Dominion Paving Limited v. Labourers' International Union of North America, Local 183, 1986 CanLII 1411

Dominion Paving Limited v. Labourers' International Union of North America, Local 183

[1986] OLRB Rep. July 946

2093-84-U; 2094-84-U Dominion Paving Limited, Complainant, v. Labourers' International Union of North America, Local 183, International Union of Operat­ing Engineers, Local 793, Amalgamated Transit Union, Local 113, Michael Reil­ly, Frank Spera, John Ricciuto, James Carruthers and Roy Hines, Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and B. L. Arm­strong.

APPEARANCES: William S. Challis for the complainant; S. B. D. WahI for the respondents Labourers' International Union of North America, Local 183, International Union of Operating Engineers, Local 793, Michael Reilly, Frank Spera and John Ricciuto; H. M. Pollit for the respon­dents Amalgamated Transit Union, Local 113, James Carruthers and Roy Hines.

DECISION OF THE BOARD; July 29, 1986

1These are consolidated applications under sections 92 and 135 of the Labour Relations Act, together with a complaint under section 89 of the Act. The facts giving rise to the proceedings occurred in the course of the respondents Local 183 of the Labourers International Union and Local 793 of the International Union of Operating Engineers seeking to establish, by way of either certification or voluntary recognition, a collective bargaining relationship with Dominion Paving Limited (hereinafter referred to as the applicant). As a result of a ruling by another panel of the Board, a companion file, 1991-84-R, being an application for certification, proceeded separately and concurrently before that other panel ([1986] OLRB Rep. June 705).

2The cornerstone of the proceedings before the present panel is the passage in August of 1984 of the Toronto Transit Commission, Gray Coach Lines Limited and GO Transit Labour Dis­putes Settlement Act, 1984 (referred to generally as the "Transit Labour Disputes Act"). At that point in time the Toronto Transit Commission had reached the end of the normal conciliation pro­cedures with its various unions, including the respondent Local 113 of the Amalgamated Transit Union, and the employees affected were in what is normally termed a "legal strike position". At the same time, however, concern over the effects of a transit strike was apparently heightened by the imminent arrival in Toronto of both Pope John Paul II and Queen Elizabeth II. The Legisla­ture of the Province in the circumstances saw fit to pass the aforesaid piece of special legislation, rendering it unlawful for economic sanctions to be engaged in with respect to these employees, and substituting instead the resort to compulsory and binding arbitration.

3As it happens, the applicant Dominion Paving Limited was, in the immediate weeks fol­lowing passage of the Act, beginning a contract with the City to assist the Toronto Transit Com­mission (TTC) in the replacement of a stretch of street-car tracks along Queen Street East. As not­ed, the respondents Local 183 and 793 were, at that time, desirous of establishing a collective bargaining relationship with the applicant. Allegedly to that end, these respondents established a picket-line at the applicant's Queen Street job site, and the members of the respondent Local 113 (A.T.U.) refused to cross. The applicant's employees were non-union, and were prepared to con­tinue with their scheduled work, but can only work in tandem with the 'ITC employees; hence, the net effect of the picket-line was to temporarily bring the reconstruction project in which the appli­cant was engaged to a halt (regular transit service on such projects is not, and was not, interrupt­ed). The applicant accordingly seeks from the Board a declaration and direction, together with damages it says flowed from the interruption and delay of its contract.

4With most if not all of the evidence before the Board, the parties agreed to present writ­ten argument on a number of preliminary "defences" to the application and complaint, prior to addressing the extensive questions of liability, causation, and damages. In these latter regards, the Board is aware of the fact that the other panel, exploring many of the same factual issues, has, as noted, issued its decision. No submissions of the parties have been made to this panel as to the effect, if any, of this related decision, and we simply note the findings of the other panel in para­graph 10 of its decision as to the non-existence, in light of the response of TTC management itself to the picket-line, of a "strike".

5One of the issues which the respondents did raise in their written submissions is the con­stitutionality of the Transit Labour Disputes Act itself. Specifically, the respondents argue that that suspension of normal collective-bargaining rights violates the guarantee of "freedom of associa­tion" contained in section 2(d) of the Charter of Rights and Freedoms, and that the apprehended visits of the Pope and the Queen are not sufficient considerations to justify such restrictions in a free and democratic society.

6The Board in the past has acknowledged its willingness to give full consideration to "Charter" arguments, particularly where, as here, such argument is central to its own jurisdiction. See, e.g. Third Dimension Limited, [1983] OLRB Rep. Feb. 261; and compare Sault College of Applied Arts and Technology, [1985] OLRB Rep. Aug. 1293. This position adopted by the Board appears to be confirmed by the comments of the Supreme Court of Canada in R. v. Big M Drug Mart Ltd., (1985) 1985 CanLII 69 (SCC), 18 D.L.R. (4th) 321, and continues to be the position of the Board. In order to properly assess a Charter argument, however, it is essential that the matter be placed before the Board in an appropriate way. Where such a matter is raised before the Courts, for example, the opportunity for the government to enter an explanation and defence for its legislation is ensured by the provisions of section 122 of the Courts of Justice Act, which provides:

(1) Where the constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature or of a regulation or by-law thereunder is in question, the Act, regulation or by-law shall not be adjudged to be invalid or inapplicable unless notice has been served on the Attorney General or Canada and the Attorney General of Ontario in accordance with subsection (2).

(2) The notice shall be in the form provided for by the Rules of Civil Procedure and, unless the court orders otherwise, shall be served at least ten days before the day on which the question is to be argued.

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitu­tional question.

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submis­sions under subsection (4), he or she shall be deemed to, be a party to the proceedings for the purpose of any appeal in respect of the constitutional question. R.S.O. t980, c. 223, s. 35.

That procedural section does not apply to the Board itself, but the Board does have the power to control its own procedures, in order to ensure a full and fair hearing. The importance of the gov­ernment having the kind of opportunity mandated for proceedings in the courts is highlighted by the balancing of interests asked for in the present constitutional challenge, and it is the view of the Board that such challenges ought not to be entertained in the absence of reasonable notice having been given to the appropriate Attorney(s) General.

7We move on at this stage, therefore, to consider the issue of the "status" of the third-party contractor, Dominion Paving Limited, in these proceedings. Absent passage of the Transit Labour Disputes Act, the freedom of employees of the 'FTC to engage in strike action at the time of the events in question would have been unrestrained. The source of "wrongfulness", if any, therefore, in this case has to be the Transit Labour Disputes Act. And flowing from that, it is clear that the status of the applicants to seek a remedy under either of sections 89, 92 or 135 of the Labour Relations Act depends upon an analysis of the precise manner in which that special Act intersects with the general provisions of the Labour Relations Act. Section 89, in particular, refers only to a contravention of "this Act" (being the Labour Relations Act), and clearly, therefore, is only available as a procedure in the present case if it is somehow adopted into or incorporated with the terms of the Transit Labour Disputes Act.

8The applicant, in its comprehensive submissions, cites a number of "canons of interpre­tation" in support of its positions, but a close reading of the authorities cited by it and the other parties make it clear that in the application of these general rules, as Newcombe, J., put it in Turgeon v. Dominion Bank, (1930) 1929 CanLII 47 (SCC), S.C.R. 67, at pages 70-71, "Much depends upon the context." Where an allegation is made of the violation of a public statute, there is no reason why a Labour Board, as a matter of policy, would strain to interpret the legislation in a manner which would deny an allegedly injured party an appropriate remedy. A careful review of the Transit Labour Disputes Act as a whole, however, forces us to the conclusion that the respondents are correct in this aspect of their submissions.

9Section 1(2) of the Transit Labour Disputes Act provides:

Unless a contrary intention appears, expressions used in this Part have the same meaning as in the Labour Relations Act.

Section 2 provides:

(1) This Part applies to the parties and to the employees of the employer on whose behalf the unions are entitled to bargain with the employer under the Labour Relations Act.

(2) Except as modified by this part, the Labour Relations Act applies to the parties and to the employees mentioned in subsection (1).

The parties are then defined in section 1 as follows:

1(1) In this Part,

(d) "parties" means the employer and the unions;

and

(a) "employer" means the Toronto Transit Commission;

and

(e) "unions" means Local 113, Amalgamated Transit Union, Lodge 235, Inter­national Association of Machinists and Aerospace Workers, and the Cana­dian Union of Public Employees, Local No. 2 or any one of them.

Part 1 of the Act (being the relevant part) is by its terms concerned with the collective-bargaining relationship existing between the Toronto Transit Commission and the various unions representing its employees, together with those employees themselves. Thus the conduct sought to be prohib­ited by the Act is described, in section 8, as follows:

8.- (1)/Upon coming into force of this Part,

(a) the unions and the employer shall not call or threaten to call a strike or lock-

-out;

(b) no employee, member, officer, official or agent of the employer or the unions or of any one of them shall engage in, declare, threaten, authorize or acquiesce in a strike, lock-out or picketing...

The Legislature then went on, in section 8(1)(c), to protect those relationships against interference even by outsiders, in terms which parallel sections 74 and 76 of the Labour Relations Act. That is:

(c) no person shall counsel, procure, support or encourage a strike, lock-out or picketing contrary to this Part and no person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in a strike or lock-out con­trary to this Part.

[emphasis added]

This "offence" section of the special Act, section 8, is then followed by the following section:

9. Sections 92, 93, 94, 95, 97, 98, 99 and 100 of the Labour Relations Act apply to the parties and to the employees mentioned in subsection 2(1) with necessary modifications.

Each of these sections in the Labour Relations Act deal with remedies, being applications for a dec­laration and direction, for the awarding of damages through arbitration, and for consent to prose­cute (section 96 sets out the amount of the fines, and is replaced in the Transit Labour Disputes Act by section 10). The critical question is whether section 9 discloses an intent by the Legislature to enumerate an exhaustive list of the remedies it considered appropriate, in enforcing this special piece of legislation.

10The counter-argument is that subsection 2(2) preserves all parts of the Labour Relations Act not explicitly taken away from the Transit Labour Dispute Act, and that there is nothing in that Act which states that sections 89 and 135 do not apply. But the problem with that interpretation is that it would render redundant the express listing of remedies available from the Labour Relations Act in section 9. Section 2(1) states what it is the whole part is to apply to, and that is done in terms of the defined parties and the employees in these collective-bargaining relationships. Section 9 then enumerates specifically the procedural sections of the Labour Relations Act which are to "ap­ply" to this same relationship. Given the specific focus of the Transit Act on the collective-bargain­ing relationship and threat of a strike existing between the "parties", it does not lack credibility to conclude that the Government carefully considered the remedial avenues available to enforce its apparent intent (being the immediate continuance of transit services) when drafting section 9. The omission of section 135 from that list is simply further evidence that the present set of facts do not fit readily into the scope of this special legislation as the Government envisioned it. We conclude, therefore, that the scope of remedies available under the Labour Relations Act, in complaining about a violation of the Transit Labour Disputes Act, is in fact intended, in the words of section 2(2), to be "modified by this Part", by the specific enumeration of remedies set out in section 9. That means that neither section 135 nor section 89 are, as a matter of remedy, available as a mech­anism for the enforcement of rights created by the passage of the Transit Labour Disputes Act. Whether an "outsider" to the collective bargaining relationships with which the Act is concerned can claim damages through a section 95 arbitration (pursuant to section 9), or has a civil cause of action, is not before us. What is before us is whether the Board has the jurisdiction to entertain a section 89 complaint for alleged contravention of the Transit Labour Disputes Act, and we find that we do not. Both the section 89 complaint and the section 135 application are, in accordance with the foregoing, hereby dismissed.

11The remaining question is whether the applicant is an "employer" for the purposes of the section 92 application now before us, and therefore able to bring this application for a declara­tion and direction. We do not, however, decide that question at this stage. In order to receive such relief, the applicant must succeed on the issues of the Board's discretion and whether in fact a "strike" took place (apart from the other issues still to be determined on the merits) and in view of the unavailability of damages in these proceedings, a real question exists in the Board's mind as to the desire of the applicant to continue with the remainder of the application. The Board accord­ingly directs the applicant to notify it in writing by August 22, 1986, if it intends to continue with the application.