[1985] OLRB Rep. February 225
3351-84-R Ontario Public Service Employees Union, Applicant, v. Cradleship Creche of Metropolitan Toronto, Respondent, v. The Canadian Union of Public Employees, Intervener.
BEFORE: N. B. Sattetfield, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: Alick Ryder and Ivor Oram for the applicant; Martin Addario, Leslie MacLeod, Peter Chauvin, Myrna Francis and Karen Meehan for the respondent.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; February 21, 1986
The name of the respondent is amended to read: 'Cradleship Creche of Metropolitan Toronto".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties are agreed that, if the persons whom the applicant is seeking to represent are employees within the meaning of the Labour Relations Act, the unit which would be appropriate for collective bargaining purposes would be described as follows:
All employees of the respondent providing private-home day-care in Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor and employees in any bargaining unit for which a trade union held bargaining rights as of March 14, 1985.
For purposes of clarity and having regard to the agreement of the parties, the Board declares that a part-time employee who, at the making of the application, was carrying out home visits for the respondent, is not an employee in the bargaining unit described above.
The Board will refer to the persons whom the applicant seeks to represent as providers. The respondent contends that they are independent contractors and not employees within the meaning of the Act. The applicant takes the position that they are employees in the ordinary sense of the word, but in the alternative, are at least dependent contractors within the meaning of section 1(1 )(h) of the Act and, therefore, are employees pursuant to section 1(l)(i) which states that an "'employee' includes a dependent contractor".
The Board has reviewed and weighed the testimony of the witnesses together with the submissions of the parties as to the conclusions the Board should reach therefrom. Having done so, the Board finds and concludes as follows.
The Cradleship Creche of Metropolitan Toronto ("the Creche") is an agency which provides day-care services within Metropolitan Toronto. It operates two programs: a group day-care program and a private home day-care program. It is the latter program with which this application is concerned. The program is administered from two Creche offices, one in the City of York and another in the City of North York.
The ultimate delivery of day-care services in the private home day-care program is through the providers who make themselves and their homes available for this purpose. The Creche is an agency licensed under the Day Nurseries Act ("the D.N. Act") to provide home day-care services and is responsible for assuring that the providers, their homes and the conditions under which day-care is provided in their homes satisfy the requirements of the D.N. Act. Before the Creche accepts a provider its staff first does a lengthy assessment of the potential provider, the provider's home, the number of children the provider will take and the hours and type of care to be given. If the Creche accepts the provider, they enter into a standard form agreement containing undertakings required by the D.N. Act, the number of children the provider will accept and the hours of care that will be given.
The Creche matches parents, children and providers. A match cannot always be made and the Creche does not guarantee placements to its providers. Once a match is made, however, the provider, parents and Creche enter into a "Provider & Parent Agreement With Cradleship Creche". This document, in addition to setting out the days and times care is to be provided, sets out the obligations of the parents and the provider and is, in large part, dictated by the provisions of "the D.N. Act".
Private home day-care is funded on a cost sharing basis by the Federal, Ontario and Municipal governments, with the municipal government directing the funds. In this respect, the Creche enters into a purchase of service agreement with the Municipality of Metropolitan Toronto ("Metro") to operate a private home day-care service. The fees paid to providers are set unilaterally by Metro. Neither the Creche nor the provider has any input into the setting of fees. All of the parents served by the Creche pay a fee scaled to income and all qualify for a subsidy from Metro.
The providers are paid by ordinary cheque of the Creche monthly upon submission of an attendance sheet showing the hours of care. The provider must have the hours verified by the parents. The Creche invoices the parents for their share and Metro for its share. The provider is paid whether or not the parents pay the Creche. No deductions are made from the payment to providers respecting income tax, unemployment insurance or the Canada Pension Plan. The Creche requires providers to have a source of income other than the income derivedfrom the Creche. Mothers' allowance would satisfy this requirement, so, it may be presumed, would funds provided by a member of the family for the operation of the household, or income from renting rooms. While the Creche discourages its providers from entering into private arrangements with parents supplied by the Creche, providers can take children into day-care privately with the prior aknowledgement and consent of the Creche. They must comply with the D . N. Act, particularly respecting the maximum number of children in care. The absolute maximum is five children including the provider's own children. The Creche stipulates the actual maximum number of children, up to five, which the provider can care for and the provider must not exceed that number. The provider is obligated to inform the Creche of the actual number of children in care, including the provider's own children, at any time. Twenty to twenty-five per cent of the Creche's providers have children in care, including their own, in addition to those arranged by the Creche.
It is compulsory for the Creche's providers to attend an orientation workshop, put on by the Creche, within the first two months of contracting with the Creche, a child care course within the first year, plus an update every three years; and a minimum of three workshops per year on various aspects of child care. Providers are also required to take a first aid training course arranged by the Creche. The Creche puts on the courses and workshops and bears the cost of them out of its administration grants and other funding sources. There is no direct evidence of any fee being charged to the providers. Nor is there any direct evidence of payment to the providers for attending courses and workshops. However, it is reasonable to infer from the evidence respecting the nature of the contractual relationship between the Creche and its providers and the manner in which they receive payment for child care, that the providers are neither charged a fee for the courses and workshops attended, nor are they reimbursed for attending them.
Creche staff make supervisory visits monthly to providers' homes and do a formal evaluation of the providers and their homes every six months. Providers are required at all times to work within the framework of the Day Care Provider Manual supplied by the Creche to every provider. The Creche can terminate a placement with a provider and its agreement with the provider at any time. It is an infrequent occurrence and usually results from a serious offence such as leaving children unattended or administering physical discipline. If the offence is not serious enough to cause immediate termination of the Creche's contract with the provider, the Creche will set terms for the provider. If the provider fails to satisfy the terms, the Creche will terminate its arrangements with the provider. The parents can continue to have the provider care for their children if they wish, but they would lose their subsidy.
The Creche is responsible under the D . N. Act for making sure that providers have adequate liability insurance, but the cost of the insurance is borne by the providers.
Providers must inform the Creche whenever they are unable to care for children in their charge. This is because the Creche wishes to avoid the parents being inconvenienced because care is not available; for example, missing work. The Creche is not obligated to provide alternate care arrangements but does so whenever possible for the reason just stated. The normal procedure for providing substitute care in such instances, for periods of a week or more, for example, is for the Creche to transfer the children to another provider's home. This would be the case also if a provider takes vacation during the period when the children in the provider's charge still need care. Although the Creche requires providers to inform it a month in advance of taking vacation and encourages them to plan their vacations to coincide with periods when their children will be out of care, the Creche cannot prevent providers from taking their vacations when they wish. On the other hand, a provider who needs a day off can arrange privately for another person to come into the provider's home and care for the children. The provider is not required to advise the Creche of the arrangement, but the substitute must be at least eighteen years of age in order to comply with the D.N. Act.
There are no standard hours of care, but the fee schedule set by Metro for a full day of care is based on 10 hours. The days and hours during which a provider gives care is decided between the provider and the parents of the children. One exhibit of such arrangement contains hours of care from 7:30 a.m. to 6:00 p.m. and the viva voce evidence is that the average weekiy hours of care for a provider would range between 40 and 50.
The Creche contends that the formal relationship between it and the providers individually and between each provider and the parents whose children are in their day-care, together with the actual conditions under which private home day-care operates, demonstrates a real relationship as between the Creche and its providers of client and independent contractor. The Creche points by contrast to its own acknowledged employees who are employed in its day-care centre. These employees work regular, scheduled hours under direct supervision. They receive, amongst other things, statutory benefits in the form of vacations and paid holidays. They are covered by Worker's Compensation, Unemployment Insurance and Canada Pension Plan statutes and they are paid by payroll cheque from which deductions are taken for income tax, unemployment insurance and Canada Pension Plan.
The terms "employee" and "independent contractor" are not amongst those explicitly defined in the Act. Prior to 1975, in the absence of such definitions, the Board relied on common law tests to decide an issue of whether a person was an employee or independent contractor. Since 1975, however, the word "employee" as used in the Act includes "dependent contractor" [s. 1(1)(i)]. and that term has been explicitly defined by the Act since that time in what is now section 1(1 )(h) which reads as follows:
"dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehicles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor.
The nature of the issue raised by the Creche, in the Board's view, makes it more appropriate to examine the status of the providers under the definition of dependent contractor. The purpose of the dependent contractor provisions of the Act was described by the Board in the following terms at paragraph 19 of its decision in H. G. Francis and Sons Limited, [1981] OLRB Rep. Nov. 1587:
The dependent contractor provision of the Act is intended to apply to persons who have some of the trappings of the independent entrepreneur, but, in reality, are in a position of economic dependence, more like that of an employee. In interpreting the section, the Board has rejected the argument that section 1 ( l)(h) merely codifies the common-law tests. That proposition is clearly untenable, given the academic and legal debate which preceded the 1975 amendment. Instead, the Board has viewed the statutory definition as "a new departure" which may imply that persons who have previously been denied access to collective bargaining can now be brought within the ambit of the Act. (See Adbo Contracting Company Limited, [1977]
OLRB Rep. April 197). Of course, certain of the conunon law considerations may still be important; but the Board's ultimate responsibility is to make a determination on the basis of the statutory definition set out above. As the Board observed in Superior Sand, Gravel & Supplies Ltd. [1978] OLRB Rep. February 119 at page 126,
[the task] is to make the determination by reference to the criteria set out in the statutory definition of dependent contractor. This definition directs the Board to examine the type of economic dependence and the kind of business relationship or obligation that it has before it; and further directs the Board not to give undue emphasis to whether there exists a formal contract of employment, and whether or not a person furnishes his own tools, vehicles, equipment, or machinery. In the final balance, the Board must be satisfied that the relationship before it, even though it may not bear all the hallmarks of the typical employment relationship, more closely resembles the relationship of an employee than of an independent contractor.
The Board's earlier decision in Abdo Contracting cited in Francis and Sons, supra, identifies two tests established by the definition of dependent contractor in section 1(1)(h) which must be met before a person can be found to be a dependent contractor:
(1) the contractor must be in a position of economic dependency on the client closely analogous to that of an individual employee; and,
(2) the contractor must be under an obligation to perform duties for the client roughly analogous to the obligation an individual employee has to perform duties for his employer.
The substantial majority of the providers are dependent upon the Creche for their income derived from private home day-care. Only twenty to twenty-five per cent of the providers have children in care from other sources, including their own children. While private home day-care is arranged directly by Metro and by agencies other than the Creche, since the Creche discourages its providers from taking private care children in order to secure spaces for the subsidized care children on its own list of families, it is reasonable to infer that the Creche also discourages its providers from entering into arrangements to take subsidized children from other sources. In this way, the Creche controls the source of day-care customers for the providers. To the extent the Creche is successful in this respect, it is its providers' only source of income from caring for subsidized children. This dependency is further entrenched by the fact that the providers and their homes must be approved by the Creche in the first instance before they are put on the Creche's list of private home day-care providers and by their dependency on the Creche for finding children from its waiting list which are a match for the children the providers are able and willing to take into care.
Two other factors operate to sustain the providers' economic dependency on the Creche. The D.N. Act sets five as the absolute maximum number of children who can be in the care of a provider. Therefore, a provider cannot expand his or her enterprise beyond that number. Moreover, the average weekiy hours of care for the providers as a group would be a severe limit on their opportunity to earn income from any other activity. Thus, it is reasonable to conclude that, if providers satisfy the Creche's requirement to have some source of income other than the day-care fees, the income is unlikely to be income from some other entrepreneurial activity or from employment elsewhere.
The Creche and its providers are equally dependent on Metro for the per diem rates which can be charged for day-care services, since neither has any input to the setting of the rates by which the providers are to be remunerated. At the same time, the providers take no risk for collecting for their services. They are paid by the Creche according to the hours of care reported on the monthly attendance sheets which they submit. The only "entrepreneurial" risk of payment is taken by the Creche, since it is responsible for collecting from Metro for the subsidized portion of the day-care fee and from the parents for the remainder.
These facts show the providers to be directly and substantially dependent for earned income on the private home day-care referrals from the Creche. Their limited opportunity to obtain income from other sources of entrepreneurial activity or employment, points readily to an economic dependency on the Creche closely parallelling the dependency associated with an ordinary employment relationship.
The Board turns, then, to the nature of the providers' obligations to perform duties for the Creche. As long as they remain on the Creche's list of providers, their obligation is to provide day-care in their homes for the children of parents who have registered with the Creche for this service. They do have some individual latitude in fulfilling that obligation. They can refuse children referred by the Creche, or terminate an existing placement. They also decide the hours when they will be available to provide the service, in the first instance when they go on the Creche's list of providers and, in the second instance, when they enter into an agreement with the parents. While there is no direct evidence of what the Creche would do if it became dissatisfied with a provider for refusing to take children or with the hours of care being made available, it is reasonable to infer from the evidence about how the relationship between the Creche and a provider is established that there are real limits on a provider's latitude to reject children and to set the hours of care. The Creche puts a provider on its list only after, amongst other things, it is satisfied that the provider is willing and able to provide day care for children of parents on the Creche's list. If the provider becomes so selective about the children he/she will take into care or the hours of available care that the Creche's needs are not met, it is reasonable to assume the Creche would terminate its relationship with the provider. There is also a natural limit on the providers' ability to set their hours of work, and that is the hours of care which the parents need for their children. If the providers fail to satisfy those needs, they would not have customers, a problem shared with all entrepreneurs. The providers have similar scope for deciding when they will take their vacations or take a day off. They can also make their own arrangements, without need to advise the Creche or get its prior approval, to have someone replace them on a day off. This latitude to refuse or terminate placements, set hours of work and take time off is more characteristic of an entrepreneurial relationship than one of employer and employee. So too are the facts that providers bear the cost of liability insurance and that no deductions for income tax, unemployment insurance and Canada Pension Plan are made by the Creche from its monthly payments to the providers.
On the other hand, even though the providers perform their services in circumstances where the kind of supervision normally associated with an employee/employer relationship is not feasible, the Creche exercises control over the providers in a variety of other ways. In keeping with its responsibility under the D.N. Act and its purchase of service contracts with Metro to assure that the providers and their homes comply at all times with the D.N. Act, the Creche requires them to:
(1) undergo initial orientation when they enter into an agreement with the Creche to have it refer children for day-care;
(2) take a first aid training course provided by the Creche;
(3) take, within the first year, a child care training course provided by the Creche;
(4) update the training every three years;
(5) attend at least three training workshops per year put on by the
Creche; and
(6) work at all times within the framework of the Day Care Provider Manual supplied by the Creche.
Those requirements are analogous to the indoctrination and on-the-job training an employer might require an employee to undergo in order to become and remain qualified to carry out his duties and responsibilities for the employer.
The Creche further monitors the way its providers meet their obligations to it by means of monthly visits to their homes, semi-annual evaluations of the providers and their homes and by requiring them to notify the Creche when they are not going to be available for any reason, including vacations. If the Creche is dissatisfied with the provider's service, the Creche will terminate its arrangements with the provider and remove the children from the provider's care. The manner in which the Creche does this, in other words by terminating its contract with the provider if the offence is a serious one or setting terms for correcting the problem if immediate termination of the relationship is not warranted, is consistent with the kind of corrective action an employer might take with an employee who engages in misconduct.
The fact that the demands of the D.N. Act and the Creche's contract with Metro impose the need for most of the controls which the Creche exercises over the providers does not alter the fact that their economic independence and their opportunity to act as independent entrepreneurs areseverely circumscribed. In the result, they are left in the position where they supply only their homes and their personal attributes and labour. All else is provided by the Creche, particularly the providers' customers. In addition, the Creche imposes training requirements on the providers~ monitors their performance and deals with unsatisfactory performance in a manner consistent with an employer/employee relationship. When these facts respecting the economic relationship between the Creche and its providers and the nature of the providers' obligation to perform duties for the Creche are weighed against those matters in which the providers have some personal discretion, in the Board's view, the facts point to a relationship between the Creche and its providers more closely resembling an employer/ employee relationship than one of client and independent contractor.
The Board finds, therefore, that the providers whom the union is seeking to
represent are dependent contractors within the meaning of section 1(1 )(h) of the Labour
Relations Act. By operation of section 1(1)(i), they are also employees for purposes of the
Act.
The respondent has filed lists of employees in the bargaining unit described above totalling 111 names. Eight of those names appear on Schedule "C" and one on Schedule "D". None of those nine persons were at work during the 30 days immediately preceding and the 30 days immediately following the application date. Therefore, the Board finds that there were 102 employees at work in the bargaining unit at the times material to this application. The applicant has filed membership evidence in the form of combination applications for membership and receipts indicating in each case payment of at least $1.00 in respect of initiation fees in the applicant on behalf of 74 of the employees in the unit. The membership evidence was supported by a duly filed "Declaration Concerning Membership Documents". Therefore, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 10, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant for the bargaining unit described in paragraph
4 hereof.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
The concept of a "dependent contractor" found its way into our system to deal with commercial arrangements such as are to be found in chain milk store operations (eg. "Mac's Milk" and "Beckers") wherein the agreement entered into by the individual store "owner" cedes so many of the entrepreneurial decisions as to have caused the Board to conclude, that the dependency of the individual store operator upon the chain organization is such that the operator is in a position more akin to that of an employee than that of an independent entrepreneur. In these circumstances, the Board has reasoned that the right to organize and bargain collectively under the provisions of the Labour Relations Act should be extended to the store operators.
Whereas milk store operators would negotiate directly with an entity which has complete control over its purse-strings, providers of day-care would be dealing with an entity in this case Cradleship Creche, which must look to three levels of government for funding out of the public purse.
In my view it is not of assistance to us in assessing the relationships to know that the Creche requires providers to attend various workshop and training courses when there is no evidence as to whether the providers are paid for attendance.
Similarly, in light of Regulation 26 of the D.N. Act which requires "every operator (i.e. the Creche) (to) ensure that a policy of insurance with respect to each ... private-home day-care agency is obtained and maintained ...", it is not helpful for us to know that this operator requires providers to be responsible for the cost of such insurance.
Whether compulsory attendance and the payment of insurance costs are to be viewed as examples of the "exercise of control" or as "conditions precedent" set by the Creche before it will do business with a given provider are moot points.
Under the existing arrangement, if providers regard the payments as inadequate they can (and some have) gain experience and establish themselves under the Creche agreement and then remove themselves from the agreement and accept only children under private arrangements with parents. In doing so they are not dependent upon the license granted to the Creche.
To the extent that this occurs it seems to me one of two outcomes are effectuated, either:
a) the demand on the publicly funded service is reduced, or
b) other prospective providers can be recruited by the agency, in which event the aggregate number of day-care spaces increases.
Either eventuality strikes me as desirable in terms of public policy and should be weighed against an interpretation of section 1(1 )(h) of the Labour Relations Act which I presume is thought to be in pursuance of the public interest objective of furthering "harmonious relations between employers and employees" by encouraging the practice and procedures of collective bargaining between employers and trade unions as the freely designated representatives of employees as expressed in the preamble to the Act.
Since the preamble appears to contemplate that there may be some circumstances wherein an absence of collective bargaining is not contrary to public policy, I would have thought the beneficial effect of not imposing collective bargaining in this case should be the option to be preferred.
Submitted in evidence was a "Day Care Provider Manual", the middle section of which is titled "Manual for Providers of Private Home Day Care". The following appears at page 4:
"WHY IS IT IMPORTANT THAT I HAVE ANOTHER SOURCE OF INCOME
Placements are not guaranteed immediately and are not always long lasting. Family situations change, and your day-care family might move, or no longer qualify for day-care. Therefore, it is important that you have another source of income."
In her evidence the executive director testified that the Creche requires providers to have a source of private income, that this requirement is reflected on a sheet handed out when the Creche receives a first inquiry from a prospective provider and that the point is made again during the screening procedure.
The requirement for another source of income and the stipulation in the Provider Agreement Form that providers must "inform the agency (i.e. Creche) immediately in (sic) any changes in her own family situation", are supportive of the proposition that Cradleship Creche, as a matter of policy and in the interest of the children given into its care, seeks to avoid persons who would be dependent upon the Creche for their livelihood. On the contrary they seek out persons who can provide a stable environment for the children and in this connection they view a reasonable degree of economic independence as a necessary concomitant, if not a sine qua non, of stability.
The need for a stable environment seems self-evident to me and it is particularly significant that Cradleship Creche imposes the income requirement whereas virtually all the other criteria we have considered in relation to the "dependent contractor" question are set down by the government.
While it is correct to say that the Creche discourages providers from taking in privately placed children this is not to say that providers are strictly precluded from doing so. Discouragement of the practice is understandable from the standpoint of the Creche but the presumption must be that, having found a stable environment, the Creche is desirous of keeping as many spaces as possible available for its own placements. This is not inconsistent with the Creche's desire for a stable environment nor with its conscious effort to recruit providers who will not be dependent for their livelihood on income from the Creche.
The evidence suggests that the Creche has been less than successful in recruiting providers who are not likely to become dependent on child care as their primary income source. However, the imposition of collective bargaining seems to me contra-indicated from the standpoint of public policy since its likely effect would be to attract even more providers who are motivated out of monetary considerations. I recognize this would not be the first time collective bargaining would have been imposed where the "employer" was dependent upon the vagaries of the political climate for funding and where even working conditions and practices are not within the ability of the employer to determine. Nevertheless, in creating a collective bargaining regime wherein the care of infant children would become the ultimate bargaining chip, I believe we would have gone too far.
Under such a regime I am also left to wonder where this leaves the provider of care under private arrangements should that individual agree to accept a Creche placement on either a long or short term basis. Consider a provider with four private placements who agrees to take in a child referred from the Creche. Is that provider now a dependent contractor? If not, does that status change should the provider agree to take a second Creche child? Does the amount paid for Creche children in relation to private placements effect such a determination? Conversely, when "Creche" providers begin to accept private placements at what point do they remove themselves from the bargaining unit? Whatever the status of these providers, is the role of the Creche not reduced to that of a baby broker?
In assessing the totality of the evidence, I would have considered the public policy implications as well as the evident intentions of the Creche in its selection methods and on both counts concluded that providers should not be found to be dependent contractors for purposes of the Act.
This type of case brings into focus two questions which I believe should be of concern to the Ontario Labour Relations Board and to the larger community as well. The questions are interrelated in that one has to do with the phenomena of public policies in conflict, such that one or another of the policies may be frustrated; while the second has to do with the capacity, or lack thereof, to measure and monitor the effects of decisions by tribunals such as the Ontario Labour Relations Board.
In the case before us a Board decision to find that providers are dependent contractors, hence extending collective bargaining to a new group of "employees" under the Labour Relations Act, could have cost implications which might frustrate efforts by three levels of government to pursue a public policy of attempting to provide day care at an affordable cost.
In recent years there have been other examples of the public policy with respect to collective bargaining coming into conflict with public policies designed to address problems of employment, skills training, and rehabilitation to name a few. The Trent Metals Limited, [1976] OLRB Rep. Dec. 840 case is an example. In that instance a Peterborough metal fabricating company was providing individuals with skills training in sheet metal work under the provisions of a program federally funded and administered by the Province. The public funds paid the salary of the trainers and also provided the trainees with a weekiy allowance which in some, but not all, cases was in lieu of unemployment insurance. These trainees applied for and were granted union certification. The company, not being disposed to "negotiate" with two levels of government in order to meet anticipated union demands for increased "wages", aborted the program.
In Guelph Beef Centre Inc., [1977] OLRB Rep. Mar. 184, the effect of certifying a bargaining unit which included the inmates of the correctional institution did much to discourage Ontario manufacturers from expressing any further interest in a plan sponsored by the Minister of Correctional Services which, it was hoped, would have enabled the inmates to earn an income and, more important, develop an attitudinal approach which might have helped them in job searches after their release.
It is reasonable to take the position that it is not the role of the Ontario Labour Relations Board to pass judgement on the relative merits of various public policies and I would not argue to the contrary. However, I believe it is reasonable to argue that the thrust of public policy as revealed in the preamble to the Labour Relations Act is to "further harmonious relations" (my emphasis) and that the "encouragement of collective bargaining" is seen as a means to that end. Surely it can be argued that collective bargaining is not envisioned as the only means or, indeed, that it is in all instances even an appropriate means.
It should be remembered that the dependent contractor provisions of the Labour Relations Act leave some of the interpretation and application to the discretion of the Ontario Labour Relations Board. In these cases where we can foresee a potential conflict with other public policies and social goals such as mentioned above, my inclination would be to adopt a circumspect approach.
In the instances I have described the consequences of Board decisions were predictable but in many cases the consequences of our judgement calls may never become apparent to the Board. There is, for instance, empirical evidence to suggest that attempts by the Board to impose collective bargaining under the provisions of section 8, where the evidence of union support is weak, have not resulted in successful or long-lasting collective bargaining relationships. However, the writer is quick to admit that his views on this issue are impressionistic or anecdotal. Hence one wishes for dispassionate factual information as to how well or poorly our judgements have served those who have come before us.
In the absence of such an impartial assessment the Board is left to develop its own "solutions" to problems as we perceive them. We do this by the evolvement of case law and by such changes in practices and procedures as are permitted to us by the Labour Relations Act. Others of the problems, as perceived by the Board have resulted in legislation amendments.
To my mind there is danger in relying on the perceptions of the Board for an indication as to what problems exist and how they should be solved. The danger inheres from the fact that, by definition, the Board is dealing with the pathology of labour relations and industrial life in Canada. To generalize from the specifics of our cases risks prescribing for the wrong ailment or for one that is non-existent, and the further risk of killing the patient with the medication.
This analysis is not meant to reflect on the perspicacity or intentions of those who serve and have served the Ontario Labour Relations Board. It is intended as a plea for recognition of the fact that, despite our lack of omniscience, members of the Ontario Labour Relations Board may not infrequently be put into a position of making decisions which could affect a range of public policies in an adverse way and may even be responsible for evolving practices and procedures detrimental to the policy field we are charged with overseeing.
It is trite, but proper, to observe that the development and monitoring of public policy, for good or bad, is better left to those we elect than those of us who are hired to carry it out or adjudicate problems to which it gives rise.