[1983] OLRB Rep. March 335
File No. 2261-82-U; File No. 2286-82-U; File No. 2287-82-U; File No. 2370-82-U Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Complainant, v. Constellation Hotel Corporation Ltd. Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and Stewart Cooke.
APPEARANCES: S. Wahl and F. DaSilva for the con2plainant; Stewart D. Saxe, William Watson and Valerie Meil for the respondent.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER STEWART COOKE; March 28, 1983
These are consolidated complaints under section 89 of the Labour Relations Act, alleging that a number of employees of the respondent have been laid off or discharged for union activity.
The respondent admits that the grievors named in the complaints had been its employees, and that all have had their employment terminated. The respondent takes the position, however, that it ought not to be directed, in accordance with the Board's usual practice, to proceed to call its evidence first. It relies in adopting this position on section 11(d) of the Canadian Charter of Rights, which it says renders void section 89(5) of the Labour Relations Act. Section 11(d) of the Charter reads:
Any person charged with an offence has the right ... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
and section 52(1) of the Charter provides:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Section 89(5) of the Labour Relations Act provides:
On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
Mr. Watson, on behalf of the respondent, argues that the requirement of the Board under section 89(5) for an employer to proceed with its evidence first violates the principle of "innocent until proven guilty" enshrined in section 11(d) of the Charter. He points out that the term "person", under either the Ontario or Federal Interpretation Act, is made to include a corporation, such as the present respondent, although he also notes that uncertainty presently exists amongst legal scholars as to whether either of those Acts can be said to apply to the Charter. Noting that section 11(d) speaks of a person "charged with an offence", Mr. Watson points out that the Charter makes no distinction between "criminal" or federal offences and provincial ones. Counsel points further to section 96(1) of the Labour Relations Act as containing a clear recognition that any violation of the Act constitutes an "offence" under the Act. He acknowledges that provision is made for the Board to issue its consent prior to any prosecution being undertaken in Provincial Court under the Act, but argues that this does not in any way detract from his submission that a finding of a violation of the Act by anyone empowered to do so (in this case, the Board itself) finds an "offence" under the Act. Finally, Mr. Watson argues that even if reference be had to the words "criminal and penal matters" in the marginal notes as an aid in interpretation (a course which Mr. Watson points out, under the Interpretation Acts, is not appropriate) the Board's remedies under section 89 can in some instances be described as "penal". The only instance which counsel cites in support of this is a wage-compensation order by the Board which requires an employer to, in effect, pay twice for the same work.
This is not the first attack upon section 89(5) which the Board has seen since the Charter was proclaimed in force. In Third Dimension, 11983] OLRB Rep. Feb. 261, the Board wrote:
It should be stressed that neither the Board nor the courts have ever viewed a complaint under section 89 of the Act as being penal or quasi-criminal. Section 96 makes specific provision for the prosecution of offenses under the Act. A prosecution arising out of an alleged offense under the Act can be taken only with the consent of the Board granted pursuant to an application under section 101(1) of the Act. Consent is granted only where a triable issue or prima facie case is established and where the Board is satisfied that the prosecution will "serve the interests of the bargaining relationship between the parties or generally advance the interests of collective bargaining in the Province". (Fleck Manufacturing Company, [1978] OLRB Rep. July 615.) Any prosecution for an offense under the Act must be initiated by information pursuant to the Provincial Offences Act, R.S.O. 1980, c.400, s.24 and heard by a provincial offences Court. Section 89 of the Act and the reverse onus provision have no application in those proceedings.
The remedial authority of the Board under section 89 is directed to very different purposes. Part of the thrust of the 1975 amendments to the Labour Relations Act was to provide greater scope for civil redress, as an alternative to criminal prosecutions, in the resolution of unfair labour practice complaints. The broad remedial authority given to the Board in section 89 represents a conscious policy choice to give the Board the jurisdiction to fashion the kinds of civil remedies that will best advance the purposes of the statute. Since the 1975 amendments a party seeking consent to prosecute has a substantial burden, given the Board's presumptive view that the remedies available under section 89 are, generally, more constructive than a criminal prosecution in the promotion of good industrial relations, (A.A.S. Telecommunications Ltd., [1976] OLRB Rep. Dec. 751 at 761).
With that purpose in mind the Board has consciously refrained from allowing its remedial orders to become in any way punitive. (Radio Shack, [1979] OLRB Rep. Dec. 1220.) As the decision in Radio Shack, as confirmed by the Court, (Sub. nom. Re Tandy Electronics Ltd. and United Steelworkers of America, (1980) 1980 CanLII 1738 (ON HCJ), 30 OR. (2d) 29 (Div. Ct.)) made clear, any relief ordered by the Board on a finding of an unfair labour practice under section 89 of the Act must be compensatory and not punitive. As the Court observed at p. 47 (O.R.):
So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself, then the award of damages is within the jurisdiction of the Board.
Section 89 of the Act has, therefore, been consistently viewed by the Board, with the approval of the courts, as remedial and not
punitive legislation. The purely civil and remedial nature of the Board's jurisdiction under section 89 raises good reason to doubt whether the presumption of innocence which applies to the prosecution of offences under the Charter of Rights can have any bearing on unfair labour practice complaints under that section.
The Board having turned its mind to this issue and rendered a decision, it would not be inclined to entertain the issue a second time, unless it is shown that some pertinent argument can be made that was not available to the Board in the earlier case. In this regard the respondent relies on the Reasons for Judgment of the Ontario Court of Appeal in Her Majesty the Queen v. Oakes, which were released February 2, 1983, (leave to appeal to Supreme Court of Canada granted March 21, 1983) and which were not made available to the Board in Third Dimension, supra. But the Oakes case dealt with the connection between "proved" and "presumed" facts in a reverse-onus provision in criminal proceedings under the Narcotics Control Act; it did not consider the issue of what constitutes an "offence" under the Charter. The Oakes case does not, therefore, affect the above-cited reasons of the Board in Third Dimension. Section 96(1) of the Labour Relations Act provides:
- (1) Every person, trade union, council of trade unions or employers' organization that contravenes any provision of this Act or of any decision, determination, interim order, order, direction, declaration or ruling made under this Act is guilty of an offence and on conviction is liable.
(a) if an individual, to a fine or not more than $1,000 or
(b) if a corporation, trade union, council of trade unions or employers' organization, to a fine of not more than
$10,000.
The word "offence" is not suggested to have any independent significance outside of the context of section 96 (and the related sections which follow it), and that section provides that "every person . . . that contravenes any provision of this Act ... is guilty of an offence and on conviction is liable.. ." The section then goes on to provide for the levels of penal consequences, by way of fines, which may flow from such conviction. This, indeed, appears to be the sole purpose of section 96(1), in considering the matter of what are termed "offences" under the Act; i.e., to provide for the penal consequences which are to flow in the event of a conviction. And it is acknowledged by the respondent that only the Provincial Court can make such a conviction. No "conviction" of an offence, as the words appear in section 96, can be made in proceedings before the Board. Indeed, the prosecution in Provincial Court of an "offence" under section 96(1) requires, even after the consent of the Board in section 101, a complete trial de novo, as noted in Third Dimension, supra. The principle of "innocent until proven guilty" is well known to the penal law of this and related jurisdictions, as noted, e.g., in Her Majesty the Queen v. Oakes, supra, and did not begin with passage of the Charter of Rights. It is worth noting, in conclusion therefore, that the Legislature of the Province, in enacting section 89(5) of the Labour Relations Act, chose not to extend the reverse onus to the prosecution of offences in Provincial Court, notwithstanding that precisely the same allegations may be in dispute with the same practical arguments in favour of having the employer proceed first. As to whether a corporation is a person" for the purposes of the Charter, now see PPG Industries Canada Ltd. v. AG of Canada (B.C. C.A.), released February 4, 1983, as yet unreported, (leave to appeal to Supreme Court of Canada granted March 21, 1983).
- The respondent will be directed to proceed first with its evidence when hearings resume, in accordance with the Board's normal practice as described, for example, in ICB Warehousing, [1976] OLRB Rep. Oct. 621.
DECISION OF BOARD MEMBER F. W. MURRAY;
- While I accept the responsibility to uphold the Ontario Labour Relations Act and the Ontario Labour Relations Board's responsibility to administer this Act, I cannot help but feel that the Courts are the proper forum for decisions concerning the application of such legislation as the Charter of Rights and of issues where the Charter and some other Act appear to be in direct conflict. This is particularly so when the Board has already dealt with the issue. (See, Third Dimension [1983] OLRB Rep. Feb. 261)