Paul Tremblay v. The Ontario Public Service Employees Union, 1984 CanLII 1064

[1984] OLRB Rep. February 247

1564-83-M Paul Tremblay, Steward, Local 350, OPSEU, Applicant, v. The Ontario Public Service Employees Union, Respondent Trade Union, v. Georgian College of Applied Arts and Technology, Respondent Employer

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: R. B. Carson and Paul Tremblay for the applicant; Paul J. J. Cavalluzzo, Brain Herlich and Frances Lankin for the respondent trade union; no one for the respondent employer.

DECISION OF THE BOARD; February 13, 1984

1. This is an application under section 53 of the Colleges Collective Bargaining Act for an exemption from paying certain union dues. The relevant provisions of section 53 provide:

2. -(1) The parties to an agreement may provide for the payment by the employees of dues or contributions to the employee organization.

(2) Where the Ontario Labour Relations Board is satisfied that an em­ployee because of his religious convictions or belief objects to paying dues or contributions to an employee organization, the Ontario Labour Rela­tions Board shall order that the provisions of the agreement pertaining thereto do not apply to such employee and that the employee is not re­quired to pay dues or contributions to the employee organization, pro­vided that amounts equivalent thereto are remitted by the employer to a charitable organization mutually agreed upon by the employee and the employee organization and failing such agreement then to such charitable organization registered as such under Part I of the Income Tax Act (Canada) as may be designated by the Ontario Labour Relations Board.

2. The applicant, Paul Tremblay, is a Teaching Master at Georgian College. His ap­plication is prompted by the formal position adopted on the issue of abortion by The Ontario Public Service Employees' Union, the trade union which acts as bargaining agent under the Colleges Collective Bargaining Act for the staff of the province's community colleges. Mr. Tremblay is a practicing member of the Roman Catholic Church, and religion is an important element in his life. He is presently a trustee representing separate school supporters at the secondary level of his local School Board.

3. Mr. Tremblay has long been active in his trade union as well. The style of cause framing his complaint is, of course, his own. He has been a division steward at the College since 1976, and is presently serving a term of stewardship which expires some time in 1984. His concern over the activities of OPSEU began with publication of a report on the abortion issue by Frances Lankin, OPSEU' s Equal Opportunities Co-ordinator, in the newsletter which OPSEU publishes for its members. That report set out to explain the "background concerns on the abortion question that makes it an issue for the labour movement". In so doing, it noted that the OPSEU caucus at the Ontario Federation of Labour's annual convention in No­vember '82 had voted in favour of a resolution on abortion which was essentially identical to that passed at the annual convention of the Canadian Labour Congress in May of the same year. The resolution of the Congress read:

WHEREAS it should be the fundamental right of each woman to choose when and if she will bear children; and

WHEREAS present Criminal Code restrictions affect the legality and availability of abortions, and highly organized campaigns are underway to further limit the right to choose; and

WHEREAS two-fifths of the population of Canada lives in communities not served by hospitals eligible to perform abortions; and

WHEREAS there is not a safe and effective method of birth control for each woman;

BE IT RESOLVED THAT the CLC endorses a woman's freedom of choice by supporting the right of women to full access to abortion; and

BE IT FURTHER RESOLVED THAT the CLC demand the removal of abortion from the Criminal Code; and

BE IT FURTHER RESOLVED THAT the CLC demand that free-stand­ing medical clinics providing abortions fully covered by provincial med­ical plans be established; and

BE IT FURTHER RESOLVED THAT the CLC reaffirm its policy on sex education, family life education and birth control.

Mr. Tremblay, and others who strongly oppose the liberalization of abortion, were very much disturbed at the reported position of the OPSEU caucus, and also at the pro-abortion posture which they felt Ms. Lankin's article had taken. Mr. Tremblay himself, in fact, was upset that OPSEU in its newsletter was dealing with the issue at all. Mr. Tremblay said that, as he was the steward, he accepted the responsibility to act as spokesman for the group, and to com­municate their concerns to the head office staff of the union. After a number of telephone calls, Mr. Tremblay wrote directly to the President, Sean O'Flynn, in May of 1983, setting out his group's complaints on the union's activities. Mr. Tremblay subsequently had the op­portunity to present these concerns directly to Mr. 0 'Flynn and other executive officers orally at OPSEU's head office. Mr. O'Flynn's response was that OPSEU itself had not taken a po­sition on the issue, and that the delegates to the OFL convention had voted according to their own conscience. Mr. 0 'Flynn added that the issue would be discussed at OPSEU ' s own con­vention in August, and that Mr. Tremblay would have the opportunity to address the con­vention himself. With respect to the article in the OPSEU Newsletter, Mr. Tremblay acknowledged in response to the executive officers' arguments that the freedom of speech of Ms. Lankin and other members of the Union justified such articles, so long as the purpose was educational only, and a balanced sampling of views was presented. Mr. Tremblay was not satisfied, however, with Mr. O'Flynn's explanation of the OFL convention, or of his view that the issue could properly be raised at OPSEU's own convention, where a formal position might be adopted. Mr. Tremblay accordingly laid charges under the union's constitution. These charges were directed specifically at OPSEU's delegates to the OFL convention, but were dis­missed as being out of time.

4. From this point, Mr. Tremblay directed his efforts to attempting to stop the abortion issue from being debated as a resolution at the OPSEU convention, which was scheduled for August 26 and 27. He filed with the union on July 29 a challenge to Mr. O'Flynn's inter­pretation of the union's constitution, on the grounds that from the point of view of members like Mr. Tremblay, abortion was not a "social, political or economic" issue of "common in­terest" to the members, in the words of the constitution. Rather, as Mr. Tremblay testified, it was "a strong religious issue that I thought the union should stay out of". Mr. Tremblay followed his challenge up with a typewritten brief, which he was permitted to present orally to the OPSEU Executive Board on the eve of the convention. The brief read:

PRESENTATION TO EXECUTIVE BOARD

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

The following presentation is a brief argument against consideration by OPSEU delegates at our Annual Convention of any formal resolutions related to the abortion issue, recognizing such resolutions for voting pur­poses infringes on the rights and freedoms of individual members and would contradict the union's constitution.

Because of the religious and moral aspects of this matter any decision to support or oppose abortion related activities should rest with each indi­vidual. It should not be subjected to a vote for the majority to establish a union position.

At this time I am unaware of the content of any pro or anti-abortion res­olutions, so my comments will be related to the O.F.L. resolutions and Frances Lankin's opinions as expressed in the article "The Abortion De­bate: Labour's View" in the March/April 1983 issue of OPSEU News.

Reading after the article sub-heading "Moral Arguments", members would probably agree that "at least many ... people who oppose abortion do so for religious reasons." There are strong scientific reasons for this position as well. This can be seen from the comments of a fetologist, Dr. B. Nathanson, in the attached items from "Campaign Life".

However, Ms. Lankin's statement of the basis for this moral stand is in­adequate. Throughout most other literature the anti-abortion position is consistently based on the belief that the fetus, the child-in-the-womb, is a distinct, living, human being. This young developing person is part of the continuum of life right from conception through old age.

A religious document arising out of Vatican II states this clearly for Cath­olics: "For God, the Lord of Life has conferred on men the surpassing ministry of safeguarding life — a ministry which must be fulfilled in a manner which is worthy of man. Therefore from the moment of con­ception life must be guarded with the greatest care, while abortion and infanticide are unspeakable crimes" (Pastoral Constitution on the Church in the Modern World).

People who profess a religion that recognizes a supreme Being under­stand that God has created a new human life in the woman's body through her interaction with the child's father. This belief means that the devel­oping person now has rights — including the right to life — which must be recognized and protected by the rest of the community. Such a view is in direct opposition to pro-abortion (pro-choice) statements. They pro­fess a woman's will, instead of God's decision, should determine if the unborn, dependent child will ever have the opportunity of an independent life.

This contrasting perspective can be seen in the initial premise and the O.F.L. resolution:

"Whereas it should be the fundamental right of each woman to choose when and if she will bear children;" and "The O.F.L. en­dorses a woman's freedom of choice by supporting the right of women to full access to abortion".

Those who believe that human choice should allow an adult to destroy a growing young life, even though it is protected and sustained by the woman's own body, are making a human will supreme. This is Atheism or Humanism with some accompanying religious precepts. However, those who preach it seldom admit that it represents another system of beliefs and morals.

Asking union delegates to vote on the abortion issue is equivalent to ask­ing their support for a religious position. Such an act would be unac­ceptable according to our Constitution.

Please consider Article 7.1(b) of Membership Rights: "Every member in good standing is entitled: ... to be treated with dignity and respect within the union." By voting for one side or the other in this debate, delegates are trying to set up a majority which will control union activ­ities. But it is an issue which should be left for individual decision and action because of its religious and moral aspects. The conference must demonstrate respect for all members, because all are covered by the "Canadian Charter of Rights and Freedoms" which states that:

“…….Canada is founded upon principles that recognize the supremacy of God ..." and subsequently " ... Everyone has the following fun­damental freedoms:

a/ freedom of conscience and religion;

b/ freedom of thought, belief, opinion,…..”

As members of institutions in Ontario all delegates should be prepared also to respect other members' rights under the Ontario Human Rights Code which states in its preamble:

"Whereas recognition of the inherent dignity and the equal and in­alienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ..."

from which follows,

“……public policy in Ontario . . . having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and

able to contribute fully to the development and well-being of the community.

A majority vote for either side on an abortion resolution will inevitably alienate a significant portion of our union community. Some will feel they can no longer participate in actions arising from such a decision. De­mocracy was not meant to entrench divisions by overriding the individual on issues where a personal decision is appropriate.

In reviewing Article 4.1(c), "The aims and purposes of the union shall be ... to advance the common interests, economic, social and political, of the members and of all public employees wherever possible, by all appropriate means." It is hard to justify a "common interest" classifi­cation for the religious and moral aspects of this problem. There is ob­vious opposition rights in the items published in OPSEU News.

On this basis~ I request that the Executive Board advise the Convention Chairperson that no resolutions are to be entertained on the abortion is­sue. The subject should be handled as an educational discussion, not as part of the "business of the convention". (See Article 12.11.7)

Thank you for considering this position.

Paul Tremblay

Steward, Local 350

The Executive Board received Mr. Tremblay's brief without comment and, as Mr. Tremblay was not a delegate to the convention nor prepared to debate this matter as a resolution, un­dertook to fill him in after the convention.

5. Resolution 41, the OPSEU resolution dealing with abortion, did get to the floor of the convention in the days that followed. How that happened was explained to the Board by Maxine Jones, an area Vice-President for OPSEU, working at St. Clair College. Ms. Jones was present on the Executive Board when Mr. Tremblay delivered his brief, and also per­formed the role of chairperson on the Resolutions Committee for the 1983 convention. Ms. Jones explained that all resolutions for the convention must be submitted by the Locals to the Committee 30 days prior to the convention. The committee then has two functions — and only two — apart from identifying matters that ought to have been directed to the constitutional committee. It ensures that the requirements for a quorum were met at the time that the res­olution was initially passed by the Local, and it assigns the resolution a priority ranking on the convention list. Once on the list, therefore, only the availability of time will determine whether a resolution actually reaches the floor for discussion at a particular convention. Apart from the question of priority, in other words, the Resolutions Committee is given no power under the OPSEU constitution to "screen" resolutions on the basis of appropriateness. The Resolutions Committee prepares a "first report" several days prior to the convention, listing in order the first group of resolutions which they will be bringing to the floor. The Committee then meets again the day prior to the convention and prepares a "second report", made up of a back-up group of resolutions to be brought to the floor if time permits.

6. Resolution 41 was not considered appropriate for inclusion in the "first report" of the Resolutions Committee. When the time came to prepare the "second report", the Com­mittee voted 5 to 3 against bringing it forward in that report as well. Once at the convention, however, the list of resolutions in both Committee reports as disposed of, and one of the del­egates on the floor moved that Resolution 41 be brought forward for consideration. The Res­olution was then referred to the Resolutions Committee, so that it could make its customary recommendation as to whether it felt the members ought to adopt or reject the Resolution. Ms. Jones (a member of Mr. Tremblay's own parish before she moved to Windsor) felt that the issue had too much emotional content for many of the members, and persuaded her Com­mittee to let the Resolution go forward without a recommendation. She testified that she is not aware in her own experience of that ever having been done before.

7. Once on the floor, Resolution 41 continued to encounter procedural roadblocks. Two members immediately moved an objection to the Resolution being considered. That was put to a vote, and the majority voted in favour of not considering it. However, under OPSEU's constitution, a motion to block consideration requires a two-thirds' majority, and the vote was only 360 to 205 in favour of stopping it. Resolution 41 was therefore considered. After what Ms. Jones describes as a half-hour of "rational, impressive debate", Resolution 41 was put to a vote, and carried, 294 to 171. As can be seen, significantly fewer delegates chose to vote on the Resolution itself than had participated in the vote not to consider it. The Resolution was in the same form as that adopted by the CLC convention, except that in place of the CLC's last paragraph, Resolution 41 read:

Be it further resolved that the Equal Opportunities co-ordinator prepare a series of three columns for OPSEU News which will explain the prob­lems women face in obtaining a safe, legal abortion; and the reasons why it is important for the trade union movement to take a public stand on this issue.

Mr. Tremblay was advised of the result following the convention, and apart from filing the present application, has filed charges under OPSEU's constitution against Mr. O'Flynn and the rest of the Executive Board, as well as the 1983 convention chairman and the Resolutions Committee, for allowing Resolution 41 to be considered. Those charges are still pending, but raise the issue from a different perspective than the present application.

8. With respect to the present application, Mr. Tremblay concedes that for some, abor­tion is a social or political issue. But for others, like himself, he feels most strongly that the issue is religious. The value of human life, at any stage, he explained, is a fundamental tenet of the teachings of his Church. Advancement of the concept of abortion, in the terms of OP­SEU's Resolution 41, cuts, in the view of Mr. Tremblay, at the very roots of his religious beliefs. As his written brief confirmed, he is very much opposed to his trade union dealing with the issue of abortion at all, and he has no wish to be drawn into an open debate on something which he considers highly personal to himself. He has, however, been persuaded by the arguments of officers of OPSEU that the "freedoms" of other members of the union, including freedom of speech, entitle them to debate the issue of abortion and set forth their views if they wish. From this he is prepared to acknowledge as well the trade union's right to use its newsletter as a forum for discussion, so long as it is only that, and is not used to specifically promote one point of view over another. Acknowledging these freedoms of others, in other words, Mr. Tremblay has been able to reconcile his religious beliefs with everything except the actual expenditure of funds, to which he himself has contributed, on pro-abortion activities. In drafting his application, therefore, Mr. Tremblay was prepared to limit his claim to an exemption only for that portion of his dues, however minor, which may fairly be at­tributable to Resolution 41. If that is not possible, Mr. Tremblay indicates that he has no op­tion but to request the Board to grant him a full exemption from the mandatory dues deduction of Article 12 of his collective agreement. It is apparent that Mr. Tremblay does this reluc­tantly, but he states that the conflict in which he finds the activities of his trade union have placed him with the principles of his religion would leave him no other alternative.

9. The Board's traditional test for the granting of a "religious exemption" under either section 53 of the Colleges Collective Bargaining Act, or section 47 of the Labour Relations Act, is set out, for example, in the case of Helen Wybenga, [1976] OLRB Rep. Aug. 422:

(a) are the beliefs sincerely held;

(b) are they religious;

(c) are they the cause of the objection to paying union dues?

The respondent did not take everyone's time by arguing that Mr. Tremblay is not sincere in his beliefs on abortion, or that, in the case of Mr. Tremblay at least, those beliefs are not "religious". The case before us therefore is this: one way or another, a resolution was adopted by the general membership of the union in convention, authorizing the expenditure of col­lected dues in a manner that is fundamentally at odds with the religious principles of the ap­plicant, and prompting the present application. The evidence of Frances Lankin as to what has happened to Resolution 41 since its passage is of interest, but before examining that, it is appropriate to consider the grounds upon which the respondent argues that the applicant has not brought himself within the scope of section 53.

10. The respondent argues, firstly, that the Board ought to construe section 53 narrowly, and find that the exemption only exists for those individuals who are opposed to trade union­ism in general. The respondent has candidly placed the earlier decision of Klaas Stel, [1971] OLRB Rep. July 363, before the Board, but argues that the Board should depart from the contrary conclusions arrived at in Stel, and the cases that have followed it, and that it should prefer the approach taken by the British Columbia Labour Relations Board, as evidenced, for example, in that Board's decision in Cliff Straub, (1976) 1 Can. LRBR 261.

11. Apart from an examination of the precise language of section 47 of the Labour Relations Act (which does in fact differ from that of section 53 of the Colleges Collective Bargaining Act), the Board expressed its conclusions in Stel in the following terms:

12. Section 35a [now 47], in the limited circumstances set out in sub­section 2, appears to us to be designed to give job security to those em­ployees whose religious convictions or beliefs come into conflict with the union security provisions of a collective agreement. To construe the sec­tion to mean that job security is only open to employees who object to joining all trade unions because of their religious convictions or beliefs and not to an employee who objects, on the same grounds, to joining a particular trade union would not appear to be in accord with "such fair, large and liberal construction and interpretation" as those words are used in section 10 of The Interpretation Act. Particularly is this so when, as we found above, the section is open to the construction contended for by the applicant and, further, when there is nothing either in the section jt­self or, when viewed in relation to other sections of the Act, which would compel us to the other point of view.

Stel has been the law in Ontario for more than 12 years, and nothing in the choice of words of the Legislature in section 53 of the Colleges Collective Bargaining Act leads us to a dif­ferent conclusion on the meaning of that section. Once again, the section reads:

53. -(1) The parties to an agreement may provide for the payment by the employees of dues or contributions to the employee organization.

(2) Where the Ontario Labour Relations Board is satisfied that an em­ployee because of his religious convictions or belief objects to paying dues or contributions to an employee organization, the Ontario Labour Rela­tions Board shall order that the provisions of the agreement pertaining thereto do not apply to such employee and that the employee is not re­quired to pay dues or contributions to the employee organization, pro­vided that amounts equivalent thereto are remitted by the employer to a charitable organization mutually agreed upon by the employee and the employee organization and failing such agreement then to such charitable organization registered as such under Part I of the Income Tax Act (Canada) as may be designated by the Ontario Labour Relations Board.

(3) No agreement shall contain a provision which would require, as a condition of employment, membership in the employee organization.

While the Legislature could have (and probably should have) used the word "the" before "employee organization" in subsection 2, as it did in subsection 1, since only one trade union is designated as the bargaining agent for all employees under the Colleges Collective Bar­gaining Act, we think the use of "an" is more likely a result of following the language al­ready contained in section 47 of the Labour Relations Act, than of a conscious attempt to depart from the latter's well-established meaning. We can see no compelling reason why the Legislature, under either Act, would, as a matter of logic, insist that an employee demonstrate to the Board an irreconcilable conflict that goes any further than the trade union with whom (because of the collective agreement requirements) he has a problem. To the extent that the employee is being "selective" in his views, the exemption is only a "religious" one, and the employee's credibility is always a matter upon which the Board must satisfy itself. The British Columbia case cited to us, on the other hand, appears to rest its conclusion on an analogy with "conscientious objectors" to the military draft in the United States. Even assuming that that is an appropriate parallel to the issue before us, the British Columbia decision forms its conclusion without any examination of the foundation for "conscientious-objector" exemp­tions in that country, or any judicial decisions thereon, and is not by itself compelling.

12. The respondent moves from there to a number of arguments on "remoteness". It points, firstly, to the decision of the Board in Adams Mine, [19821 OLRB Rep. Dec. 1767, in which the Board noted that, for a trade union's activities to be accorded the specific pro­tection of the Labour Relations Act, those activities must be more than just "legitimate" or lawful: they must also not be "too remotely connected to the dominant purpose of the Act" [i.e., collective bargaining with employers]. The respondent points out that the conduct com­plained of by the applicant does in fact go beyond "the dominant purpose of the Act". From there it argues that, since the Board has said that the trade union with respect to this activity will not be entitled to the protections of the Act, it ought not to be held vulnerable to an application for dues exemption under the provisions of the Act either. The Board does not find this argument compelling. It is one thing for the Board to find that a trade union, by its own act, can take itself temporarily outside the protection of the Labour Relations Act; it is quite another for the trade union to argue that an individual, because what the trade union has done exceeds the scope of its ordinary mandate, ought to be denied relief from the re­ligious conflict which the trade union itself has caused him. Indeed, the fact that the present activity lies outside the "dominant purpose" for which the trade union has been formed (and dues deducted) was precisely Mr. Tremblay's point, when he initially launched his challenge under the respondent's constitution. As in Adams Mine, supra, the Board does not suggest that the adoption by a trade union of positions on timely social or political issues offends any general law of the province, and we recognize that the pressure to do so may be very strong. Whether it is appropriate or not to adopt a stand on such issues will generally be a matter for the trade union itself to pass judgment on. But in making that judgment, the trade union can also be expected to take into account the downside risks which inhere in that form of activity. One risk obvious to any trade union is the potential for divisiveness and alienation within the membership, as a greater or lesser proportion, of the members may find themselves in disagreement with the stand that "their trade union" has adopted. But there are other risks continually present as well, and one of these, at least under the wording of the Colleges Col­lective Bargaining Act, is the express accommodation granted under section 53 on the basis of religious belief. If, in light of current activities, that section is to be written out of the Act, it appears to us appropriate that that be done through a process other than administrative interpretation.

13. The respondent also relies on the recent decision of the Board in Humber College, re Jacob Emmanuel Schochet, [19831 OLRB Rep. Sept. 1472. But there the applicant, also a member of OPSEU employed at a community college, was complaining about a resolution (concerning the State of Israel and the Palestine Liberation Organization) adopted at the annual convention of the Ontario Federation of Labour. All that the applicant could say about OPSEU was that it had had delegates at the convention, and that it had not specifically denounced the resolution subsequent to the convention. (The Board in that latter regard observed that the resolution essentially died its own death when it was rejected by the Canadian Labour Con­gress shortly thereafter.) Apart from any other problems with that application, the Board in Schochet concluded that the applicant's objections were "entirely too remote in relation to the respondent trade union" to support the application. But that case, on the point of OPSEU's involvement, stands in such stark contrast with the present as to be almost supportive of Mr. Tremblay's application. And unlike the case of Dr. Schochet, Mr. Tremblay is not seeking in any way to mobilize trade union support for the opposite point of view: he does not want his trade union to deal with the question of abortion at all.

14. A further argument of the respondent on remoteness focusses on the applicant's re­quest that, if possible, only that portion of his dues allocable to the abortion activities be ex­empted. The respondent argues that an individual member cannot pick and choose amongst the trade union's policies: he either rejects the trade union or he does not. The respondent submits that the fact that Mr. Tremblay is willing to stay within the trade union and continue to be active, if only he can be granted a nominal exemption of his dues, undermines the le­gitimacy or credibility of his application.

15. Mr. Tremblay '5 counsel clearly contemplated this line of attack when he observed that the present application's biggest strength is also its biggest weakness. Had the applicant not tried to reduce his claim on a rational basis to specifically that which offended him, he would not have had to face this kind of a challenge. He could, in other words, have simplified his case simply by asking for a total exemption. But, as counsel points out, the fact that he has not done so also underscores the sincerity of his position. Mr. Tremblay's attempt to reach a fair accommodation removes any skepticism that he could be an individual seeking to use his religious beliefs as an excuse to divert his support from a trade union that he simply does not like. Rather, it is apparent that Mr. Tremblay is an individual with a strong belief in both the teachings of his Church and the work of his trade union, earnestly searching for a way to reconcile the two. There is nothing in the section, or the Board's jurisprudence, to suggest that an applicant's objections must extend to all activities of the trade union. If the conflict with the applicant's religious principles is in fact confined to one specific area of the trade union's activities (and a peripheral area at that), the Board has difficulty finding that the fact that the applicant would be content with no more of an exemption than is necessary to elim­inate the conflict should lead the Board to dismiss his application. Indeed, the Board cannot help but note how closely Mr. Tremblay 's approach to apportionment in relation to this pe­ripheral trade union activity parallels the practice which we are aware has been adopted in both Great Britain and the United States, with respect to activities of a comparable nature, (Trade Union Act, 1913 (2 & 3 Geo. 5 c.30, s.3); International Association of Machinists v. Street, (1961) 48 LRRM 2345 (U.S.S.C.); Brotherhood of Railway and Steamship Clerks v. Allen, (1963) 53 LRRM 2128 (U.S.S.C.); Abood v. Detroit Board of Education, (1977) 95 LRRM 2411 (U. S.S. C.)). All that the applicant's position demonstrates is that the focus of his conflict is a narrow one. But if that conflict is as irreconcilable and as fundamental to the applicant's religious beliefs as we find to be the case here, we find no basis for concluding that the applicant's predicament does not fall squarely within that class of cases for which the exemption has been made available.

16. On the basis of the findings of fact we have made, therefore, we do not find that Mr. Tremblay 's willingness to accept apportionment undermines his application in any way. Given the actual language of section 53, however, it may be that the only order that the Board could make in the event we do find an irreconcilable religious conflict to exist, would be that "the provisions of the agreement ... do not apply". In that event, it would, of course, remain open to the trade union and the applicant to work out some voluntary arrangement on ap­portionment that would satisfy the applicant, as in fact has been the approach favoured by the Supreme Court of the United States in the comparable circumstances referred to supra.

17. This brings us finally to the Charter of Rights argument, developed briefly by the respondent in defence of the application. The issue is the extent to which freedoms guaranteed under the Charter, such as the freedom of speech, association and religion, of trade union members different in interest from Mr. Tremblay, may impose limitations on the way section 53 can be given effect to; or, put differently, the balance to be struck by adjudicators amongst these potentially-competing freedoms themselves. Of the various elements of the Charter re­ferred to, it is the respondent's argument on the freedom of speech of the trade union and its constituent members which causes us the most concern. Mr. Tremblay has, however, con­ceded that accommodation of the freedom of speech of other members of the union ought to permit those members to express themselves in the manner they wish, and he has effectively dropped his complaints in that regard. Even the publication of articles in the OPSEU News­letter, he ultimately conceded, could not be cause for complaint, so long as they essentially endeavour to present a balanced sampling of opinions, and thus are written solely from an educational point of view. Mr. Tremblay's complaint, therefore, has been reduced to the spe­cific expenditure of funds, to which he has contributed through his dues, for purposes fun­damentally inconsistent with his religious beliefs.

18. What are the expenditures about which Mr. Tremblay has expressed concern? He points, firstly, to the costs of the annual convention attributable to debate on the "abortion" resolution. But that debate, it seems to us, would fall within the "freedom of speech" area already conceded by the applicant, notwithstanding that that debate fell within the "business" portion of the convention. His complaint, therefore, must be with the adoption of the Res­olution itself. And it is only the final paragraph of that Resolution to which Mr. Tremblay, for the purposes of his request for apportionment, has ultimately taken exception: it is only that paragraph which can be said to contemplate an actual expenditure of funds, and which therefore crosses the line that Mr. Tremblay, after struggling to reconcile the freedoms of oth­ers with his own, has drawn in his mind. And that is what makes of significance the evidence of the respondent, through Ms. Lankin, as to the present status of the articles authorized to be written. It is the evidence of Ms. Lankin (and we accept that evidence) that neither time nor funds have yet been expended on the proposed articles, because she and the persons to whom she reports at OPSEU have not yet decided what format these articles will take, or how the various views on the subject are to be presented. In light of this, it cannot fairly be said that the line which Mr. Tremblay himself has drawn has yet been crossed.

19. It follows, therefore, that the specific application before us is premature, and must be dismissed, without prejudice, obviously, to Mr. Tremblay's right to re-file should further developments warrant.

20. The application is dismissed.