[1983] OLRB Rep. July 1087
0396-83-U Retail, Wholesale and Department Store Union, Complainant, v. Knob Hill Farms Limited, Respondent
BEFORE: F. Norris Davis, Vice-Chairman and Board Members F. J. Brady and S. Cooke.
APPEARANCES: Stanley Simpson amid Carole Currie for the applicant; Michael Gordon, Thomas Stefonik and Howard Wood for the respondent.
DECISION OF E. NORRIS DAVIS, VICE-CHAIRMAN AND BOARD MEMBER S. COOKE; July 13, 1983
This is a complaint under section 89 of the Labour Relations Act alleging that the respondent has contravened sections 3, 64, 66 and 70 of the Act.
The respondent raised as a preliminary objection the jurisdiction of the Board to direct the respondent to proceed first in the calling of evidence as is the Board's practice in application of section 89(5) of the Labour Relations Act. It was the respondents position that section 89(5), together with the administrative practices developed by the Board in relation thereto, is in conflict with sections 2(b), 7,11(c) and (d) of the Canadian Charter of Rights amid Freedoms and cannot stand.
The respondent noted that section 2(b) of the Charter defines as a fundamental freedom, "the freedom of thought, belief, opinion and expression including the freedom of the press and other media of communication", and that the Board's jurisprudence makes the holding of certain beliefs or opinions or the expression of such by an employer as one of the cogent facts to be evaluated in the Board's determination of whether or not the employer has contravened the Act. The Board was referred to its established jurisprudence that a finding by it that the employer's conduct was in any part motivated by an anti-union animus results in the conclusion that the employer has contravened the Act. It is argued that such Board practice is contrary to section 2(b) of the Charter. The respondent also made reference to section 7 of the Charter which provides a right to everyone of "life, liberty and security of person
It was noted that section 11(c) of the Charter provides that "any person charged with an offence has the right ... not to be a witness in proceedings against that person in respect of the offence"; and that section 11(d) of the Charter provides for the right "to be presumed innocent until proven guilty". It was argued that section 895) of the Labour Relations Act interferes with the presumption of innocence by compelling the respondent to call evidence without first requiring the complainant to establish a prima facie case. And further, that the Board's jurisprudence in a case such as the instant one is that the failure of the employer to call evidence results in the conclusion by the Board that the allegations in the complaint will be taken as proved. It is argued that this places the respondent in the position that in order to answer the complaint involves a violation of its rights under the Charter.
The respondent noted that section 24(1) of the Charter clearly establishes that the enforcement of constitutional rights is a matter for a Court of competent jurisdiction. In the view of the respondent this created a conundrum in that the respondent cannot apply to the Courts for enforcement of its rights unless and until the Board concludes that, in the circumstances of the case, there is no right to be enforced. In the event the Board so concluded and decided to proceed the respondent could then be placed in the position by calling of evidence to be considered to have waived its rights which it cannot do.
The respondent referred the Board to its decision in International Ladies Garment Workers Union v. Third Dimension Manufacturing Limited, [19831 OLRB Rep. Feb. 261 as being the only reported decision of the Board dealing with the constitutional validity of section 89(5) of the Act. Counsel argued that the matter here had not been raised as a preliminary matter going to the Board's jurisdiction and that this panel should not consider itself bound by what were termed obiter statements in that decision. Moreover, counsel argued that the case on its face was wrong in law and should not be continued to be followed by the Board. Counsel was aware of a later Board decision, as yet unreported, in Board's files 2261-82-U, 2286-82-U, 2287-82-U, 2370-82-U in the case of The Constellation Hotel Corporation Ltd. but did not have that decision before him at the time of argument. [Note this decision has since been reported at [1983] OLRB Rep. Mar. 335.
The Board orally ruled, with Board Member E. J. Brady dissenting, against the respondent's position and was requested by counsel for the respondent to reduce such oral ruling to writing, which it now does. The Board was 'of the opinion that its decision in the case of The Constellation Hotel Corporation Ltd., establishes the Board's policy in the matter raised and deals with the issues raised in a definitive way and is one which this panel of the Board should follow. The Board noted that the procedural requirement for the employer to proceed first for reasons akin to those existing in arbitration cases of discharge or discipline, namely, that the employer is the party in most complete possession of the facts. The Board noted that the reverse onus is a matter of evidence and procedure and raises no presumption of guilt. The Board also noted that the burden is only triggered where there is no evidence before the Board or where the evidence before the Board is equally balanced.
Following the ruling the respondent noted that the Board had made no explicit reference to the effect of section 2(b) or section 7 of the Charter of Rights and Freedoms and on that ground requested the Board re-consider its ruling. The Board refused the request for re-consideration and stated that the submissions initially made by the respondent in respect to section 2(b) and 7 did not detract from its initial ruling.
A request for an adjournment by the respondent to permit it to apply to the Courts was denied, and the Board ruled it would proceed.
The complainant was granted leave to amend its Complaint by the following further particulars.
a) paragraph 33 to read "On or about February 17, 1983 at the Cherry Street store. Wayne Harrison. Assistant Manager, told several employees that he knew who had signed for the Union".
(b) paragraph 34 to read. "On or about March 4, 1983 the said Wayne Harrison worded a petition for distribution to employees which indicated that the employees did not wish a union to represent them
The respondent sought to have particulars in paragraphs 4, 5, 6, 7, 8, 9 of the complaint's particulars as having occurred six months ago prior to filing of the complaint. The Board was of the opinion that where, as here, the issue is a course of conduct the particulars should stand.
Paragraphs 11, 14 and 15 of the particulars relate to a previous complaint and its settlement to which the respondent objected as derogatory from the entire settlement process. The Board ruled that the particulars are limited to the existence of the prior complaint and the terms of settlement and not to go into the process or the reasons for settlement.
In paragraph 16 of the particulars the respondent sought clarification as to whether it was being alleged that the respondent had conspired with the named employee. The complainant clarified that its allegation is that the named employee was acting on behalf of the respondent.
The complainant stated that the facts in paragraphs 17, 18 and 19 of its particulars are pleaded to establish a course of conduct engaged in by the employer: and that paragraph 20 is merely a chronological fact. The complainant clarified that paragraph 23 is not alleging a violation of the Act but is pleaded to establish the fact that a complaint was made.
The proceedings were adjourned to 9:30 a.m. August 3rd, 1983.
The Board noted that the panel of the Board as presently constituted was not seized of the matter.
DECISION OF BOARD MEMBER, E. J. BRADY;
Mr. Gordon argued that section 89(5) of the Labour Relations Act can no longer be valid law in Ontario because of section 7 and section 11 of the Canadian Charter of Rights and Freedoms. His argument was persuasive and I agree with it.
I believe that section 11(c) and (d) of the Charter applies to offences under the Labour Relations Act, and not just to criminal matters. A party before our Board cannot be compelled to be a witness in proceedings against that party in respect of the offence and is entitled to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.