and submissions with respect to all matters arising out of, or incidental to the application. On October 29, 1981, the respondent employer filed its reply to the application by its solicitor, Philip J. Wolfenden, - a practitioner experienced in labour relatioons matters who frequently appears before the Board. In that reply Mr. Wolfenden set out the following representations on behalf of the employer:

The Respondent takes the following positions in regard to the above-noted Application for Certification:

1. The persons for whom the Applicant seeks bargaining rights are not employees of the Respondent within the meaning of the Ontario Labour Relations Act. Rather, the Respondent submits these persons are independent businessmen with whom the Respondent cannot be said to have an employee/employer relationship.

2. Alternately, and apart from the above position, the Respondent submits the Board should not certify the Applicant as it would be an Employer dominated organization as prohibited by Section 13 of the Ontario Labour Relations Act, R.S.O. 1980, Chapter 228.

3. Additionally, the Board should not certify the Applicant due to serious misrepresentations made by the Applicant's collectors during the organization drive. Specifically, the Union's collectors misrepresented to these independent businessmen that the purpose of their organization was to lobby with Metro Toronto in an effort to increase taxi fares. At no time were these independent businessmen told the purpose of the Applicant's organization was to bargain collectively with the Respondent. In this respect, the Respondent submits many membership cards were signed under a false representation and therefore should be disregarded by the Board.

4. As the Respondent is not in an Employer/employee relationship with anyone, the Respondent submits there is no appropriate bargaining unit in the circumstances.

5. In an effort to aid the Board in this matter, the Respondent has enclosed a Schedule "A" listing persons whom the Respondent submits are Owner-Shareholders of the Respondent. Many of these persons employ drivers whom the Respondent has no knowledge of and is therefore not in a position to submit those names to the Board.

3. The matter came on for a hearing before the Board, as scheduled, on October 30, 1981. At that time, Mr. Wolfenden appeared on behalf of the respondent employer and outlined the issues, as he saw them, along the lines set out in the respondent's reply. Essentially, it was his contention that there was a substantial question concerning the status of the individuals potentially affected by the application for certification. In particular, it was asserted that some or all of them might be "independent contractors" and, therefore, excluded from the Labour Relations Act, or alternatively, "dependent contractors" to whom special bargaining unit considerations might apply. The Board accepted these submissions and determined that it would be appropriate to appoint a Labour Relations Officer to meet with the parties and attempt to settle the employee list and the composition of the bargaining unit.

4. The question of whether an individual is an "employee" or and "independent contractor" is a difficult one at common law; moreover, the efforts of the Legislature to avoid some of these problems by creating the statutory concept of a "dependent contractor" has generated its own jurisprudence. The Board need not elaborate upon that jurisprudence here. It suffices to say that the legal and factual problems outlined by Mr. Wolfenden on behalf of the respondent employer are difficult ones, and it was for this reason that the Board considered it appropriate to appoint an Officer to meet with the parties in order to assist them, if possible, to resolve or narrow the issues in dispute. By decision dated November 2, 1981, the Board held:

1. The name: "Maple Leaf Taxicab Company Limited" appearing in the style of cause of this application as the name of the respondent is amended to read: "Maple Leaf Taxi Company".

2. This is an application for certification. It is apparent on an examination of the material filed by the parties that there is a substantial dispute between them concerning the identity and status of the individuals affected by the application. Those issues must be resolved before the Board can proceed to the other aspects of the case. Accordingly, the Board hereby appoints an officer to inquire into the employee list and the composition of the bargaining unit, and to report to the Board. This appointment is made, of course, without prejudice to the respondent's right to raise the allegations contained in its reply; nor is it intended to foreclose either party from seeking further direction from the Board when they have more clearly defined the scope of their dispute. The Board further notes the agreement of the parties that this particular panel of the Board is not seized with this matter.

5. The Officer, following his appointment, convened a number of meetings of the parties for the purpose of resolving the dispute concerning the employee list and the composition of the bargaining unit. The Board's records indicate that such meetings were held on November 18th, December 3rd, December 10th, and December 21, 1981. On December 18, 1981, it appears that the Board Officer was informed that Mr. Wolfenden was no longer acting for the respondent. On December 21, 1981 shortly after his departure from the case, the parties were able to reach an agreement with respect to the bargaining unit description and the list of employees who would fall within such bargaining unit. The respondent also agreed to withdraw the various charges made against the applicant union set out in the respondent's reply. In effect, all of the issues raised by Mr. Wolfenden in the respondent's reply were resolved by agreement of the parties. This agreement purports to be signed by responsible officers of the respondent, and bears the respondent company's corporate seal. The agreement, of course, disposed of difficult factual and legal issues which would otherwise have to be resolved by the Board through litigation. The agreement reads:

The parties above agree as follows:

1. All charges by the Respondent against the Applicant are withdrawn.

2. The bargaining unit shall be: -

"All owner operators and drivers employed by the respondent in Toronto Ontario save and except Supervisors personnel [sic] above the rank of supervisor, Multiple operators, Dispatchers and office staff.

3. That the attached (Schedule "A") as amended is the list of employees for the purpose of the count.

4. That the parties agree to waive the officer's report in this matter.

Dated at Toronto the 21st of December 1981.

6. On December 21, 1981, the parties also executed a waiver of hearing which reads as follows:

The parties have appeared before an Officer of the Board and subject to the Board's normal practice of second check, hereby consents to the Board issuing a decision in this matter based upon the submission made and agreements reached without a hearing before a panel of the Board.

This waiver of hearing document also purports to be executed on behalf of the respondent. While it appears that the respondent's former solicitors had withdrawn by this point, there is no indication that the respondent sought further legal advice before executing these documents. On the other hand, the Board's records indicate that Mr. Wolfenden was "on the record" until at least December 18, 1981, when he informed the Board Officer that he was no longer acting on behalf of the respondent.

7. On January 12, 1982, on the basis of the agreement of the parties resolving the matters in dispute between them, the Board issued a decision in the following terms:

1. The name: "Maple Leaf Taxicab Company Limited" appearing in the style of cause of this application as the name of the respondent is amended to read: "Maple Leaf Taxi Company".

2. This is an application for certification.

3. When this matter originally came on for a hearing, the parties were in substantial dispute concerning the number and status of Pie individuals in the applicant's proposed bargaining unit. In accordance with its usual practice, the Board appointed a labour relations officer to inquire into the employee list and the compostion of the bargaining unit; and after a number of meetings with the officer, the parties were able to resolve all of the matters in dispute between them. The parties were also content that this matter be disposed of pursuant to their agreement without the necessity of a further hearing.

4. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

5. Having regard to the agreement of the parties, the Board finds that all owner-operators and drivers employed by the respondent at Toronto, Ontario, save and except supervisors, persons above the rank of supervisor, multiple operators, dispatchers, and office staff, constitute a unit of employees appropriate for collective bargaining.

6. On the basis of the membership evidence filed by the applicant, and the parties' agreement with respect to the composition of the bargaining unit, the Board finds that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 23, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

7. A certificate will issue to the applicant.

8. The Board notes the agreement of the parties to withdraw all charges of misconduct made in connection with this application.

8. On October 20, 1982, more than ten months after the original Board decision, the respondent, by a new firm of solictors, wrote to the Board:

Gentlemen:

Re: Maple Leaf Taxi Company Ltd.

As you are aware from previous correspondence, we act on behalf of the above-noted company with respect to a decision made on January 12, 1982, regarding certification of Ontario Taxi Association 1688 C.L.C. by the Labour Relations Board.

After reviewing this matter with our client, we wish to make an application under Section 106 of the Labour Relations Act to have the Board reconsider the certification of the Union pursuant to the said Section and have the certification set aside. The facts and circumstances regarding the basis of this request are as follows:

Our client advises us that at the time the hearing was held on January 12, 1982, it was not represented by counsel although the original opposition to the certification was filed by counsel on behalf of Maple Leaf Taxi Company Ltd. Apparently, at that time counsel did not wish to represent our client prior to the January 12th decision and our client advises us that it was too late to retain other counsel to act for it. Also, they could not afford to pay new counsel at that time.

This particular certification involved the certification of the taxi drivers and owners of taxi motor vehicles. As you may be aware, this involved an issue with respect to whether or not the union's members were independent or dependent contractors as defined by the Labour Relations Act. As you may also be aware, there are cases conflicting as to whether or not the taxi drivers and owners fit within this category of employee of [sic] dependent contractors within the Labour Relations Act. Whether or not any individual group of such drivers, owners and operators falls within this category largely depends on the circumstances of each individual case.

Of course, our client without legal representation was not aware of these fine distinctions between law and fact. Our client has advised us that had they had the benefit of legal advice they would not have agreed to have the certification of the union on the basis that in their particular case the taxi drivers and owners were not in an employee relationship with the company and therefore they were not an appropriate bargaining unit. In fact, it appears that these particular drivers and owners were really independent contractors.

As it appears that all of the facts were not before the Labour Relations Board at the time the decision was made, we would ask that arrangments be made for a new hearing under Section 106 of the Labour Relations Act in order that the certification may be set aside.

Kindly advise us of the date this matter may be heard.

Thank you for your assistance herein.

For the reasons set out in this letter, the respondent's new solicitors request the Board to reconsider its decision and set aside the certificate.

9. In his reply on behalf of the respondent, and his able submissions before the Board on October 30, 1981, Mr. Wolfenden, then the respondent's s counsel, accurately and comprehensively outlined the factual and legal issues which might be raised by the application for certification and which would have to be resolved, through litigation, if the parties were unable to reach some agreement. That is why the Board appointed a Labour Relations Officer, and it might be noted, that appointment was expressly made without prejudice to the respondent's right to raise the various issues set out in its reply. Moreover, it appears that the respondent continued to be represented by counsel for at least some period of time following the Board decision. Thereafter, it is said that the respondent was without counsel and that it entered an arrangement which was improvident. But there is no indication that the respondent made any effort to secure alternative legal advice at that time. On the contrary, on December 21, 1981, it decided to proceed, without counsel, and settle the substantive issues in dispute - in effect agreeing that a number of individuals whose status was disputed were indeed employees within the meaning of the Act. It was on the basis of that agreement that the Board issued its decision of January 12, 1982.

10. There was no hearing on January 12, 1981. No hearing was necessary. The parties had resolved the matters in dispute, had waived their right to a hearing, and indicated that they were content that the Board issue its decision on the basis of their agreement. Now, ten months later, the respondent seeks to resile from its earlier agreements and bring the matter on before the Board.

11. In proceedings before the Labour Relations Board parties are entitled, but not required, to be represented by lawyers. In the instant case, at the outset, the trade union was not represented by a solicitor and the respondent was represented by experienced labour relations counsel. Counsel on the respondent's behalf raised a number of issues of fact and law which would have to be resolved through litigation if the parties were unable to reach some accomodation short of that. But that is what they did, and we do not think it is now open to the respondent to repudiate its earlier agreement and litigate issues which had been formally resolved. There is no suggestion that the Board denied the respondent the right to a hearing on the issues which were raised in its reply. On the contrary, the appointment of a Labour Relations Officer was expressly made without prejudice to the respondent's right to do so. If the respondent chose to proceed without counsel to settle the issues in dispute between the parties, it did so at its own peril; moreover, it is a little difficult to understand why it let ten months go by before seeking reconsideration.

12. Nor is it easy to understand how individuals operating a business and possessing ordinary common sense could be under any illusion as to the nature and potential effect of their agreement. Despite the sometimes difficult determination of whether an individual is an "employee" or an "independent contractor" (a problem which the Legislature sought to simplify with the notion of a "dependent contractor" found in section l(l)(h) of the Act) the certification process itself is relatively straightforward. In essence, it is a matter of determining whether a trade union enjoys majority support among a group of employees. The respondent initially claimed that the drivers were not employees but small businessmen. Later it conceded and agreed that certain of them were, indeed, employees. Once the respondent had agreed to the composition of that employee group it must have understood that a certificate would issue if the union could demonstrate the required support. And if there was any misapprehension in this regard why did the respondent wait for ten months before requesting reconsideration? Its second thoughts were rather long in surfacing.

13. The respondent may well have compromised its position in a manner which, in retrospect it considers imprudent, and had it continued to be represented by Mr. Wolfenden or sought other legal advice (as it was entitled and had the opportunity to do) it might not have agreed to settle its case. But it would make nonsense of the settlement process which the Board, like the Courts, seeks to encourage, and it would be patently unfair to the applicant union if the matter were now re-opened. There are literally hundreds of cases before the Board every year which are either settled entirely or expeditiously resolved because of the parties' agreement on certain factual or legal issues. On the basis of such agreements, the Board typically issues a decision which is, by section 106 itself, expressed to be both final and binding for all purposes (see also section 108). To hold that these decisions should be reconsidered, months later, because a party asserts that he acted without adequate legal advice would substantially prejudice the private resolution of industrial disputes and contribute to an escalation of litigation. And, in this case, of course, the respondent was initially represented by experienced counsel who accurately and astutely put the respondent's position to the Board. It was the respondent itself which decided to proceed without counsel and compromise its stated position.

14. Section 106 gives the Board an extraordinary authority to reconsider its earlier decisions. But for the foregoing reasons we do not think this is an appropriate case for reconsideration. Nor is it necessary or appropriate to schedule a new hearing in this matter as requested by the respondent's new solicitors. The application for reconsideration is therefore dismissed.