The Corporation of the City of Thunder Bay v. Ontario Public Service Employees Union
[1985] OLRB Rep. July 1178
0422-85-R The Corporation of the City of Thunder Bay, Applicant, v. Ontario Public Service Employees Union, Respondent, v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman, and B. L. Armstrong.
APPEARANCES: Brian A. Babcock, O. N. Antilla and J. Dolph for the applicant; James Thomas and Glen Leckie for the respondent; Michelle Herits and Gerald Zuk for the objectors.
DECISION OF THE BOARD (ORALLY); July 8, 1985
Reasons for Decision
1The applicant has applied to the Ontario Labour Relations Board under section 4 of the Successor Rights (Crown Transfers) Act for termination of the bargaining rights of Ontario Public Service Employees Union, as a result of a transfer of an undertaking by her Majesty The Queen, in Right of Ontario, as represented by the Minister of Community and Social Services, to The Corporation of the City of Thunder Bay, on or about the first day of January, 1985.
2The respondent Ontario Public Service Employees Union took the position that the application was untimely, having been brought more than 60 days after the transfer of the undertaking in question, and the Board heard the representations of the parties on that issue only.
3It does appear that the statute on its face raises a real question of the timeliness of this application. Section 4(2) provides:
Where an undertaking is transferred from the Crown to an employer, any person, employee, organization, trade union or council of trade unions may apply to the Board ...
(a) within 60 days after the transfer of the undertaking ...
The applicant indicates that it is that sub-section, and not subsection (b) that it relies upon in the present circumstances. While we agree with the applicant that the word "may" in sub-section 2 is permissive, in the context of the section as written it is "permissive" in the sense that any person, employer organization, trade union or council of trade unions may apply to the Board during the period specified, that is, the 60 days after the transfer. There is no provision in the Act for the bringing of such an application outside of the specified period, unless the Board can find the jurisdiction to, in effect, extend the 60-day period provided for. And it seems to us that as the time limits under consideration here are made part of the actual enabling legislation itself, our authority to modify those time limits, or grant dispensations, must be found within the statute or a comparable statute as well. It is not sufficient, in other words, to look to the Board's general rules of practice, or rules which the Board itself makes under the Labour Relations Act, to find the jurisdiction to effectively amend the statutory requirements. What the applicant therefore relies upon is section 103 of the Labour Relations Act, as indeed was relied upon by the Courts in the Man of Aran case, reported at 1973 CanLII 511 (ON HCJDC), [1973] 2 OR. (2d) 54. That section is now section 114 and provides:
No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.
4In order to get to section 114 for these proceedings, the applicant relies on section 6(2) of the Crown Transfer Act. That section provides:
(2) Except as otherwise provided in this Act, where an undertaking is transferred from the Crown to an employer, the Labour Relations Act applies to a bargaining agent that has representation rights in respect of the employees employed in the undertalting and to the employees
The section by its term is very specific as to whom it applies. It is not made to apply to an "employer", for example, and one might infer from that that the section appears to be directed more at the substantive protections granted to both trade unions and to employees under the Labour Relations Act than to broad procedural sections such as section 114. But in any event the employer is clearly omitted from the list of persons to whom the section applies. Looking at the persons who are mentioned, it does not appear that one can say that any trade union other than OPSEU has representation rights in respect to this undertaking at the time the Board must make its assessment, and in any event the other trade union in question, CUPE (who represents the City's employees), is not before us in the present proceedings. We note that there are employees before us who are very much affected by what is at issue here, but those employees are not the applicants, and we do not think that their presence as intervenors can be used to assist the present applicant on the question of the timeliness of its own application. In the result the applicant is able to point to nothing which would provide the Board with the kind of discretion that it seeks and that the applicant must have in order for this application to be timely under the present circumstances. We note again that the present circumstances, as the applicant has submitted, would not appear to include those which give rise to a timely application under section 4(2)(b) of the Act, notice to bargain not having yet been given to the successor employer.
5Where such a discretion or latitude is not readily apparent, we as a Board, being mindful of all of the interests that are before us, have to wonder whether we are doing a favour to those who support this application to take jurisdiction in a manner which may well be subject to being vacated in the Courts. Beyond that there is certainly a question in view of the other legal arguments the respondent seeks to make (some of which will be before the Grievance Settlement Board on July 16 and 17), together with the potential for rebuttal evidence, whether we would be able to finish this application today. And the matter being outstanding might well come in the way of an application being brought before the Board under section 4(2)(b) by the employer, as circumstances permit, where the Board's jurisdiction would be clear, or perhaps by what has been termed the "proper" applicant (i.e., the competing trade union), in a section S application, the present applicant (the employer) not being one of the parties permitted by the terms of section 5 itself to bring an application under that section. Such latter application would allow the Board to consider the central issue of "intermingling" of the employees in a more direct way than is open to us in a proceeding under section 4.
6We are, in any event, not satisfied that we have the jurisdiction to entertain the present application. This may appear to some to be a technical application of the statute, but in all of the the circumstances before us we find that it is the one that we are compelled to, and the application is accordingly dismissed.