[1985] OLRB Rep. August 1293
1740-84-R Ontario Public Service Employees Union, Applicant, v. Sault College of Applied Arts and Technology, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. Stamp and W F. Rutherford.
APPEARANCES: Ian McGilp, Dianne Wintermute, Ivor Oram and Dev Matharu for the applicant; F. G. Hamilton and R. Wright for the respondent.
DECISION OF THE BOARD; August 12, 1985
1This is an application for certification in which the union "OPSEU" seeks to represent a group of the respondent's part-time employees. The respondent takes the position that the Board has no jurisdiction to deal with the case. The respondent asserts that it is a "Crown Agency" and that, therefore, it is not covered by the Labour Relations Act. The union asserts the contrary. The union further argues that even if the respondent is a Crown Agency, any impediment to this Board's jurisdiction to consider this application has been removed by the adoption, in 1981, of the Canadian Charter of Rights and Freedoms ("the Charter"). We shall deal with each of these arguments in turn.
Is the Respondent a Crown Agency?
2This is not the first time that the Board has had to consider whether a college of applied arts and technology is a Crown agency. That issue was definitively decided, in the affirmative, in a series of decisions in the late 1960's (see in particular: Fanshawe College of Applied Arts and Technology, [1967] OLRB Rep. Dec. 829). The union argues that these cases were wrongly decided and that, in any event, there have been significant changes in the legislative framework governing community colleges which would now warrant a different result.
3In Fanshawe, the applicant union was the Civil Service Association of Ontario ("CSAO"), the predecessor of the present applicant. CSAO was seeking to represent what would now be described as a "support staff" unit of community college employees, excluding both academic staff and managerial personnel. There, as here, the respondent college asserted that it was a Crown agency. The college relied upon the extensive authority reserved to the Minister under what was then section 14a of the Department of Education Act (R. S.O. 1960, c.111, as amended by S.0. 1965, c.28) and the criteria set out by the Court of Appeal in Regina v. Ontario Labour Relations Board ex parte Ontario Food Terminal Board, (1963) 1963 CanLII 299 (ON CA), 38 D.L.R. (2d) 530. In that case, the Court held that whether or not an entity is a Crown agent depends upon a number of factors including: the nature of the functions performed, the benefit for whom the service is rendered, and the nature and extent of the powers entrusted to it. However, in the Court's view, the primary consideration was the nature and degree of control exercised or retained by the Crown. At the time, section 14a of the Education Act read as follows:
14a.-(l) Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, name, maintain, conduct and govern colleges of applied arts and technology that offer programmes of instruction in one or more fields of vocational, technological, general and recreational education and training in day or evening courses and for full-time or part-time students.
(2) The Minister shall be assisted in the planning, establishment and co-ordination of programmes of instruction and services for such colleges by a council to be known as the Ontario Council of Regents for Colleges of Applied Arts and Technology composed of such members as may be appointed by the Minister.
(3) There shall be a board of governors for each college of applied arts and technology, which shall be a corporation with such name as the Minister may designate and shall be composed of such members and have such powers and duties, in addition to those under The Corporations Act as varied by the regulations, as may be provided by the regulations, and each board shall be assisted by an advisory committee for each branch of a programme of instruction offered in the college other than programmes of instruction referred to in subsection 5.
(4) For the purposes of subsection 1 and subject to the approval of the Minister, a board of governors may enter into an agreement with any organization representing one or more branches of industry or commerce or with any professional organization.
(5) Subject to the approval of the Minister, a board of governors of a college may enter into an agreement with a university for the establishment, maintenance and conduct by the university in the college of programmes of instruction leading to degrees, certificates or diplomas awarded by the university.
(6) The cost of the establishment, maintenance and conduct of a college shall be payable until the 31st day of March, 1966, out of the Consolidated Revenue Fund, and thereafter out of moneys appropriated therefor by the Legislature and out of moneys received from Canada for the purposes of technical education or other programmes of instruction of the college, moneys contributed by organizations that have entered into agreements with the board of governors of the college, fees paid by students and moneys received from other sources.
(7) Without restricting the generality of section 12, the Minister, subject to the approval of the Lieutenant Governor in Council, may make regulations with respect to colleges of applied arts and technology,
(a) providing for the composition of the Ontario Council of Regents for Colleges of Applied Arts and Technology;
(b) providing for the composition of the boards of governors on a suitably representative basis and of the advisory committees thereof and for the appointment of the members of such boards and committees;
(c) prescribing the powers and duties of boards of governors and advisory committees, the manner of calling and conducting the meetings thereof and the procedure for the election or appointment of chairmen and officers;
(d) prescribing the type, content and duration of programmes of instruction to be offered;
(e) prescribing the requirements for admission to any programme of instruction, and prescribing the terms and conditions upon which students may remain in, or be discharged from, any programme of instruction;
(1) for the granting of certificates and diplomas of standing following successful completion of any programme of instruction;
(g) prescribing the qualifications and conditions of service of members of the teaching staffs of such colleges;
(h) providing for the payment of travelling allowances or expenses to members of the Ontario Council of Regents for Colleges of Applied Arts and Technology, boards of governors and advisory committees, and of the officers and employees of such colleges;
(i) requiring students to pay registration, tuition and laboratory fees in respect of any programme of instruction, and fixing the amounts and manner of payment thereof;
(j) providing for the admission of persons from outside Ontario, and prescribing fees payable by such persons in respect of any programme of instruction and the manner of payment thereof;
(k) providing for the incorporation of schools established under section 14 with such colleges.
(8) No regulation made under subsection 7 applies to a university or to programmes of instruction given by a university in such colleges.
The employer argued that under section 14a the Minister retained fundamental control over the establishment, funding, programmes and governance of a community college, and that, therefore, the college was a Crown agency to which the Labour Relations Act had no application.
4The Board in Fanshawe College considered the decision in Ontario Food Terminal, comparing and contrasting the facts in that case with those in other Crown agency cases, such as, Metropolitan Meat Industry Board v. Sheedy [1927] A. C. 899; Governors of the University of Toronto v. Minister of National Revenue 1950 CanLII 254 (CA EXC), [1950] Ex.C.R. 117; Jamieson 's Food Limited v. Ontario Food Terminal 1961 CanLII 3 (SCC), [1961] S.C.R. 276; City of Halifax v. Halifax Harbour Commissioners [1935] S.C.P. 215; Simmons v. Niagara Parks Commission 1945 CanLII 125 (ON HCJ), [1945] O.R. 326; Bank Voor Handel En Scheepvaart N. V. v. Administrator of Hungarian Property [1954] 1 All ER. 969; and Fox v. Newfoundland Government [1898] A. C. 672. We do not think it is necessary to repeat that analysis here. It suffices to say that the Board then turned its attention to the situation at hand, and the effect of section 14a of the Education Act:
Having in mind the test of the degree of control and the manner in which it has been applied in the above cases, let us now consider the powers vested in the board of governors of the respondent college. Section 14a of The Department of Education Act provides that the board of governors are to have such powers and duties, in addition to those under The Corporation Act "as varied by the regulations, as may be provided by the regulations." (Each college, we would mention is a corporation). The board of governors can enter into agreements with organizations representing industry, commerce or professional organizations and universities. This authority, however, is subject to the approval of the Minister of Education. The cost of the establishment, maintenance and conduct of the colleges is to be paid out of moneys appropriated therefor by the Legislature and out of moneys received from other sources, i.e., the Federal Government, other organizations and fees. The Minister, subject to the approval of the Lieutenant-Governor-in Council, has authority among other things to make regulations with respect to the colleges, including the appointment and composition of the board of governors, its powers and duties, all aspects of the program of instructions, admission and diploma requirements and the qualifications and conditions of service of the teaching staff. By the regulations passed under section 14a, the program of education proposed by the board of governors must be approved by the Council of Regents (which is also appointed by the Minister subject to the approval of the Lieutenant-Governor-in-Council). The Council of Regents may alter or modify the recommendations of the board of governors, and in turn any proposals or recommendations must be approved by the Minister. In the case of a building program, while the board of governors may choose the site and employ an architect, all plans and estimates of costs of construction ultimately must be approved by the Minister. Finally, while the board of governors may appoint a director of the college, principals for divisions of the college, a registrar, bursar, administrative, teaching and non-teaching staff as required, their salaries and wage rates are established by the Council of Regents and must be approved by the Minister.
The above abbreviated description of the authority of the board of governors of the respondent college and the limitations placed upon that authority is analogous to the powers possessed by the Commissioners of the Halifax Harbour Commissioners and the Niagara Parks Commission and is even more restricted, in our view, than the authority given to the Custodian of Enemy Property. In short, the statute establishing the board of governors gives them little independent discretion. All of their actions to a very substantial degree are subject to direct or indirect control by either or both the Council of Regents and the Minister. We accordingly are of the opinion that at common law the respondent is a servant or agent of the Crown.
The Crown Agency Act R.S.O. 1960 c. 81 defines a Crown agency in section 1 as follows:
In this Act "Crown Agency" means a board, commission, railway, public utility, university, manufacturing, company or agency owned, controlled or operated by Her Majesty in right of Ontario, or by the Government of Ontario, or under the authority of the Legislature or the Lieutenant Governor in Council.
This Board in the Ontario Food Terminal Board Case (supra) expressed the view that the Crown Agency Act was enacted by the Legislature solely to clarify the position of a Crown agency as a servant or agent of the Crown and was simply restating what constituted an agent of the Crown under the common law. Accordingly, this Board was of the opinion that it was not really necessary for it to consider the Act. Since it had been argued in that case, however, that the Ontario Food Terminal Board did not fall within the definition of a "Crown Agency" as defined in the Act the Board did give consideration to the meaning of the words "owned, controlled and operated" in the definition. While not giving an overall interpretation to these words, the Board concluded that the Ontario Food Terminal Board was not a "Crown Agency" as defined in Section 1 of the Crown Agency Act. The position which we adopt in the instant application is the same as that of the Board in the Ontario Food Terminal Board Case, in that we are not really called upon to make a finding as to the position of the respondent under the Crown Agency Act. Having regard, however, to the high degree of control exercised by the Minister over the respondent college, there is ample evidence to support a finding that the respondent is a "Crown Agency" within the meaning of the Act.
In the result, the Board determined that it did not have jurisdiction to entertain the certification application because the Labour Relations Act did not apply to a Crown agency. The Board reached a similar conclusion in George Brown College of Applied Arts and Technology, [1968] OLRB Rep. May 165, and Centennial College of Applied Arts and Technology, [1968] OLRB Rep. May 170. So did the Court in Canadian Imperial Bank of Commerce v. Monette; Board of Governors of Algonquin College of Applied Arts and Technology, Garnishee 1971 CanLII 424 (ON HCJ), [1972] 1 O.R. 407, where it was held that the Divisions Courts Act, R.S.O. 1960, c. 110 did not apply to the respondent college because it was a Crown agency.
5The affairs of community colleges are no longer governed by the Education Act. The relevant statute is now The Ministry of Colleges and Universities Act, R.S.O. 1980, c.272. The powers set out in what was once section 14a of the Education Act, can now be found in sections 5 and 7 of the Ministry of Colleges and Universities Act:
5.-(l) Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, name, maintain, conduct and govern colleges of applied arts and technology that offer programs of instruction in one or more fields of vocational, technological, general and recreational education and training in day or evening courses and for full-time or part-time students.
(2) The Minister shall be assisted in the planning, establishment and co-ordination of programs of instruction and services for such colleges by a council to be known as the Ontario Council of Regents for Colleges of Applied Arts and Technology composed of such members as may be appointed by the Lieutenant Governor in Council.
(3) There shall be a board of governors for each college of applied arts and technology, which shall be a corporation with such name as the Minister may designate and shall be composed of such members and have such powers and duties, in addition to those under the Corporation Act as varied by the regulations, as may be provided by the regulations, and each board shall be assisted by an advisory committee for each branch of a program of instruction offered in the college other than programs of instruction referred to in subsection (5).
(4) For the purposes of subsection (1) and subject to the approval of the Minister, a board of governors may enter into an agreement with any organization representing one or more branches of industry or commerce or with any professional organization.
(5) Subject to the approval of the Minister, a board of governors of a college may enter into an agreement with a university for the establishment, maintenance and conduct by the university in the college of programs of instruction leading to degrees, certificates or diplomas awarded by the university.
(6) The cost of the establishment, maintenance and conduct of a college shall be payable out of moneys appropriated therefor by the Legislature and out of moneys received from Canada for the purposes of technical education or other programs of instruction of the college, moneys contributed by organizations that have entered into agreements with the board of governors of the college, fees paid by students and moneys received from other sources.
(7) The Minister, subject to the approval of the Lieutenant Governor in Council, may make regulations with respect to colleges of applied arts and technology.
(a) providing for the composition of the Ontario Council of Regents for Colleges of Applied Arts and Technology;
(b) providing for the composition of the boards of governors on a suitably representative basis and of the advisory committees thereof and for the appointment of the members of such boards and committees;
(c) prescribing the powers and duties of boards of governors and advisory committees, the manner of calling and conducting the meetings thereof and the procedure for the election or appointment of chairmen and officers;
(d) prescribing the type, content and duration of programs of instruction to be offered;
(e) prescribing the requirements for admission of any program of instruction, and prescribing the terms and conditions upon which students may remain in, or be discharged from, any program of instruction;
(f) for the granting of certificates and diplomas of standing following successful completion of any program of instruction;
(g) prescribing the qualifications and conditions of service of members of the teaching staffs of such colleges;
(h) providing for the payment of travelling allowances or expenses to members of the Ontario Council of Regents for Colleges of Applied Arts and Technology, boards of governors and advisory committees, and of the officers and employees of such colleges;
(i) providing for a payment of a per diem allowance to the members, except the chairman, of the Ontario Council of Regents for Colleges of Applied Arts and Technology;
(j) requiring students to pay registration, tuition and laboratory fees in respect of any program of instruction, and fixing the amounts and manner of payment thereof;
(k) providing for the admission of persons from outside Ontario, and prescribing fees payable by such persons in respect of any program of instruction and the manner of payment thereof.
(8) No regulation made under subsection (7) applies to a university or to programs of instruction given by a university in such colleges.
(9) The chairman of the Ontario Council of Regents for Colleges of Applied Arts and Technology shall be paid such remuneration and shall be entitled to such other benefits as may be determined by the Lieutenant Governor in Council.
- Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations,
(a) prescribing the terms and conditions under which awards or grants provided out of the moneys appropriated by the Legislature may be made to students enrolled in postsecondary institutions, prescribing the amounts of such awards and the methods of calculation thereof and the persons eligible therefor, defining the types, classes and sub-classes of awards and grants, fixing the maximum amount that may be awarded or granted to any applicant and authorizing the Minister to determine the amount, up to the maximum that may be awarded or granted, to an applicant;
(b) providing for the recovery of all or any of the moneys awarded or granted to any student enrolled or purporting to be enrolled in a post-secondary institution who was not eligible for the award or grant or who fails to comply with any of the terms and conditions under which such moneys were awarded or granted;
(c) providing for the apportionment and distribution of moneys appropriated or raised by the Legislature for university, college and other post-secondary educational purposes;
(d) prescribing the conditions governing the payment of legislative grants;
(e) defining "enrolment" and "student" for the purpose of legislative grants to post-secondary educational institutions recognized by the Minister for the purpose of such grants, and requiring that "enrolment" be subject to the approval of the Minister;
(f) prescribing forms and providing for their use;
(g) authorizing the Deputy Minister of Colleges and Universities or any officer of the Ministry to exercise the power to approve loans under section 8.
6It will be seen that the legislation is very similar to what it was in 1967. In addition, pursuant to Regulation 640 passed under the authority of the Ministry of Colleges and Universities Act, it is clear that the appointment of the Council of Regents and the board of governors of a college remains within the firm control of the Crown. Indeed, if anything, the influence of local municipal councils and the independence of the board of governors have been reduced. Recommendations as to the educational needs of the municipal area for which the college is established, must be submitted to the Minister for approval. The board of governors cannot deal with real property in any way without the written approval of the Minister. Plans for the construction of college buildings, as well as the process of tenders, are both subject to the approval of the Minister. The board of governors has the authority to appoint, classify, promote, suspend, transfer, or remove employees subject to salary and wage rates, and according to the terms and conditions established by the Council of Regents but only as approved by the Minister. Recommendations for new educational programmes at a college must also be approved by the Minister, as must any programme of instruction leading to a certificate or diploma, except those given by an accredited university.
7It appears to the Board that there have not been any legally significant changes in the legislative framework since the Board's decision in Fanshawe College. There has been a reorganization of ministerial responsibilities and some changes in detail, but the Minister retains a substantial degree of control over the operation of the colleges. The fact that the Minister may permit a degree of local autonomy, and may not be called upon to actively intervene very often, does not diminish his ultimate authority. We are unable to conclude, therefore, that Fanshawe was wrongly decided, or that the current statutory framework is sufficiently different to dictate a different result. The Crown retains a substantial degree of control over all important aspects of the colleges' operations. In our opinion, community colleges were, and remain, Crown agencies, to which the Labour Relations Act has no application.
8We are reinforced in this view by the legislative treatment of the employees of community colleges in the years following the Fanshawe decision. The evolution of collective bargaining legislation strongly suggests that the Legislature itself regarded the colleges as Crown agencies, and the employees of community colleges as a distinct class of Crown employee.
9As we have already noted, community colleges were initially created under and governed by the Education Act, which was then primarily concerned with the regulation of primary and secondary schools. The Act did not deal with collective bargaining matters. In 1971, the Legislature created the Department of Colleges and Universities (see The Department of Colleges and Universities Act, 1971, S.O. 1971, c .66). Again, there was no mention of employee collective bargaining concerns. In 1972, however, there was a flurry of legislative activity touching upon the collective bargaining interests of Crown employees. On June 23, 1972 the Legislature passed the Crown Employees' Collective Bargaining Act (S.O. 1972, c.67), which established collective bargaining rights for civil servants, but expressly excluded employees of community colleges. However, only a week later, on June 30, 1972, the Legislature adopted an amendment to the Ministry of Colleges and Universities Act, 1971 (S.O. 1972, c. 114) which provided that:
6a.-(l) In this section,
(a) "employee" means a person employed by a board of governors of a college of applied arts and technology but does not include,
(i) a person employed in a managerial or confidential capacity,
(ii) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and employed in a professional capacity,
(iii) a person who is employed on a casual or temporary basis unless he has been so employed continuously for a period of six months, or more, or
(iv) a person engaged and employed outside Ontario;
(b) "employer" means the Crown in right of Ontario.
(2) Except where inconsistent with this section, the provisions of The Crown Employees Collective Bargaining Act, 1972 apply mutatis mutandis to the employer, to all boards of governors of colleges of applied arts and technology and to all employees as if such provisions were enacted in and formed part of this section.
(3) The employer shall be represented in the case of boards of governors of Applied Arts and Technology by one or more persons appointed by the Ontario Council of Regents for Colleges of Applied Arts and Technology.
[emphasis added]
10The result of these amendments was that, for a time, the employees of community colleges were treated in the same manner as civil servants. Although they were "employed by a board of governors of a college", their ultimate employer was expressly said to be "the Crown". This framework was changed in July, 1975, when the Legislature passed the Colleges Collective Bargaining Act, 1975 (S.O. 1975, c.74), which established a comprehensive framework for collective bargaining for community college employees. In that Act, the employer is again referred to as the board of governors of a college, but there is no equivalent of section 6a(l)(b) of the predecessor legislation. However, the Colleges Collective Bargaining Act does not speak to the issue of whether community colleges are or remain Crown agencies, and there is nothing in the Act to indicate any change in their status. Nor do we think the union can derive much assistance from a comparison of the definition portions of these various statutes. Under section 1(1)(g) of the Crown Employees Collective Bargaining Act, 1972 (now R.S.O., 1980 c. 108), the term "employee means a Crown employee as defined in the Public Service Act but does not include.. .an employee of a college of applied arts and technology". Under section 1(e) of the Public Service Act (now R.S.O. 1980, c.418), the term "Crown employee means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro, or the Ontario Northland Transportation Commission". When read together, it certainly seems as if the Legislature was trying to make it clear that certain Crown employees, employed by particular Crown agencies - community colleges - would nevertheless be excluded from the Crown Employees Collective Bargaining Act, and, of course, in the case of community college employees, the Legislature was passing companion legislation to deal with them. The fact that the legislation did not deal with all of them does not mean that they were any less Crown employees, nor that the colleges were not Crown agencies; moreover, it would be rather odd if the colleges were Crown agencies for all purposes except negotiations for certain part-time employees. It appears to us that section 6a(l)(b) in the transitional legislation, supra, was intended to be declaratory of the legal status quo and we do not think its omission from the later legislation respecting collective bargaining for colleges~ altered the status of these educational institutions or their employees. On balance, therefore, we are of the view that the Legislature continued to regard the community college staff as a special category of Crown employee, working for a Crown agency and warranting special legislative treatment.
11For the foregoing reasons, we are not persuaded that the Fanshawe decision is wrongly decided, or that the changes to the relevant statutes since 1967, dictate a different result. We do not think the Labour Relations Act applies to the employees of a community college. It remains to be determined whether the passage of the Constitution Act, 1981 and the adoption of the Canadian Charter of Rights and Freedoms ("the Charter") alters that conclusion.
The Charter Issue
12The union argues that if the part-time community college employees are not covered by the Labour Relations Act, then by design or inadvertence, the Legislature has abridged their fundamental right to freedom of association guaranteed by section 2(d) of the Charter. The employees are not covered by the Labour Relations Act because that statute cannot apply to Crown agencies without specific legislative provisions to that effect. Section 11 of the Interpretations Act, R.S.O. 1980, c.219) reads as follows: "No Act affects the rights of Her Majesty, Her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby". No such provisions exist. But, the part-time employees of community colleges are also excluded from both the Crown Employees Collective Bargaining Act and the Colleges Collective Bargaining Act (see sections l(l)(g) and Schedule 2(VI), respectively). As a result, this group of part-time employees has no legislative protection or mechanism available to them should they seek to form a trade union or participate in collective bargaining. They have been left out. They have no certification process, no statutory right to strike, no protected right to organize, and no clear remedy should their employer discriminate against employees who join a trade union or seek to bargain collectively.
13The union argues that the absence of such legislative protection seriously interferes with the employees' freedom of association guaranteed by the Charter. Counsel for the union argues that the Board should apply section 2(d) of the Charter to "read down" (i.e. ignore) section 11 of the Interpretations Act, insofar as it has the effect of excluding part-time community college employees from coverage by the Labour Relations Act. Counsel argues that when section 11 is "read down" in this way, any impediment to this Board's jurisdiction will be removed because the part-time employees will then be covered by the Labour Relations Act.
14The ambit of section 2(d) of the Charter has recently been the subject of considerable judicial debate. The present legal situation is by no means clear. The Ontario Courts have taken a relatively liberal view, suggesting that the Charter protects a broad range of employee rights to organize and bargain collectively (see Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home et al., (1983) 1983 CanLII 1928 (ON HCJ), 44 O.R. (2d) 392). The Federal Court of Appeal has taken a narrower view, holding that collective bargaining, as such, is not protected at all by the guarantee of freedom of association (see Public Service Alliance of Canada v. The Queen in Right of Canada, 84 CLLC, 14,053; and to the same effect see the decision of the British Columbia Court of Appeal in Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 58 et al., 84 CLLC, 14,036). Furthermore, as a matter of historical fact, collective bargaining predated collective bargaining legislation. It has both existed and even flourished in some situations, without any legislative support at all. Teachers for example, have bargained collectively and successfully prior to the passage of the School Boards and Teachers Collective Negotiations Act in 1975. Until the 1970's, collective bargaining in England was subject only to common law rules. However, we do not think it is necessary to speculate about the extent of the constitutional protection for freedom of association. Even assuming that the absence of collective bargaining legislation infringes upon the right to freedom of association for part-time community college employees, we do not think that this means that this Board has jurisdiction to entertain this certification application.
15We do not doubt that the Constitution is the supreme law of Canada or that any law inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect (see section 52 of the Constitution Act, 1981). Nor do we doubt that in administering its constituent statute the Board must have regard to Constitutional guarantees, and should interpret the provisions of its own Act in light of those guarantees. But it is one thing to consider the Charter as an aid to interpretation of the Labour Relations Act, or even to decide that a provision of the Labour Relations Act is inconsistent with Charter guarantees. It is quite another to suggest that the Board should apply the Charter to selectively "read down" an external statute - here the Interpretations Act - so as to extend this Board's jurisdiction to a particular (but relatively narrow) class of crown employees over whom we would otherwise have no authority. From time to time this Board may have to construe an external statute in order to properly carry out its responsibilities under the Labour Relations Act, but we do not think we have any jurisdiction to reach out, strike down, or declare such statute partially inoperative. Indeed, it is by no means clear that even that would be effective, since the principle that statutes do not bind the Crown would appear to have a common-law basis quite apart from the Interpretations Act.
16In our view, the role urged upon us by the union is more properly and appropriately exercised by the superior courts (see section 24 of the Constitution Act, 1981) which are uniquely placed to declare inoperative common-law rules or legislative enactments, and grant such ancillary relief as may appear appropriate. While we recognize the union's concern, it could equally be argued that any collective bargaining anomaly which exists stems solely from the exclusion of part-time employees from the special legislation tailored specifically for the needs of the colleges - not from their exclusion from the Labour Relations Act because they are a category of crown employee. It is not the Interpretations Act or the Crown immunity principle which gives rise to the problem; it is the exclusion of part-time employees from the legislation governing collective bargaining by community college employees. If anything is to be "read down" or "struck down", it is that exclusion. The applicant does not challenge the propriety of separate legislation for Crown employees or community college teachers, and indeed, cannot do so without calling into question the very statutes by which it holds bargaining rights for such employees. The applicant maintains that it has valid representational rights under those special statutes but, in addition, urges this Board to invoke the Charter to nullify the notion of Crown immunity as it applies to a particular group of part-time crown employees so that, (it is said), they will fall within the ambit of the Labour Relations Act, and this board's jurisdiction. We decline to do so. From a policy point of view, it would not make much "collective bargaining sense" if we were to find that full-time community college workers operate under one set of legal rules, and part-time employees fall within another, quite different legal regime, but in any event, we do not think we have jurisdiction to do what the applicant here seeks.
17Prior to the issuance of the decision in this matter, counsel for the union made further argument, based upon section 15 of the Charter of Rights which had come into effect after the hearing but before the release of the Board's decision. Those arguments can be dealt with briefly and ultimately, along the same lines as the earlier argument, based upon section 1(d) of the Charter.
18In the first place, it is apparent that section 15 of the Charter is not, and was not intended to be retrospective. It was intended to come into full force and effect in April 1985, and both Parliament and the provincial Legislatures were given the opportunity, prior to that date, to remove any apparent inconsistencies. In the instant case, the application was filed, processed, argued and substantially determined on the basis of legislation and legal rules in effect prior to section 15 coming into effect. It certainly would be odd if this Board's jurisdiction could change between the date of the hearing and the date of the issuance of a decision - at least in the absence of some express provision that cases already "in the works" would immediately become subject to different legal rules. This is particularly so, where, as here, the Board is required to make certain factual and legal determinations as at the "terminal date" established under section 103(2)(j) of the Act, and, of course, well before April 15, 1985. However, even if we were to accept that section 15 has application to this case (which we do not), it would not alter the result. There being no challenge to the Colleges Collective Bargaining Act, per se, the only result of the application of section 15 would be a finding that part-time community college workers are, without justification, denied the collective bargaining rights of their full-time colleagues. That conclusion could logically lead only to a determination that the part-time exclusion in the Colleges Collective Bargaining Act was inoperative, not that the subject employees should fall under the Labour Relations Act. Indeed, the section 15 argument highlights the limited jurisdiction of this Board and the appropriate forum in which the applicant should seek such relief as may be available to it.
19In summary, we find that the individuals whom the applicant union seeks to represent are employees of a Crown agency. They are not covered by the Labour Relations Act, nor does the Board have jurisdiction to "read down" the Interpretations Act or the Colleges Collective Bargaining Act so as to bring the subject employees within our jurisdiction. If the employees have any remedy at all, it is one which must be sought in the courts, or from the Legislature.
20For the foregoing reasons, this application is dismissed.
CONCURRING OPINION OF W. F. RUTHERFORD;
With some reluctance, I agree with the conclusion that my colleagues have reached. I do not think that part-time employees of a community college are covered by the Labour Relations Act. However, I am troubled by the fact that they do not appear to be covered by any other collective bargaining legislation either. They are left without statutory recognition or protection of rights which have been available to most workers for more than forty years, and which have been available to their full-time colleagues for more than a decade. Why? Certainly I can think of no collective bargaining or public policy reason for excluding part-time employees. Part-time employees bargain collectively in nursing homes, hospitals, school boards, municipal corporations, the civil service, and throughout the private sector. Why should community colleges be different? There may be a reason for special treatment (a separate bargaining unit for example), but I can think of no reason why part-time workers should not have the same general collective bargaining rights as full-time workers. Collective bargaining may be possible without legislative protection, but it is unlikely to be very successful. To extend collective bargaining rights to full-time community college workers, but deny them to part-time employees, is an unjustifiable form of discrimination and, in my view, contrary to the Charter guarantee of equal protection of the law. However, I agree with the majority that the employees' remedy, if any, lies with the Legislature or the Courts and not this Board.