[1986] OLRB Rep. November 1503
1271-86-R; 1267-86-R; 1269-86-R; 1272-86-R; 1274-86-R; 1276-86-R; 1278-86-R; 1279-86-R; 1280-86-R; 1281-86-R; 1282-86-R; 1283-86-R; 1284-86-R; 1286-86-R; 1287-86-R; 1288-86-R; 1290-86-R; 1291-86-R; 1292-86-R; 1293-86-R Great Lakes Fishermen and Allied Workers' Union, Applicant, v. C.P. Fisheries Ltd. et al.
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members J. Sarra and W. G. Donnelly.
DECISION OF THE BOARD; November 4, 1986
In each of these matters, the applicant union ("the union") has brought an application for certification in which it requested a pre-hearing representation vote. By decisions dated September 4, 1986, the Board directed that a pre-hearing representation vote be held in each of these applications and the votes were accordingly held. The Board then scheduled hearings before us for the purpose of hearing objections raised by the respondents to the pre-hearing representation votes and with respect to matters arising out of the conduct of the votes.
The purpose of the initial hearing before us was to establish the procedure to be followed in all these files. At the outset of the hearing, counsel for the respondents in File Nos. 1276-86-R and 1283-86-R, Brian Nolan, requested that the Board grant a stay in these proceedings. Counsel had previously sought a declaration in the Supreme Court of Ontario that this Board was acting outside its jurisdiction in hearing these matters, on the basis that labour relations in fisheries are regulated by the federal government and not by provincial legislation. In a decision dated September 20, 1986, Sirois, J., of the Supreme Court of Ontario, held that that application was premature and that "this court should not interfere with the expertise of the Board to establish its own jurisdiction even on the constitutional question of jurisdiction". The decision of the Supreme Court has been appealed to the Court of Appeal and counsel requested that this Board stay proceedings until the outcome of that application. The issue of jurisdiction has been raised before this Board and in that regard, counsel for the union requested that notice be given to the Attorney General of Ontario and perhaps of Canada of these proceedings before the Board. In oral decisions, we declined to stay these proceedings and declined to require that notice be given to the Attorneys General or to give notice ourselves.
With respect to his request for a stay, Mr. Nolan admitted that the Board's jurisprudence indicates a general reluctance to grant stays where the Board has reached a decision and one of the parties seeks judicial review. However, he argued that that was not the situation before this Board where there has been no decision of the Board, but rather, the respondents seek a stay with respect to the fundamental question of whether the Board should enter into these inquiries. He argued that the governing decision should be Regina v. Ontario Labour Relations Board, Ex parte Ontario Food Terminal Board (1963), 1963 CanLII 299 (ON CA), 38 D.L.R. (2d) 530 (Ont. C.A.). In that case, which dealt with the question of whether the Ontario Food Terminal Board was a crown agency and therefore not subject to the Ontario Labour Relations Act, the Ontario Labour Relations Board determined that the Food Terminal Board is not a crown agency and went on to determine the application for certification made by the union. Mr. Justice Laidlaw, for the Court of Appeal, stated that the Labour Relations Board "had no right or power to determine that question, because it is a pure question of law which can be determined only by judges". He went on to say that the Board and other tribunals
must necessarily decide in the first instance and in every case whether or not it will assume jurisdiction to entertain an application brought before it, but the jurisdiction of all such tribunals is subject to challenge in a Court of competent jurisdiction by any entrusted party. In my opinion, when the question of jurisdiction or any other question of pure law is raised in a proceeding before a tribunal so constituted, the proceeding should stayed until such question has been finally determined by a Court of competent jurisdiction.
Mr. Justice Laidlaw went on in what he himself indicated is obiter to say that "the Legislature could not give the Ontario Labour Relations Board jurisdiction to determine any question of law within the competence and jurisdiction only of a validly constituted Court". Mr. Nolan argued that that decision has not been overturned and that it is still good law. He argued that since jurisdiction goes to the very question of the enabling legislation itself, and is a question of pure law dealing with the Constitution Act, 1867, the Board cannot resolve this question but must await the decision of the Courts. He argued that to proceed in a matter which is already before the Courts would cost considerable expense and time which may prove to be unnecessary and that there is no prejudice to the applicant since the votes have been taken and the results are in the Board files.
- The Ontario Court of Appeal also dealt with the appropriate procedure to follow when the Board's jurisdiction was questioned in Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832. In that case, Mr. Justice Arnott, for the Court, stated as follows:
The judgement of Laidlaw, J. A., in the Ontario Food Terminal Board case, supra, cannot be relied upon as authoritative in relation either to jurisdiction of the Board to decide questions of law, or to procedures to be followed when its jurisdiction is questioned.
In reaching this conclusion, Mr. Justice Arnott examined the judgement of McRuer, C.J.H.C. in R. v. Ontario Labour Relations Board, Ex p. Taylor, [1964] 1 0. R. 173 and the cases referred to therein. He pointed out that no distinction is made between a challenge to the Board's jurisdiction on the basis of, for example, an exclusion within the Labour Relations Act itself and a constitutional challenge, such as that before this Board. Mr. Justice Arnott then went on to state:
"It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions and procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it."
His Lordship then went on to note that a party is not required to wait until the tribunal has reached a decision on the matter it before going to Court. But he also indicated that "[i]t is also clear law that such a tribunal is not required to bring its proceedings to a halt merely because it has been served with a notice of motion of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the Court has actually been made prohibiting its further activity or quashing some order already made by which it assumed jurisdiction".
- The Board has consistently held that it will not stay proceedings while matters are before a court or in the face of a pending application. In Windsor Airline Limousine Services Limited, [1980] OLRB Rep. Feb. 272, the Board was required to determine whether a taxi business which did two per cent of its business in the United States was an interprovincial undertaking and therefore within federal jurisdiction or a local business and therefore within provincial jurisdiction. The Board concluded that the business was a local undertaking and went ahead with the case. After the Board gave its ruling on that issue, the respondent requested an adjournment on the basis that it was going to challenge the Board's jurisdiction in court. The Board concluded "that the possibility of an indefinite postponement of the employees' rights during the course of judicial review did not justify suspending the Board's proceedings. It therefore declined a request for an adjournment". That case was then appealed and the Board's power to continue proceedings in the face of a court challenge to its jurisdiction was upheld in Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 et al. (1980), 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Div. Ct.). Reid, J., for the Court, indicated that it was appropriate for the Board to reach a decision on the constitutional matter. He stated the following:
[The Board's decision] includes a very lengthy and careful review of the constitutional issue. The Board did that deliberately. I am conscious that an attitude prevailed in the not too distant past when that might have been deplored by the Court on the ground that the tribunal was dealing with an issue it was not competent to decide. I do not share that view. I agree with the Board's position. The Board's extensive consideration of the constitutional issue in this case was helpful to me at least, and I believe to my colleagues on this Court, when the matter came here for resolution. I think it is helpful in general to have a tribunal address itself to an issue of this type. Among other things, it conduces to the elicitation of the facts relevant to the issue. We might be wholly without them if the tribunal simply threw up its hands and left the issue to the Courts.
In Four B Manufacturing Ltd., [1978] OLRB Rep. Sept. 829, the Board determined that it had the jurisdiction to deal with an application for certification brought by the applicant. The manufacturing operation was located on an Indian reserve and it was therefore claimed by the respondents that it was within federal jurisdiction. The Ontario Divisional Court upheld the Board's determination and that decision was upheld by the Ontario Court of Appeal. The case was then appealed to the Supreme Court of Canada (which did decide that it was a matter of federal jurisdiction). The respondent sought a stay of an order of the Board with respect to the respondent's failure to comply with a previous order arising out of an allegation under section 89 of the Act. In addition, the union filed a bargaining in bad faith charge and the respondent asked that a stay to those proceedings be implemented. The Board refused the stay in both instances. We agree with that approach. In addition, in the instant case there has been a decision of the Supreme Court of Ontario supporting the Board's jurisdiction to proceed in this matter until otherwise determined.
Thus in our view, we have the jurisdiction to proceed. But should we do so? As always, there are competing interests. The respondents argue that if we proceed and either the Board or a court finds that the Board does not have jurisdiction, costs and time will have been unnecessarily expended. The applicant argues that much time will be lost before its rights can be determined if the Board stays proceedings. In determining the convenience with respect to exercising its discretion to order a stay, the Board must take into account these various competing interests. We have done so and decline to order a stay to these proceedings.
We endorse the comments of the Board in the Windsor Airline case, supra:
When faced with a challenge to its constitutional jurisdiction, the Board has a clear duty to consider and rule upon the challenge, and in so doing to recite and analyze the facts as thoroughly as possible. Clear findings of fact, with some comment on the ramifications of the facts for industrial relations policy, will assist the courts in the event of a judicial review of the Board's determination. As the Board put it in Dry Bulk Forwarders Ltd., [1974] OLRB Rep. Sept. 629 at 632:
"The Courts are the great equalizers in the application of constitutional law of principles, but neither they nor the parties should be denied the viewpoints of the inferior tribunals -- viewpoints based upon the viva voce evidence that comes before them. Only in this way can the Courts meaningfully assess the facts upon which the constitutional law of principles must be applied."
It is with those principles in mind that the Board turns to consider the facts and the law applicable in the case before it.
With respect to counsel for the union's request that we add the Attorney General as party and give him notice of these proceedings, counsel referred to Rule 79 of the Board Rules of Procedure. He argued that the Attorney General of Ontario has an interest in these proceedings because Ontario's jurisdiction is involved, and interest is exhibited by the Attorney General's active involvement in the respondent's application to the Supreme Court. He admitted that the Attorney General would not have an interest in the certification application itself, but is interested both as a result of being brought into the earlier case and as a result of the challenge to our jurisdiction. The respondent's position was argued by Mr. Godard, counsel in File Nos. 1272-86-R, 1280-86-R and 1291-86-R. He argued that whether the Attorney General should be brought into the case as a party under Rule 79 or given notice of these proceedings are two different questions. We agree with this distinction. We are not at all persuaded that section 79 applies. However, the question of whether the Attorney General should be given notice is a more difficult one.
It is our view that whether we require that notice be given (or indeed give notice ourselves) is a matter of the Board's discretion: see Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, supra. In our view, section 122 of the Courts of Justice Act, which requires notice to the Attorney General of Ontario and Canada where "the constitutional validity or constitutional applicability" of legislation is involved (or the legislation cannot be "adjudged" invalid or inapplicable) does not apply to this Board. However, this does not end the matter, since principles of fairness do apply. In this case, the applicability of the Ontario Labour Relations Act to these certification applications has been challenged on constitutional grounds. The Board has required notice to the Attorney General when issues under the Canadian Charter of Rights and Freedoms have been raised before the Board. For example, in Dominion Paving Limited, [1986] OLRB Rep. July 946, the Board refused to entertain the constitutional challenge under the Charter where notice had not been given because the Attorney General should be given an opportunity to defend legislation under section 1 of the Charter. The Board also ruled in F. D. V. Construction Ltd., [1986] OLRB Rep. May 617 that it was without jurisdiction to deal with the constitutional challenge to section 1(4) of the Labour Relations Act because proper notice had not been given to the Attorneys General. In that case, the Board proceeded with the merits of the application in case it was wrong on its ruling. Both these cases involve challenges under the Charter of Rights. We do not propose that there are no situations in which notice to the Attorneys General might be appropriate in a division of powers challenge; it is our view that circumstances of the current case do not require notice to be given.
In Charter cases, a possible effect of a successful challenge would be that the impugned provision of the Labour Relations Act or even an entire statute (as in the case of Dominion Paving) would be struck down. The person most able to defend such legislation and explain why it is reasonable and justifiable, under section 1 of the Charter, is the Attorney General. That is not the case with respect to a division of powers issue. Although there are facts at issue in division of power cases, they are more a matter of background facts which the parties are able to adduce. However, a more important (although related) distinction between Charter and division of powers cases is this: in Charter cases, the Board is making a determination about the validity of legislation or of provisions of legislation; in division of power cases, the Board is determining whether or not it can proceed, or, in other words, determining the threshold question of its jurisdiction. There is no danger that we will strike down legislation or any particular provision in a statute. The Board has the power to determine its own jurisdiction, subject to the Courts' overturning such determination. We note, too, that the Attorneys General were given notice of the court proceedings and are aware of the application before this Board and that neither Attorney General has expressed an interest in appearing before us in any capacity. Accordingly, we conclude that it is not necessary to give notice to the Attorney General in this instance.
[Remainder of decision omitted: Editor]