International Ladies' Garment Workers' Union v Third Dimension Manufacturing Limited, 1983 CanLII 983

[1983] OLRB Rep. February 261

1058-82-U International Ladies' Garment Workers' Union, Complainant, v Third Dimension Manufacturing Limited, Respondent

BEFORE: M. G. Picher, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: B. Fishbein, T Abrahams and D. Ubogi for the complainant; Philip J. Wolfenden and Milton Wallace for the respondent.

DECISION OF THE BOARD; February 22, 1983

1. This is a compla-nt under section 89 of the Labour Relations Act. The grievor, Mr. Daniel Ubogi, maintains that he was dismissed by the respondent because of his union sympathy, contrary to the Labour Relations Act.

2. The respondent is a manufacturer of ladies clothing located in Toronto. The grievor was employed by the respondent from May of 1980, working as a cutter of blouses at the time of his termination. It is common ground that Mr. Ubogi was a good employee, both from the standpoint of discipline and the quality of his work. The respondent maintains that on August 11, 1982 he was laid off because of a lack of work and that, in the face of his lay-off, he quit his employment.

3. Some time before his termination the grievor had two separate encounters with members of management concerning the representation of the respondent's employees by the complainant trade union. Mr. Milton Wallace, president of the respondent, admitted in evidence that in April of 1982, at or about the time he received notice of the union s intention to bargain a renewal of its collective agreement, he approached the grievor and asked him to take steps to terminate the union's bargaining rights. During that conversation, which took place in the shipping area of the respondent's premises, Mr. Wallace told the grievor that he would be given any time necessary for organizing a petition of termination. He also told him that he would be paid for any lost time in attending to the filing and hearing of the application for termination before the Board.

4. According to Mr. Ubogi's account of the conversation Mr. Wallace stated that if he needed a lawyer he should come and see him. Mr. Wallace admitted that he may have said something about a lawyer, specifically that he suggested that Mr. Ubogi would need legal counsel, but that he did not undertake to pay for the cost of a lawyer. In our view that difference in their testimony is relatively immaterial. It is plain from the evidence before the Board that the respondent's president violated the Labour Relations Act by encouraging, and to some degree undertaking to subsidize, an employee application for the termination of the complainant's bargaining rights. It is also plain from the evidence that Mr. Ubogi did not, at that time or at any subsequent time, accept or encourage Mr. Wallace's invitation.

5. The invitation was extended once again. During the month of May in 1982 Mr. Ubogi was approached by Sevil Pollak, Vice-President of the respondent. Ms. Pollak spoke with the grievor at his work station, saying that she had received a letter from the union giving notice to bargain. She commented that she did not see why the employees needed a union and asked him why he did not try to do something to get the union out. Mr. Ubogi then responded that he was sorry but that there was nothing he could do.

6. When negotiations subsequently commenced between the respondent and the union the grievor appeared as a member of the union's bargaining committee. No further approaches were made to him with respect to the union's bargaining rights. On August 10, 1982, the termination issue re-emerged. On that day a number of employees left their work place and came to the Board's offices at 400 University Avenue where they filed an application and petition for the termination of the complainant union's bargaining rights. The grievor did not accompany the employees or sign their petition. The next day, August 11, 1982, Mr. Ubogi's employment was terminated.

7. There is some conflict in the evidence as to what transpired with respect to the cessation of the grievor's employment. The unchallenged evidence establishes that the grievor was called into the office of his foreman at approximately 3:00 p.m. and was told that he would be laid off for two or three days. Another employee was told the same thing. Mr. Ubogi then went to Mr. Wallace's office to get further information about the lay-off, apparently his first.

8. According to Mr. Ubogi's account when he asked Mr. Wallace how long the lay-off would last he was told that it would be a matter of two, three or perhaps four weeks. He then told his employer if the lay-off was to be that long he wanted his U.I.C. papers. Mr. Wallace then stated that that would be no problem and together they walked to the office where the president of the respondent issued instructions that Mr. Ubogi's papers be prepared. When Mr. Ubogi returned the next day he was given a U.I.C. termination slip and all holiday pay owed to him by the respondent.

9. The evidence of Mr. Wallace is that when the grievor came to his office and stated that he wanted his U.I.C. papers he concluded that Mr. Ubogi was quitting. By his account his instructions to prepare Mr. Ubogi's documentation were based on that belief.

10. The evidence of Mr. Thomas Abrahams, Business Agent of the complainant, casts some doubt on the testimony of Mr. Wallace respecting his view of Mr. Ubogi's intentions. It appears that on Monday, August 23, 1982, Mr. Abrahams met with Mr. Wallace and raised the issue of Mr. Ubogi's lay-off, asking when he would be recalled. According to Mr. Abrahams' testimony, which went largely unchallenged, Mr. Wallace then said that Ubogi had come to get his papers and that he did not know whether he had quit or was laid off. He then told Abrahams that he would look into the matter further. The next conversation between Abrahams and Wallace on this subject occurred on August 27, 1982 over the telephone. At that time, according to Abrahams' evidence, denied by Wallace only to the extent that he could not recall it, Mr. Wallace told the union representative that Mr. Ubogi could return to work on the 1st or 2nd of September. In fact, the grievor was not called back on those dates. When nothing came of Mr. Wallace's words the instant complaint was filed on September 2, 1982. It is plain that from that date, if not from August 23, 1982 the respondent was aware that Mr. Ubogi did not intend to quit and was actively seeking to return to work.

11. Notwithstanding these events on September 18, 1982, the respondent placed an advertisement in the Toronto Star for vacancies in the position of full-time cutters. Ubogi was not recalled even at that point. Counsel for the respondent submits that the failure to recall Ubogi at that time cannot prejudice the respondent's position in this complaint. He submits that the section 89 complaint being outstanding at that time, with some negotiations between the parties for the terms of Mr. Ubogi's reinstatement then being outstanding, there was no obligation to offer him the first vacancy. We have serious difficulty with that proposition. The mere fact that a complaint has been filed before the Board does not alter the obligations of the parties under the Act. The refusal to reinstate an employee when others are being hired may constitute a continuation of a violation of the Act which can be the subject of the Board's inquiry notwithstanding that a complaint was pending at the time.

12. The respondent could, without any cost or prejudice to itself, have offered the grievor the first available vacancy in its shop without admitting liability in the instant complaint or incurring any obligation to compensate the grievor. If, as the respondent maintains, Ubogi was an exemplary employee against whom it harbored no anti-union sentiment, the employer had every reason to offer him the first opportunity to resume his employment. This is particularly true where the failure to do so could compound the respondent's financial liability for retroactive compensation in the event that this complaint should succeed. No offer of reinstatement or of rehire was made to the grievor.

13. The employer cannot effectively place the grievor in a worse position to gain reinstatement merely on the basis that he filed a complaint with the Board. An employer's violation of the Act can be ongoing; the duty not to discharge becomes a duty to reinstate or, in other words, to cease to refuse employment to an employee who has been terminated contrary to the Act. To that extent a failure to offer re-instatement to an admittedly good employee when new employees are being hired can be admissible evidence going to an employer's overall motive. In the instant case new employees were hired after September 18, 1982, but the grievor was not, at a time when there could be little reason to maintain the belief that he had quit and no valid reason whatever to deny him employment.

14. The foregoing facts leave many questions unanswered. While Mr. Wallace's evidence is that department foremen are left considerable discretion in judging the need and length of a lay-off, no explanation was given why the grievor's supervisor, Mr. Russo, told him that his lay-off would be for two or three days while at the same time Mr. Wallace told him that it could be for as much as four weeks. No financial or sales figures were adduced to justify Mr. Wallace's projection, and it appears that in fact the other employee laid off the same time as the grievor was recalled within three days. Even after the grievor did everything possible to disabuse Mr. Wallace of any belief that he had quit, no acceptable reason was advanced for the continued refusal to reinstate or rehire him even though vacancies were filled by new employees.

15. In our view, in trying to understand these events, the fact that an application for the termination of the union's bargaining rights was pending, and that the respondent on two occasions sought unlawfully to recruit the grievor in the commission of an unfair labour practice that would have rid the respondent of the union, are not neutral factors. The grievor was obviously in a position to give evidence that might be severely prejudicial to the application for termination. Placing an employee in the grievor's position on indefinite lay-off would obviously give him reason to consider whether his future re-employment would be more likely if he were willing to forget his past conversations with Mr. Wallace and Ms. Pollak about the union. On the totality of the evidence the Board is satisfied that the respondent intended to leave the grievor in that uncertain position for the duration of the termination application. We are satisfied, on the balance of probablities, that that was the motive for his lay-off and for the failure to reinstate or rehire him.

16. In his argument counsel for the respondent submitted that his client was prejudiced in that the reverse onus provision of section 89(5) of the Act is contrary to the provisions of section 11(d) of the Charter of Rights and Freedoms in the Canada Act.

17. Section 89(5) of the Labour Relations Act provides as follows:

(5) On an inquiry by the Board into a complaint under subsection (4) that a person had been refused employment, dis­charged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of 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

18. Section 11(d) of the Charter provides that:

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.

19. Section 11(d) of the Charter is an application to the criminal law of the general legal principle that "he who avers must prove". The submission of the respondent, which was not extensively elaborated in argument, is that section 89(5) of the Act creates a reverse onus which is contrary to the rights guaranteed by section 11(d) of the Canadian Charter of Rights and Freedom. The objection is a novel one and raises two issues: firstly whether the objection is well-founded, and secondly, the approach which a tribunal like the Board should take when it is asked, in effect, to declare that a provision of its own statute is unconstitutional.

20. We deal with the second issue first. The Charter of Rights and Freedom establishes for Canadians rights which are of fundamental importance and which must be respected at every level of the legal process. All who administer the law are necessarily governed by its requirements and protections. Policemen and prosecutors, for example, must be guided by the rights of a person subject to a criminal charge and arrest. The courts and tribunals like this Board are governed by the guarantee of fundamental justice enshrined in section 7 of the Act. In that sense this board must interpret and abide by the Act in its day-to-day proceedings, being ever mindful of the legal paramountcy of the Charter as reflected in the provisions of section 52(1) of the Canada Act:

52.(l) 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.

21. For many years the National Labour Relations Board has taken the position that it should decline to pass on a challenge to the constitutionality of any provision of the National Labour Relations Act. It's first reported comment in that regard appears to have been made in re Rite Form Corset Co, Inc. and United Steelworkers of America C.I.O. (1947) 75 NLRB 174, 21 LRRM 1011. In that case the Board was asked to declare, among other things, that sections 9(f) and (h) of the National Labour Relations Act, which barred hearings by the Board of representation cases brought by unions which failed to comply with certain registration and disclosure provisions under the Act, were unconstitutional. The Board applied the sections and dismissed the applica­tions stating (at 21 LRRM 1012):

As an administrative agency of the Federal Government, it is inappropriate for the Board to pass upon questions regarding the constitutionality of Congressional enactments. Such questions will be left to the courts. In the absence of any court decision to the contrary, the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States, as alleged by the petitioner.

(See also (1982) Delta Airlines 111 LRRM 1159, Pet Inc. 244 NLRB 96, (1979) 102 LRRM 1046, Great Western Broadcasting Corp. 150 NLRB 467, (1964) 58 LRRM 1019.

22. The approach of the N.L.R.B. does not appear to us to be compelling or appropriate in the context of the law of Canada. In our view the imperatives of section 52(1) of the Canada Act are inescapable; that cornerstone section imposes a duty on all bodies charged with the good faith administration of laws to insure that the laws which they apply and the procedures by which they are administered are not inconsistent with the provisions of the Constitution. Moreover in the past this Board, like other labour boards in Canada, has had a meaningful role to play in the framing and resolution of constitutional issues. In numbers of cases in the past the Board has been required to make determinations as to whether particular applications or complaints before it fall within the federal or provincial heads of jurisdiction under the British North America Act. In so doing it must inevitably examine both that statute and the judicial precedents which have interpreted its provisions.

23. A recent decision of the Supreme Court of Ontario, Windsor Airline Limou­sine Services Ltd., (1980) 30 OR. (2d) at 734-35 (Div. Ct.) has affirmed that when a constitutional issue is raised before the Board it should not merely throw up its hands and pass the matter directly to the courts. The Court took the view that the legal process is better served if the Board makes the pertinent findings of fact and comments on the labour relations and constitutional ramifications of the facts as found, with appropriate reference to the authorities. The Board's approach, effectively endorsed by the Court, was stated as follows in its decision in Windsor Airline Limousine Services Ltd. [1980] OLRB Rep. Feb. 272 at 274:

When faced with a challenge to its constitutional jurisdiction the Board has a clear duty to consider and rule on the challenge, and in so doing to recite and analyze the facts as thoroughly as possible. Clear findings of fact, with some comment on the ramifi­cations of the facts for industrial relations policy, will assist the courts in the event of a judicial review of the Board's determination. As the Board put in the Dry Bulk Forwarders Ltd. [1974] OLRB Rep. Sept. 629 at 632:

The Courts are the great equalizers in the application of constitutional law principles, but neither they nor the parties should be denied the viewpoints of the inferior tribunals —viewpoints based upon the viva voce evidence that comes before them. Only in this way can the courts meaningfully assess the facts upon which the constitutional law principles must be applied.

24. The fundamental approach to be followed in cases of this kind was touched upon by the Supreme Court of Canada in the Nova Scotia Board of Censors v. McNeil 1975 CanLII 14 (SCC), [1976] 2 S.C.R. 265. In that case a private citizen challenged legislation by which a provincial film censorship board purported to prohibit the showing of a film entitled "Last Tango in Paris". The preliminary issue of the individual's standing to bring an application for such a declaration found its way, over several years, through two levels of court reviews in Nova Scotia and ultimately, to the Supreme Court of Canada. The Court upheld the individual's right to challenge the legislation. As a practical result, after the expense of considerable time and money, with no determination on the merits of his original application, the individual was left only with the right to return to the court of first instance, for a decision subject to still further appeals, on the merits of his original application for a declaration that the legislation was ultra vires the Province.

25. In the face of that result the Supreme Court of Canada expressed the view that dealing with the issue of standing in the abstract, without any finding of fact or close analysis of the statute involved, is less than desirable both from the standpoint of the ability of an appellate court to resolve important issues of constitutional principle out of context, and from the standpoint of the successful party who may thereby be forced to trek through the trial and appeal process twice. Speaking for the Court at p. 267 Laskin, C.J.C. commented:

... The merits were not reached because of certain preliminary objections which were raised for prior determination. Of these the most important one, and the only one meriting consideration by this Court, was the question of the respondent's locus standi, his standing or status to impeach the constitutional validity of the provincial statute.

In granting leave, this Court indicated that where, as here, there is an arguable case for according standing, it is preferable to have all the issues in the case, whether going to procedural regularity or propriety or the merits, decided at the same time. A thoroughgoing examination of the challenged statute could have a bearing in clarifying and disputed question on standing.

26. In our view the foregoing passages point the way to be followed by this Board when forced with a challenge to its jurisdiction based on the Canadian Charter of Rights and Freedoms. In the months and years to come the Charter will be subjected to the refining process of Court review through a progression of individual cases in many branches of the law. This Board, like all tribunals, will be required to be aware of the judicial interpretation of the Charter's provisions and to respect and apply those interpretations in its day-to-day affairs. In our view the Board is no less required to interpret and apply the terms of the Charter of Rights and Freedoms merely because the process of judicial interpretation of that governing document is in its infant stages. On the contrary, for the reasons related above we are confirmed in the view that the process of the elaboration of the Charter in the Courts will be better served, as will the Board's duty to faithfully apply the Charter's provisions, if the Board strives to make determinations in jurisdictional challenges on constitutional grounds, whether relating to the traditional heads of federal and provincial power or to the Canadian Charter of Rights and Freedoms. The Board's determination will, of course, be subject to the review of the Court, whose task will hopefully be assisted by the Board's analysis.

27. We therefore turn to the merits of the challenge of section 89(5) of the Act by the respondent. Section 89 is the general section by which the Board is empowered to fashion a range of civil remedies to redress the unfair labour practices of employers, employees, unions and other individuals. Section 89 provides, in part:

89.-(l) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organiza­tion, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organiza­tion, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

28. 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.

29. 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).

30. 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) 30 O.R. (2d) (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 and Freedoms can have any bearing on unfair labour practice complaints under that section.

31. By introducing the reverse onus provision into section 89 of the Labour Relations Act in 1975 the Legislature imported into the Board's procedures a principle already well rooted in labour law. In arbitral jurisprudence the principle was well established that in discipline cases the onus is on the employer to prove, on the balance of probabilities, that the grieving employee was disciplined or discharged for just cause. (International Nickel Company (1968) 1968 CanLII 1211 (ON LA), 19 L.A.C. 397 (Schiff).) In this regard arbitral authority has followed the common law; it has for some time been the rule in actions for wrongful dismissal that once an employee has proved hiring and dismissal, the defendant employer has the burden of proving that the dismissal was for just cause (Butler v CNR 1939 CanLII 124 (SK CA), [1940] 1 DLR 256 (Sask. C.A.); see also, generally McGlyne, Unfair Dismissal Cases (2nd ed.) (London 1979), Harris, Wrongful Dismissal (Toronto, 1978).)

32. Placing the onus on the employer, and requiring the employer to proceed first in the arbitration of discipline cases may be justified on the theoretical basis that in fact the employee has created just cause for discharge or discipline by conduct inconsistent with his contract of employment. On that basis the proof of just cause can be said to lie with the employer who, in effect, asserts a breach of the employee's contract. A more practical justification for the reverse onus rule is the simple fact that the employer is the party with complete knowledge of the grounds for an employee's discharge or discipline. Absent the most extensive written explanation for the company's action, a discharged employee would, at arbitration, be in the problematic position of having to disprove a negative. It has therefore long been accepted in labour arbitration that the employer, which has exclusive knowledge of the reasons for discipline or discharge, is better placed to satisfy any evidentiary onus that can apply in the arbitration of an ensuing grievance (Massey Ferguson Industries Limited, (1969) 1969 CanLII 1489 (ON LA), 20 L.A.C. 178 (Weatherill) at 179-80).

33. The same general principles apply to the reverse onus which comes into play under section 89(5) of the Act where it is 'alleged that an individual has been dealt with contrary to the provisions of the Act by his or her employer. Under that section the employer has the onus of establishing that it did not act contrary to the Act. It is not the function of the Board to decide whether there was just cause for discharge or discipline, but to determine whether the employer applied some sanction to the employee because he or she supported a union or sought to exercise any other rights under the Act. (Toronto Star, [1971] OLRB Rep. Sept. 582; Mount Forest Caskets Limited, [1980] OLRB Rep. June 853).

34. The reasons for a discharge, discipline, layoff, transfer, demotion or any other such action are best known by the party that imposed it. Implicit in the requirement of a reverse onus is the realization that it would be procedurally unfair to require an employee to prove the motive for his discharge. The very question at issue, why an employee was discharged, disciplined or otherwise dealt with by his employer, •is best answered by the party which made the decision. The Board has stated that to discharge the onus under section 89(5) the employer has to satisfy two requirements. Firstly it must bring forward all of the reasons which motivated its discharge of an employee and, secondly, it must establish that anti-union animus played no part in its reasons. As a matter of evidence the onus comes into play only when the evidence is evenly balanced, at which point it tips the scale in favour of the complainant (The Barrie Examiner, [1975] OLRB Rep. Oct. 745). As a practical matter the Board, like boards of arbitration, has ruled that generally the reverse onus is better applied by requiring the employer to proceed first in the hearing of a section 89 complaint (I. C. B. Warehousing Division of Alar-Anson, [1976] OLRB Rep. Oct. 621). The Board, with the endorsement of the Court, has found that the failure of an employer to call any evidence upon the hearing of a section 89 complaint results in the conclusion that the allegations made in the complaint must be taken as proved. (Windsor Airline Limousine Services Ltd., (supra).)

35. Initial fears that the reverse onus might work a hardship on employer respondents and force them to litigate when the specific charges against them were unclear have not, in our experience, been borne out. Since its earliest decisions involving the reverse onus the Board has held complainants to strict standards of particularity in their allegations to avoid any prejudice, hardship or surprise to respondents who are required to discharge the reverse onus. Moreover in the arbitra­tion of discharge cases the empirical evidence appears to demonstrate that at least to the extent of establishing cause for some discipline, employers are more successful than grievors, notwithstanding the reverse onus there applied. (See Adams, Grievance Arbitration of Discharge Cases, Industrial Relations Centre, Queen's University at Kingston, 1978, at pp. 42-3.)

36. The reverse onus provision in section 89(5) of the Labour Relations Act is both purposive and historically rooted. For the reasons canvassed above, it is consistent with the more efficient advancement of the policies of the Act, and is in keeping with the extensive experience of the civil courts in wrongful dismissal cases and boards of arbitration in discipline cases generally. Nor is it inconsistent with the general precepts of due process or natural justice in civil cases. The location of the burden of proof does not prevent either party in a complaint before the Board from being fully and fairly heard. In practical terms, as the Board's decision in The Barrie Examiner indicates, the reverse onus provision has a bearing only in that small minority of cases in which the evidence is so evenly balanced that no precise determination can be made on the balance of probabilities.

37. In our view, for all of the foregoing reasons, the provisions of section 89(5) of the Act do not contravene the presumption of innocence provisions of the Charter of Rights and Freedoms. That provision is expressly stated to apply to the prosecution of "offences", and is therefore intended to operate in the realm of criminal proceedings. Complaints under section 89 of the Labour Relations Act are civil and remedial, not criminal and penal, and that part of the Charter does not apply to them. We are likewise satisfied that section 89(5) is in keeping with established common law principles which can in no way be said to be contrary to the rules of natural justice or to the principles of fundamental justice preserved and protected by article 7 of the Charter of Rights and Freedoms.

38. It should be added that in the disposition of the instant complaint the Board has had no recourse to the burden of proof. This is not an instance in which the evidence is evenly balanced; the Board is satisfied that the evidence against the respondent is overwhelming and that it can dispose of this complaint without any recourse to the reverse onus.

39. For the foregoing reasons the Board found that the grievor, Daniel Ubogi, was discharged and denied reinstatement contrary to the provisions of section 66(a) of the Act. The Board was also satisfied that the respondent sought both through its solicitation of the grievor and through the discharge of Mr. Ubogi to unlawfully interfere with the administration of the complainant union contrary to section 64 of the Act. By a telegram dated December 13, 1982, the Board ordered that Mr. Ubogi be reinstated, forthwith with compensation for wages and benefits lost, with interest, and without loss of seniority. The respondent was further ordered to cease and desist from any effort to initiate, promote or otherwise encourage the termination of the complain­ant union's bargaining rights, or from any conduct which otherwise interferes with the rights of its employees or of their trade union under the Act. The respondent was further ordered to post copies of the attached notice marked "Appendix", duly signed by the respondent's representative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive days. The respondent was ordered to take reasonable steps to insure that the said notices are not altered, defaced or covered by any other material.

40. The Board remains seized of this complaint to resolve any matter arising out of the interpretation of its order.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE UNION PARTICIPATED.

THE BOARD FOUND THAT WE VIOLATED THE LABOOR RELATIONS ACT BY UNLAWFULLY TERMINATING AND REFUSING TO REINSTATE MR.DANIEL UBOGI . THE BOARD ALSO FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY ENCOURAGING MR UBOGI TO START A PETITION TO TERMINATE THE UNION'S BARGAINING RIGHTS.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THE FOLLOWING RIGHTS;

TO ORGANIZE THEMSELVES,

TO FORM, JOIN, AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF

A TRADE ANION,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OF THESE THINGS,

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT SO ANYTHING THAT INTERFERES WITH THESE RIGHTS;

WE WILL NOT FIRE OR LAYOFF EMPLOYEES BECASE THEY HAVE JOINED

THE UNION AND HAVE PARTICIPATED IN ITS LAWFUL ACTIVITIES,

WE WILL NOT ENCOURAGE EMPLOYEEOSTO INITIATE PETITIONS TO

TERMINATE THE UNION'S BARSAINING RIGHTS.

WE WILL COMPLY WITH THE FOLLOWINO DIRECTIONS OF THE ONTARIO LABOUR RELATIONS

BOARD:

1. TO GIVE MR, UBOGI HIS JOB BACK IMMEDIATELY WITH COMPENSATION FOR WAGES AND BENEFITS LOOT, WITH INTEREST, AND WITHOUT LOSS OF SENIORITY,

2. TO STOP ENCOURAGING EMPLOYEES TO TERMINATE THE UNION'S BARGAINING RIGHTS,

3. TO STOP DOING ANYTHING THAT INTERFERES WITH THE RIGHTS

OF OUR EMPLOYEES OR THE UNION UNDER THE LABOUR RELATIONS

ACT.

THIRD DIMENSION MANUEACTURINU LIMITED

PER: (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED THIS 13TH day of DECEMBER 1892