United Steelworkers of America v. Shaw-Almex Indusries Limited, 1986 CanLII 1534

United Steelworkers of America v. Shaw-Almex Indusries Limited

[1986] OLRB Rep. December 1800

2795-84-U United Steelworkers of America, Complainant, v. Shaw-Almex Indusries Limited, Respondent, v. Group of Employees, Interveners

BEFORE: Harry Freedman, Vice-Chairman, and Board Members R. J. Gallivan and J. Kennedy.

APPEARANCES: Brian Shell, Homer Segu in, and Norm Carriere for the complainant; Michael Gordon, Randolph S. Kinghorne, and John Shaw for the respondent; Michael Horan for the inter­veners.

DECISION OF VICE-CHAIRMAN HARRY FREEDMAN; December 22,1986

I

1. All of the employees of the respondent in the bargaining unit represented by the com­plainant that were employed on April 22, 1983 commenced a lawful strike against the respondent on that date. Shortly after that date, the respondent hired new employees to replace its striking employees in order to continue operations. That strike has continued, as of the last day of hearing in this matter, in February, 1986, for almost three years. This is a complaint that principally arises out of the bargaining that took place between the complainant and respondent at the end of 1984. It alleges that the respondent violated sections 15, 64 and 66 of the Labour Relations Act by taking the position in bargaining that the striking employees would only be recalled to work in order of seniority as vacancies arose and then by subsequently withdrawing its outstanding monetary pro­posal to the complainant when its offer had not been accepted.

2. On December 12, 1984 the complainant had purported to accept all of the elements of the respondent's offer made to it on December 11th, 1984 except the return to work provision referred to above. The complainant was concerned that the striking employees, all of whom had more than two years seniority when the strike began, and some of whom had more than fifteen years seniority at that time, might never be recalled because the respondent had hired new employ­ees to replace the striking employees during the strike and had been operating throughout the strike.

3. This complaint was filed with the Board in January, 1985. As a result of the illness of a principal witness in this matter, the first hearings did not take place until May 1985, with the hear­ings before this panel of the Board commencing in June, 1985. This matter consumed thirteen days of hearing scheduled over nine months, with the hearing concluding on February 13, 1986. Most of the evidence in the hearing related to one and one-half days of bargaining between the respondent and complainant on December 11, and the morning of December 12, 1984.

II

4. Before reviewing the factual and legal issues that arise in this complaint, we make the following preliminary observation. It became apparent to us during the hearing that the parties' bargaining conduct graphically illustrated the danger Professor Archibald Cox described in the fol­lowing passage in "The Duty to Bargain in Good Faith", (1958), 71 Harv. L. Rev. 1401 at 1440, that might result from labour board review of collective bargaining:

"There is also a danger that the regulation of collective bargaining procedures may cause negoti­ators to bargain with a view toward making the strongest record for NLRB scrutiny. The report of the Truitt negotiations bears ample evidence of the jockeying of lawyers Truitt M.F.G. Co., 110 N.L.R.B. 8561. Hammering out a labour agreement requires all the negotiator's skill and attention. To divert them from the main task by putting a value on building up or defeating an unfair labour-practice case diminishes the likelihood that the negotiations will be successful."

5. The complainant and respondent were distrustful and suspicious of one another. Homer Seguin, a Regional Representative of the complainant and the complainant's spokesman during the negotiations in December 1984, Johnathan Shaw, the respondent's official responsible for sales and marketing of the respondent's products in Asia, communications and labour relations, and James Heather, a labour relations consultant retained by Mr. Shaw at the time the strike com­menced to assist in collective bargaining, all testified to that effect. The complainant suspected that the respondent was bargaining with a view to getting rid of complainant as the employees' bargain­ing agent, while the respondent felt, not unreasonably, that unfair labour practice charges would be filed with the Board if the complainant followed its previous pattern of filing new unfair labour practice complaints after every time the parties met in bargaining from the commencement of the strike in 1983.

6. Mr. Seguin testified that when he spoke in early December 1984 with Doris Shaw, a principal of the respondent and Mr. Shaw's mother, she advised him that Johnathan Shaw was the respondent's official who dealt with labour relations and that Mr. Heather was the respondent's advisor and spokesman. She also told Mr. Seguin that because of the complainant's charges, the respondent was very careful about anything it said to the complainant.

7. The air of mutual distrust and suspicion was not dispelled prior to, during the bargain­ing meetings of December 11th and 12th, or afterwards. Indeed, the complainant purported to accept the respondent's offer except for the back to work proposal in order to find out whether the respondent was acting in the way the complainant suspected. Mr. Seguin testified in his examina­tion in chief that the bargaining committee was quite agitated about the discussions that had taken place in the afternoon of December 11th. Mr. Seguin told the complainant's bargaining committee that there should be more discussion with the respondent to see "if we were right about the com­pany being on a union busting binge" or to try and settle the strike even if it hurts. Mr. Seguin asked Mr. Heather for a written proposal. When Mr. Heather presented that proposal to the com­plainant that evening, Mr. Heather commented that it may be exhibit #1. Mr. Heather testified that it was a facetious comment based on what had taken place in bargaining up to that point. Mr. Heather was concerned that every time the parties sat down to bargain, they ended up before the Board in another unfair labour practice proceeding. Mr. Heather also testified that his concern was justified since these proceedings were also commenced after the bargaining that took place between the parties in December.

III

8. The portion of the complaint alleging that the respondent violated sections 64 and 66 in particular make section 89(5) of the Act applicable to the claims that the respondent dealt with its striking employees contrary to the Act in respect of their employment, opportunity for employ­ment or conditions of employment. Counsel for the respondent submitted that section 89(5) of the Labour Relations Act was of no force or effect because it was contrary to section 15(1) of the Constitution Act, 1982, of which the Canadian Charter of Rights and Freedoms is a part.

9. In our view, it is appropriate and, indeed, may be incumbent on the Board for it to deal with an argument that a statutory provision affecting the Board's jurisdiction or its procedures is contrary to some provision of the Constitution. See Third Dimension Manufacturing Ltd. [1983] OLRB Rep. Feb. 261; Constellation Hotel Corporation Ltd., [1983] OLRB Rep. March 335; Knob Hill Farm Ltd., [1983] OLRB Rep. July 1087; Sault College of Applied Arts and Technology, [1985] OLRB Rep. Aug. 1293. Section 52(1) of the Constitution Act, 1982 provides:

"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

In exercising its powers and performing its duties conferred or imposed on it by statute the Board must act in accordance with the law. If we are persuaded that a provision of the Labour Relations Act is inconsistent with the Constitution of Canada, then we are obliged by section 52(1) not to give any force or effect to the inconsistent provision. In doing so, we are merely applying the law as we understand it. In this circumstance, we need not exercise the power conferred by section 24 of the Charter. See Regina v. Big M Drug Mart Limited, (1985), 1985 CanLII 69 (SCC), 18 D.L.R. (4th) 321 (S.C.C.).

10. While addressing ourselves to the Charter issues raised by counsel, it is also important to bear in mind the admonition of the Ontario Court of Appeal in Service Employees International Union, Local 204 v. Broadway Manor Nursing Home (1984), 1984 CanLII 2112 (ON CA), 48 O.R. (2d) 225; 13 D.L.R. (4th) 220, where the Court wrote at page 249 (O.R.):

"Having regard to our interpretation of s.13 of the Act, no Charter issue arises. In Law Society

of Upper Canada v. Skapinker, a judgment of the Supreme Court of Canada, released May 3,

1984, and as yet unreported [since reported 1984 CanLII 3 (SCC), 9 D.L.R. (4th) 161, ii C.C.C. (3d) 481, 8 C.R.R.

19831, Estey J. stated at p. 181:

'The development of the Charter as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken.'

In the circumstances, it would not be appropriate for us to express any opinion on the Charter issues considered in the court below."

In our respectful view, the Court's approach is particularly applicable to the Board in respect of constitutional issues. Those issues ought to be dealt with by us only when it is necessary to do so because it is the Board's principal function to determine labour relations issues, not matters of gen­eral law or constitutional law.

IV

11. During argument, the Board questioned counsel for the respondent as to whether sec­tion 15 of the Charter had any application to this proceeding since the complaint was filed before April 17, 1985, the date that section 15 of the Charter came into force. We are now satisfied that section 15 of the Charter does apply to this proceeding.

12. Section 89(5) of the Labour Relations Act provides that the burden of proof is on the employer to affirmatively establish that it did not violate the Act in respect of the allegations that are set out in that subsection. That burden can only become relevant when the Board weighs the evidence at the end of the hearing. (See ICB Warehousing, division of Alla're Anson, [1976] OLRB Rep. Oct. 621 at 632.) While the Board has referred to section 89(5) in determining the order of proceedings before it as section 89(5) deals with the burden of proof, it can only be of con­cern to the Board when engaging in its decision-making. Since the hearings in this matter con­cluded in February, 1986, after section 15 of the Charter came into force, the Board's reliance on section 89(5) of the Labour Relations Act in this proceeding took place when section 15 of the Charter was in force. Therefore, we are satisfied that the validity of section 89(5) of the Labour Relations Act is subject to section 15 of the Charter in this case.

13. The reversal of the burden of proof is not ordinarily a factor in the Board's decision-making process. That is, the Board weighs the evidence presented during the course of the hear­ing, makes findings of fact based on the evidence, draws reasonable inferences from those facts and then reaches a conclusion with respect to the factual issues presented. Recourse is had to the burden of proof where the evidence is so evenly balanced that the Board cannot decide on the bal­ance of probabilities what the resolution of the factual issues ought to be. This process was described in The Barrie Examiner, [1975] OLRB Rep. Oct. 745 where the Chairman of the Board at that time wrote at page 748:

The onus of proof only comes into play after the trier-of-fact has found the evidence to be so evenly balanced that no clear conclusion can be drawn. See Robins v. National Trust Co. Ltd., 1927 CanLII 469 (UK JCPC), [1927] 2 D.L.R. 97 (J.C.P.C.). In this situation, the trier-of-fact must then fall back upon the rule relating to the location of the onus of proof, and make an evidential finding against the party upon whom the burden rests. Rules as to the onus, therefore, are rules of evidence, estab­lishing a procedure to be followed where the evidence of two opposing parties is evenly bal­anced. Support for this conclusion can be found in R. v Krumps, 11931 CanLII 400 (MB CA), 1931] 3 D.L.R. 767 (Man. C.A.); dicta to the same effect can be found in Attorney General v. Halliday, [1866-67] U.C.Q.B. 397 and Sanders v. Malsbury, (1882), 1 OR. 178

14. This approach was recently adopted by the Board in R. P. K. C. Holding Corporation, [1986] OLRB Rep. June 828 where the Board wrote:

"As noted above, Mr. Filion also argued that section 89(5) of the Act offends section 15(1) of the Charter. However, in the circumstances of this case, we find it unnecessary to deal with that argument. As noted by the Board in paragraph 8 of Knob Hill Farms Limited, supra, section 89(5) 'is only triggered where there is no evidence before the Board or where the evidence before the Board is equally balanced.' Neither of those situations obtains in the instant case. Thus, it has been unnecessary for us to apply section 89(5) in deciding the Union's section 89 complaint."

15. Counsel for the respondent submits that the Board must decide at the outset of its deci­sion-making where the burden of proof lies. Counsel argued that the Board rarely explicitly invokes the reverse onus under section 89(5), but nevertheless may rely on it during its decision-making. Counsel submitted that unless the Board was prepared to say that it would not have regard to the reverse onus under section 89(5) if the Board found against the respondent, it and its counsel would not know whether an unconstitutional law was used by the Board in reaching its decision.

16. While we do not accept counsel's submission as to when the Board must decide where the legal burden of proof lies, we have found it necessary in this case to deal with the validity of section 89(5) of the Labour Relations Act in weighing the evidence that was presented to us since we have resorted to it in making some of our determinations. In doing so, we of course recognize that there is technically a mixed burden of proof with respect to the issues before us in this pro­ceeding. We are aware of the allegations that give rise to the shifting of the burden of proof under section 89(5), and those that do not. We appreciate that there may be factual issues, and in partic­ular, findings of fact based on inferential reasoning that may be affected by section 89(5) of the Act.

17. In the Barrie Examiner case, supra, the Board discussed the process of inferential rea­soning that must often be used in cases where section 89(5) of the Act is applicable, although not necessarily relied upon, at pages 747-749:

"The location of the onus of proof is an important consideration in cases such as this one. The reasons, or reason, behind the discharge of an employee occurring in the context of union activ­ity are best determined by an examination of the objective circumstances surrounding the dis­charge. In other words, the circumstantial evidence surrounding the discharge must be exam­ined and inferences drawn from that evidence. There are two competing inferences that can be drawn - either that the discharge was motivated by an anti-union animus or that the discharge was for some reason totally unrelated to the presence of union activity at or around the time of discharge. The Board must determine which of the two inferences is the more probable. In many cases, however, often because of the unsatisfactory nature of the evidence, it may be diffi­cult to draw either inference with much certainty. In such cases, where the evidence is equally balanced, a decision can only be rendered by resorting to the onus of proof. Since neither party can establish a case on the balance of probabilities, the case can only be determined by deciding against the party upon whom the burden of proof rests....

What then is the extent of the burden of proof that has been shifted by statute to the respon­dent? The Acts speaks of the burden of proof 'that any employer ... did not act contrary to this Act'. In its earlier decisions, this Board has stated that, even if only one of the reasons for a dis­charge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd., [19741 OLRB Rep. July 450. In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of prob­abilities in order for the employer to establish that no violation of the Act has occurred."

V

18. Counsel for the respondent argued that section 89(5) contravenes section 15 of the Canadian Charter of Rights and Freedoms because section 89(5) imposes a burden of proof that would not otherwise exist only on employers that are alleged to have engaged in certain conduct contrary to the Labour Relations Act, but not on persons or organizations who are not employers that are alleged to have violated the Act. Since section 15 provides that every individual is equal before and under the law and has the right to equal protection and benefit of the law without dis­crimination, section 89(5) of the Labour Relations Act, which applies only to a division or class of individuals who are employers, discriminates between members of that class, that is, employers and all other individuals who are subject to the Labour Relations Act by imposing the burden of proof to establish that persons in that class did not violate the Labour Relations Act and by not imposing that burden on others who are subject to the Labour Relations Act. The right of employ­ers, counsel submitted, to equal protection and benefit of the law has been abrogated by section 89(5) since it imposes the obligation on employers to prove that they did not engage in conduct contrary to the Act while any person who is not an employer can require the complaining party to prove its case. Thus, there is a prima facie violation of section 15 of the Charter that is not saved by section 1 of the Charter.

19. Section 15(1) of the Charter provides:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabili­ty.

Counsel for the complainant contended that the respondent in this case is not an individual, but is a corporation and therefore does not have the status to plead that section 89(5) of the Act is dis­criminatory since corporations do not have any rights that are conferred by section 15. In our opin­ion, the respondent, while not an individual, does have standing to raise the argument that any law that affects it is unconstitutional although none of the rights conferred expressly on it by the Con­stitution have been violated.

20. We accept that corporations have not been given the rights that are conferred on indi­viduals by section 15. See Hogg, Constitutional Law of Canada, 2nd edition, at pages 667 and at 798:

"Section 15 confers its equality rights on 'every individual'. This is a more specific term than everyone', 'any person' or 'anyone', and it probably excludes a corporation, at least in the con­text of an instrument which also contains the more general terms. The word 'individual' was substituted for 'everyone' during the legislative history of s. 15. The only purpose of this change could be to deny equality rights to corporations, an intelligible purpose having regard to national economic policies regarding investment, banking and energy that discriminate against corporations of foreign origin.

Section 15 applies to every 'individual'. The word 'individual' was substituted for 'everyone during the legislative history. This change probably has the effect of denying equality rights to corporations."

Mr. Justice Strayer of the Federal Court, Trial Division, in Smith, Kline and French Laboratories Limited v. Attorney General of Canada, (1985), 1985 CanLII 5509 (FC), 24 D.L.R. (4th) 321 wrote at page 352:

"It is clear that the term 'individual' does not include bodies corporate. Therefore the corporate plaintiffs have no claim under paragraph 1(a) of the Canadian Bill of Rights."

and at page 365:

"For the same reasons as noted above in connection with paragraph 1(a) of the Canadian Bill of Rights, the corporate plaintiffs are not potentially within the protection of section 15 of the Charter] because it applies only to 'every individual'."

See also Aluminium Co. of Canada Ltd. v. The Queen, (1986), 1986 CanLII 2833 (ON HCJ), 55 O.R. (2d) 522 (Div.Ct) and the decision of Mr. Justice Hughes in Arlington Crane Services Ltd. v. Minister of Labour, unreported, May 27, 1986 where he wrote:

"No Canadian court so far pronouncing upon this section [section 15 of the Charter] in the case cited before me has found that the word 'individual' standing in relation to the specified grounds of discrimination can include a corporation. When used as a noun - as it is in section 15(1) - it must lexicographically refer only to a single human being and it is clear that by using this word Parliament sought to avoid 'every person' which must have included a corporation and 'every one', which might have done."

21. Nevertheless, if the law is unconstitutional, it is unconstitutional for everyone, not just for persons whose rights have been violated. This was the view of the Supreme Court of Canada of a similar argument made in Regina v. Big M Drug Mart Ltd., supra, where the court wrote at page 399-401:

"Standing and jurisdiction to challenge the validity of a law pursuant to which one is being pros­ecuted is the same regardless of whether that challenge is with respect to ss. 91 and 92 of the Constitution Act, 1867 or with respect to the limits imposed on the Legislatures by the Constitution Act, 1982.

Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s.24 is unnecessary and the particular effect on the challenging party is irrelevant.

Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be con­victed of an offence under an unconstitutional law. The respondent did not come to court volun­tarily as an interested citizen asking for a prerogative declaration that a statute is unconstitution­al. If it had been engaged in such 'public interest litigation' it would have had to fulfil the status requirements laid down by this Court in the trilogy of 'standing' cases (Thorson v. A.G. Can. et al. (No.2) (1974), 1974 CanLII 6 (SCC), 43 D.L.R. (3d) 1, [1975] 1 5CR. 138,1 N.R. 225; Nova Scotia Board of Censors v. McNeil (1975), 1975 CanLII 14 (SCC), 55 D.L.R. (3d) 632, [1976] 2 1968 CanLII 828 (BC SC), 5CR. 265, 32 C.R.N.S. 376; Minister of Justice of Canada etal. v. Borowski (1981), 1981 CanLII 34 (SCC), 64 C.C.C. (2d) 97, 130 D.L.R. (3d) 588, [198112 S.C.R. 575, but that was not the reason for its appearance in court.

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s.2(a) of the Charter and by reason of s.52 of the Constitution Act, 1982, it is of no force or effect.

Whether a corporation can enjoy or exercise freedom of religion is therefore irrelevant. The res­pondent is arguing that the legislation is constitutionally invalid because it impairs freedom of religion - if the law impairs freedom of religion it does not matter whether that company can possess religious belief. An accused atheist would be equally entitled to resist a charge under the Act. The only way this question might be relevant would be if s.2(a) were interpreted as limited to protecting only those persons who could prove a genuinely held religious belief. I can see no basis to so limit the breadth of s.2(a) in this case.

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s.2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s.2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Moslem, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. As Mr. Justice Laycraft observed in the Alberta Court of Appeal at pp. 320-1 C.C.C., p. 131 D.L.R., p. 636 (W.W.R.):

'The task of the court is to see whether all or part of the Lord's Day Act is inconsis­tent with freedom of conscience and religion and therefore of no force or effect. It does not affect that task that a person charged has no religion or even that he has no feelings of conscience.'

Mr. Justice Cartwright, dissenting in Robertson and Rosetanni v. The Queen, 1963 CanLII 17 (SCC), [1964] 1 C.C.C. 1, 41 D.L.R. (2d) 485, [1963] S.C.R. 651, though not in conflict with the majority of the court on this point, stated at p. 4 C.C.C. pp. 488-9 D.L.R., p. 661 S.C.R.:

'It was argued that, in any event, in the case at bar the appeal must fail because there is no evidence that the appellants do not hold the religious belief that they are under no obligation to observe Sunday. In my view such evidence would be irrelevant. The task of the Court is to determine whether s.4 of the Act infringes freedom of religion. This does not depend on the religious persuasion, if any, of the individual prosecuted but on the nature of the law. To give an extreme example, a law providing that every person in Canada should, on pain of fine or imprisonment, attend divine service in an Anglican church on at least one Sunday in every month would, in my opinion, infringe the religious freedom of every Anglican as well as that of every other citizen.'

As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself uncon­stitutional, it is quite another to claim a "constitutional exemption" from otherwise valid legisla­tion, which offends one's religious tenets.

In my view, there can be no question that the respondent is entitled to challenge the validity of the Lord's Day Act on the basis that it violates the Charter guarantee of freedom of conscience and religion."

22. Therefore, we are satisfied that the respondent is entitled to claim that section 89(5) of the Labour Relations Act is contrary to the Constitution of Canada on the basis that it conflicts with section 15 of the Charter.

VI

23. Having decided that the respondent can assert the claim that section 89(5) violates sec­tion 15 of the Charter, we must analyze section 15 in order to determine whether individuals who are employers are, as employers, "equal before and under the law" or if individuals, when acting as employers, have "the right to equal protection and equal benefit of the law without discrimina­tion."

24. In approaching this interpretation issue, we must keep in mind the following statements of the Supreme Court of Canada. In Hunter v. Southam, (1984), 1984 CanLII 33 (SCC), 11 D.L.R. (4th) 641 the Court wrote at 649-651:

"The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence. It is contained in Viscount Sankey's classic formula­tion in Re s.24 of B.N.A. Act; Edwards v. AG. Can., 1929 CanLII 438 (UK JCPC), [1930] 1 D.L.R. 98 at pp. 106-7; [19301 A.C. 124 at pp. 136-7; [1929] 3 W.W.R. 479, cited and applied in countless Canadian cases.

'The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Cana­da....

Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical con­struction, but rather to give it a large and liberal interpretation...'.

More recently, in Minister of Home Affairs et at. v. Fisher et at., [1980] A.C. 319 at p.329, deal­ing with the Bermudian Constitution, Lord Wilberforce reiterated that a constitution is a docu­ment 'sui genens, calling for principles of interpretation of its own, suitable to its character', and that as such, a constitution incorporating a Bill of Rights calls for [at p.328]: 'a generous inter­pretation avoiding what has been called 'the austerity of tabulated legalism' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to'. Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects, is also consonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M'Culloch v. State of Maryland (1819), 17 U.S. 316 (4 Wheaton). It is, as well, the approach I intend to take in the present case.

I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive docu­ment. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present case this means, as Prowse J.A. pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures, s.8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of 'reasonable' search and seizure, on these governments. This leads, in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its 'reasonable' or 'unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.

Since the proper approach to the interpretation of the Canadian Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s.8: in other words, to delineate the nature of the interests it is meant to protect."

[emphasis added]

25. The Court later expanded on the proper approach to interpreting the Charter in Regina v. Big M Drug Mart Ltd., supra, at 423-424:

"This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter et at. v. Southam Inc. (decision rendered September 17, 1984) [since reported 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, [1984] 2 S.C.R. 145] this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view, this analysis is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the his­torical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Can­ada v. Skapinker (1984), 1984 CanLII 3 (SCC), 11 C.C.C. (3d) 481,9 D.I.R. (4th) 161, [1984] 1 S.C.R. 357, illustrates, be placed in proper linguistic, philosophic and historical contexts."

26. Using the approach to the interpretation of the Charter that the Supreme Court of Can­ada has adopted, we must examine the rights guaranteed by section 15 of the Charter by reference to the purpose of the guarantee. We must divine the purpose of section 15 from the "interests it was meant to protect." These interests are to be determined by an examination of "the character and larger objects of the Charter... the language chosen to articulate the specific right or freedom,...the historical origin of the concepts enshrined, and where applicable,.. the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter."

27. Section 15 guarantees an equality right for individuals. While anyone may resist the application of an unconstitutional law by reason of section 52(1) of the Constitution Act, it still remains to be determined whether individuals who are employers are a class, the unequal treat­ment of which is contrary to section 15 of the Charter. In this regard, it is useful to refer to the fol­lowing comments of Howland, C.J.O. and Robins, J.A. in their minority judgment in the Education Reference, (1986), 1986 CanLII 2863 (ON CA), 53 O.R. (2d) 513 at 554:

"In our view. s.15(1) read as a whole constitutes a compendious expression of a positive right to equality in both the substance and the administration of the law. It is an all-encompassing right governing all legislative action. Like the ideals of 'equal justice' and 'equal access to the law'~ the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly tree and democratic society that all persons should be treated by the law on a footing of equality with equal concern and equal respect.

This is not to suggest that s.15(1) requires that every person in every instance be treated in pre­cisely the same manner. There is no infringement of the section unless the unequal treatment is discriminatory. Most laws provide for distinctions and prescribe different results based on those distinctions. Indeed, a State could not function without classifying its citizens for various pur­poses and treating some differently from others. As Mr. Justice Stewart pointed out in his dis­cussion of the equal protection clause of the U.S. Fourteenth Amendment in San Antonio School District v. Rodriguez (1973), 411 U.S. I at p.60: 'There is hardly a law on the books that does not affect some people differently from others.' Similarly, although spoken in a different context, Chief Justice Dickson said at p.347 5CR., p. 362 D.L.R. of Big M Drug Mart Ltd., supra '...the interests of true equality may well require differentiation in treatment'. This Court in Re McDonald and The Queen (1985), 1985 CanLII 162 (ON CA), 51 OR. (2d) 745 at p. 765,21 D.L.R. (4th) 397 at p. 417, 21 CCC. (3d) 330, speaking through Morden JA., accepted that '[ut can reasonably be said, in broad terms, that the purpose of s.15 is to require that those who are similarly situated be treated similarly.' This analysis is appropriate to the subject-matter of this reference and, so far as the issue arises, can aptly be applied. However, on the view we take of the relationship between s.15(1) and Bill 30, there is no need to consider either the various tests that have been developed to assess the legitimacy of particular statutory classifications or the various approaches that have been suggested with respect to the application of s.15(1): see Gold, 'A Principled Approach to Equality Rights: A Preliminary Inquiry', supra, at pp. 800-1; Re McDo­nald and The Queen, at pp. 763-5 OR., pp. 415-7 D.L.R.

Section 15(1) forbids governments, in respect of all matters within their legislative authority, from denying to individuals, and similarly to groups of individuals, the equal protection and equal benefit of the law on a discriminatory basis. For greater particularity, the section enumerates specific prohibited grounds of discrimination. Not unexpectedly, religion is one....

[emphasis added]

We are also assisted in our approach by the following analysis of Mr. Justice Strayer in Smith, Kline & French Laboratories Ltd. v. A. G. Canada, supra, at 367-369:

"A threshold problem in the application of s-s. 15(1) is to ascertain its relationship to s.l of the Charter. Section 1 reads as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstr­ably justified in a free and democratic society.

If an impugned legislative provision is not found to contravene the requirements of s-s. 15(1), then the question of the application of s.l does not arise. If, on the other hand, a legislative pro­vision is found prima facie to contravene s-s. 15(1), then the government or any one else attempting to uphold the legislative provision, if it or he is to invoke s.t, has the onus of demon­strating that the restriction in question is reasonable, is clearly prescribed by law and is 'justified in a free and democratic society'. Thus, it can be of critical importance to know whether the impugned legislation prima facie conflicts with s-s. 15(1). If it does not, that is the end of the matter. But if it does, and if as in the present case the defendant seeking to uphold the legisla­tion does not invoke s. 1 by way of evidence or argument, then the legislative provision must be found invalid. This makes extremely important the breadth of s.15's prohibitions against any legislation which draws distinctions among citizens.

It appears to me that by its express references to certain forms of discrimination, namely, 'race, national or ethnic origin, colour, religion, sex, age or mental or physical disability', s-s. 15(1) is clearly intended to proscribe any distinctions based on those grounds. Any such distinctions, if they are to be defended, must be justified under st. It may be that distinctions based on certain grounds such as age may be more readily justified under s. 1, but the onus must be on the defender of such a distinction even then.

With respect to other kinds of distinctions which may be made by legislation, it appears to me that no such presumptions arises of discrimination and that it is necessary to analyze such distinctions more closely to determine whether they can be regarded as in conflict with s-s. 15(1). 1 do not think it could have been the intention that every distinction drawn by legislation between citizens or classes of citizens should automatically be regarded as 'discrimination' within s-s. 15(1) and thus immediately cause a shift in onus to a defender of the legislation to justify it under s.1. ft is the business of legislatures to make distinctions for a myriad of reasons and it is inconceivable that every one of these should place on the government, or on any one else relying on such legisla­tion, the onus of showing that it is 'justified in a free and democratic society'. This would shift to the courts a decisional right and burden which would be unacceptable both to them and the leg­islatures.

One must therefore seek criteria to aid in determining whether a legislative distinction creates an inequality which is discriminatory, taking 'discrimination' to mean the kind of distinction pro­hibited by s-s. 15(1). It would not, I think, be appropriate to rely solely on tests commonly used with respect to the interpretation of para. 1(b) of the Canadian Bill of Rights, having regard to the more narrow scope of that provision and the statutory nature of the instrument in which it was found. I would, however, with respect adopt the language of McIntyre J. with whom Dick­son J. concurred in MacKay v. The Queen (1980), 1980 CanLII 217 (SCC), 114 D.L.R. (3d) 393 at p.423, 54 C.C.C. (2d) 129, [1980] 2 S.C.R. 370 at p. 406 (also quoted, supra):

'The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class - here the military - is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a neces­sary variation from the general principle of universal application of law to meet spe­cial conditions and to attain a necessary and desirable social objective.'

I would respectfully observe that in my view there is no magic in the concept of a 'class': it has no definition, provides no standard, but is merely a subjective concept. It can therefore not, by itself, be a basis for determining, when a 'class' is somehow created or divided legislatively, that discrimination exists. It appears to me that this was not the sense in which McIntyre J. made ref­erence to a 'special class' and all I understand him to be saying is that if a certain number of peo­ple in society are treated differently there should be a rational basis for distinguishing between them and the rest of society."

[emphasis added]

28. In our view, that analysis provides the appropriate perspective to use in determining what "interests it [section 15] was meant to protect" and therefore enable us to decide whether the equality rights created by section 15 have been infringed by section 89(5) of the Act. In Homemade Winecrafts (Canada) Ltd. v. Attorney General of British Columbia, (1986), 1986 CanLII 1284 (BC SC), 26 D.L.R. (4th) 468 (B.S.S.C.), MacKay, J. in finding that a regulation prohibiting the sale of a particular product did not contravene section 15 of the Charter stated at page 471-472:

"As well McTaggart L.J.S.C. made mention of the legislative history of the drafting of the sec­tion. I assume he was referring to the fact that in the Proposed Constitutional Resolution of October, 1980. the non-discrimination protections were given to 'everyone'. The change, in my view, was to make it abundantly clear that the non-discriminatory protection afforded by s. 15 was directed at natural persons. Human dignity is what is sought to be enhanced and preserved -regardless of such personal characteristics as 'race, national or ethnic origin, colour, religion, sex, age or mental or physical disability'. To hold otherwise, would, in my view, lessen the high ideals enshrined in s. 15 of the Charter."

The Divisional Court in Aluminium Co. of Canada Ltd. v. The Queen, supra, expressed a similar opinion when it wrote at page 531:

"In my view, section 15 is restricted to the protection of individuals and does not apply to corpo­rate entities. It is a part of the Charter that protects the dignity and worth of human beings against governmental intrusion that would make distinction between individuals based upon human attributes or characteristics."

29. For a distinction to be contrary to section 15 of the Charter, we believe that it must be based on some inappropriate ground. Mr. Justice Dea in Cabre Explorations Ltd. v. Arndt, (1986), 1986 CanLII 1642 (AB QB), 28 D.L.R. (4d) 747 (Alta. Q.B.) succinctly stated this test at 751:

"'Discrimination' as it appears in s. 15 of the Charter involves something more than simple choice. Such must be the situation at least in those cases where the grounds of discrimination as in this case are not grounds listed in the section itself. To find prohibited discrimination one looks for elements treating individuals belonging to certain groups differently from others based on criteria that are unfair or irrelevant."

In Andrews v. Law Society of British Columbia, (1985), 1985 CanLII 604 (BC SC), 22 D.L.R. (4th) 9, Mr. Justice Taylor wrote at page 16:

"Without attempting an exhaustive definition, I would say that the essence of discrimination for the present purpose is the drawing of an irrational distinction between people based on some irrelevant personal characteristic for the purpose, or having the effect, of imposing on certain of them a penalty, disadvantage or indignity, or denying them an advantage. Some of the personal characteristics which might form a basis for discrimination are listed in s.15(l), but I do not think this is intended as a complete listing."

[emphasis added]

30. The enumerated classifications or distinctions that are prima facie discriminatory within the meaning section 15 of the Charter are classifications or distinctions that are based principally on characteristics that relate to the physical, cultural, and spiritual attributes of human beings. While the enumerated distinctions set out in section 15 and other unenumerated distinctions between individuals that are similar in import may require section 1 of the Charter to justify their existence in legislation, it seems patent to us that a distinction between individuals because they are employ­ers is far different. In our opinion, that type of distinction is what Mr. Justice Strayer was referring to in Smith, Kline & French Laboratories Ltd., v. A.G. Canada, supra. The distinction in section 89(5) of the Labour Relations Act between individuals that arises because an individual is an employer does not in any way limit or affect human dignity or worth nor is it based on the kind of human attributes that section 15 of the Charter protects. In any event, it appears to us that distinc­tions created by the Labour Relations Act between employers and persons who are not employers are not irrational, irrelevant or unfair. Therefore, we find that the distinction in section 89(5) of the Labour Relations Act between employers and other persons who are subject to the Act is a dis­tinction that is not contrary to section 15 of the Canadian Charter of Rights and Freedoms.

31. Section 15 creates rights applicable to individuals, that is, human beings, by establishing equality rights for individuals because they are individuals or belong to a class of individuals. We are satisfied that the distinction that section 89(5) of the Act creates for employers as a class within our society is not discriminatory and is therefore not a distinction to which section 15 of the Charter has any application. In view of our conclusion we expressly decline to comment on whether section 1 of the Charter provides justification for section 89(5) of the Act.

VII

32. The history of bargaining between the complainant and the respondent was fully set out in the Board's decision involving these parties dated October 10, 1984 (see Shaw Almex Industries Limited, [1984] OLRB Rep. Oct. 1502, at paragraphs 2-25.) To the extent that the bargaining his­tory prior to October 1984 is relevant, there is no issue between the parties as to the propriety of this panel of the Board having regard to the findings described in that decision. The Board in that case, by a majority, W. F. Rutherford dissenting, found that while the positions taken by the res­pondent and its conduct for the most part during bargaining did not constitute a breach of the duty to bargain in good faith, the respondent's failure to respond to the complainant's proposal and to meet shortly after September 1983 did contravene section 15 of the Labour Relations Act. The Board wrote at paragraphs 30-3 1 of that decision:

"30. Having said all that, we must make it clear that we have carefully considered all of the evi­dence to determine whether the respondent's behaviour betrays a desire to avoid making a col­lective agreement. While we are not without our doubts about the motivation for some of the respondent's actions, on the evidence now before us we cannot find, on the balance of probabili­ties, that the respondent was not prepared to enter into a collective agreement or sought to avoid doing so. It has revealed, when asked, the terms of which it says it is prepared to agree. If the respondent has been bluffing, the union has not yet called its bluff.

31. We have found that the respondent failed to 'bargain in good faith and make every reason­able effort to make a collective agreement' in the period immediately following the meeting of September 26, 1983. We do not find the more extensive violation alleged by the complain­ant "

32. As a result of the Board's decision, discussions ensued between the representatives of the parties to resume negotiations. Counsel for the complainant wrote the following letter to Mr. Heather:

"It was a pleasure talking with you this afternoon. I am writing to confirm my advice to you that in an effort to resolve all outstanding matters and in view of the direction from the Ontario Labour Relations Board contained in its recent decision involving the above-captioned parties, I advised you that henceforth Mr. Homer Seguin, Regional Representative, United Steelworkers of America, 92 Frood Road, Sudbury, Ontario P3C 4Z4, telephone (705) 675-2461 shall be the chief union spokesperson and negotiator.

I know that Mr. Seguin shall be available for the bargaining session which you and I discussed today. I am writing to confirm your advice that you do not think it would be any problem for a meeting to be scheduled within the next 'fortnight' and I shall make myself available to Mr. Seguin to be of whatever assistance is necessary to resolve this bitter and difficult situation.

I have asked Mr. Seguin to contact you directly to make arrangements for a bargaining session. I leave it to you and to Mr. Seguin to determine what assistance, if any, you desire from either of Mr. Illing or Mr. Skinner.

I can assure you that United Steelworkers of America shall continue to negotiate with the view to resolving the strike."

34. Mr. Heather, in attempting to arrange a meeting, wrote to Ray Illing, Director of Medi­ation and Conciliation Services for the Ministry of Labour, and copied that letter to Mr. Seguin. That letter stated:

"This will serve to confirm that Shaw-Almex Limited will attend at your office for the purpose of an 'off the record meeting' in accordance with the description of such a meeting as set out by Mr. Patterson in his November 8, 1984 letter.

I have discussed this with Mr. Seguin, who has taken over this matter for the Steelworkers, and I look forward to a fruitful discussion.

As I indicated to you I will seek assurance from you that this meeting will fall into the category to which Mr. Patterson makes reference. Notwithstanding what has been indicated to the con­trary, the July 9th meeting was referred to as one 'away from the bargaining table.'"

(The reference in Mr. Heather's letter to Mr. Patterson's letter of November 8, 1984, related to a letter from David Patterson, a Director of the complainant, to Mr. Illing. Mr. Patterson's letter was part of exhibit #33 in this matter.) The "off the record" meeting contemplated in Mr. Heath­er's letter was described in Mr. Patterson's letter as follows:

"We are both aware of the procedures and protocol employed by you when arranging and hold­ing 'off the record meetings' to get things going in difficult situations. You have dealt with me on a number of occasions under some very difficult circumstances, and you are aware that I have always acted in an above board and straightforward manner.

Such meetings have, in the past, been useful in obtaining settlements for the parties and I look to you and your Minister to continue your efforts in this matter and will co-operate with you as we have in this and other occasions."

35. Mr. Seguin wrote to Mr. Heather in reply by letter dated December 7, 1984. That letter stated:

"1 received a copy of your letter to Mr. Ray Illing dated December 3, 1984.

I was surprised that you are not communicating with me directly. At no time have you and I agreed that communications between us would be directed through Mr. Illing. Please call me if you would like to discuss this matter. I think you and I have enough experience in collective bar­gaining to talk to each other directly.

With respect to the terms which you appear to be setting for the upcoming meetings at Mr. Ill­ing's office scheduled for December 11/84, if you are requiring that the meeting be on a 'without prejudice' basis, I am very concerned. At no time in your discussion with Mr. Shell or in subse­quent discussions between you and me did you set or indicate any desire to set special conditions for the up-coming collective bargaining session.

I would appreciate it if you would confirm to me why it is we cannot have a normal collective bargaining session and try to work out a resolution of our differences. I am mindful of the direc­tion of the Board in its recent decision. I can see no reason for the negotiations to be subject to special rules.

I am prepared to meet with you and Mr. Illing to discuss this matter and beyond it to resolve the labour dispute. We shall be prepared to negotiate non-stop until we achieve a settlement."

36. When Mr. Seguin spoke with Mr. Heather about the upcoming negotiation meeting, they discussed various concerns about the bargaining that had taken place. Mr. Seguin expressed the hope that as he was now taking over as spokesman, and had had a previous relationship with the principals of the respondent, a collective agreement could be reached. During that conversa­tion, the suggestion that Mr. Seguin might speak to Mrs. Shaw was made.

37. Although Mr. Seguin thought that the negotiations would continue until a settlement of the contract was reached, there was no express agreement between the respondent and the com­plainant to continue negotiations beyond December 11, 1984. The parties did meet on that day. Mr. Shaw and Mr. Heather represented the respondent. Mr. Seguin was the spokesman for the complainant's bargaining committee. While most of the day was taken up with "off the record" discussions about which we received no evidence, there was evidence led that the parties met face to face at about 4:00 p.m. on that day. The complainant made a proposal to the respondent orally by which it reviewed the items still in dispute, withdrew its demand with respect to non-bargaining unit employees performing bargaining unit work, made proposals concerning wages and benefits, and proposed that all striking employees be returned to their jobs. There were some questions about the complainant's proposals. Mr. Seguin testified that he explained that the proposal on the recall of striking employees meant that all employees, both striking and non-striking employees would be placed on an equal footing, and then the employer would fill the positions in accordance with the collective agreement. While Mr. Seguin suggested that this could have resulted in some striking employees remaining on lay-off while employees hired since the strike began might con­tinue working, we are satisfied that as of December 11, 1984, the complainant's position with respect to the recall of the striking employees, as understood by the respondent, was that no strike replacement employees could remain at work while any employees who had engaged in the strike were on lay-off.

38. The respondent retired to consider the union's proposal. Mr. Shaw and Mr. Heather formulated a response to be presented to the complainant that evening. Mr. Shaw testified that he had some concern about picket line misconduct and wanted to take disciplinary action. He had res­ervations about agreeing to a "no reprisals" provision. Mr. Heather pointed out to Mr. Shaw that raising reprisals as an issue would not be conducive to a settlement. Mr. Shaw agreed with Mr. Heather not to press the matter further.

39. The respondent's counter-proposal made that evening orally, and then reduced to writ­ing, maintained the same benefit and wage levels that had been offered in July 1984, with certain modifications, maintained the respondent's position with respect to contract language, agreed to no reprisals, and had the striking employees placed on lay-off, to be recalled as vacancies occur. There was some discussion between the parties about the respondent's proposals, which resulted in changing the respondent's recall proposal from recall based on job classification seniority to a recall based on seniority. During that discussion, Mr. Seguin asked Mr. Heather if the respon­dent's proposal might mean that some striking employees might never return to work. Mr. Heather replied affirmatively.

40. The respondent's proposal with respect to the recall of striking employees that was left with the complainant the evening of December 11th stated:

"8. Recall to work shall be by seniority as vacancies occur.

• Company will advise UIC re termination of strike (i.e. employees not recalled for above shall be considered as on 'lay-off with full right of recall.

• thereafter employees will be recalled as required in accordance with the collective agreement.

• employees shall not loose [sic] seniority (i.e. have it reduced) by the term of the strike."

41. The complainant, after receiving the respondent's proposal orally and then in writing, wanted the evening to consider it. The complainant wanted to meet with the respondent the next morning. While Mr. Shaw was not available to meet, and Mr. Heather had another meeting to attend later that morning, Mr. Heather did agree to meet with the complainant to receive its pro­posal.

42. During the evening the complainant prepared a counter-proposal by which it agreed to all of the items in the respondent's proposal except the one relating to the recall of the striking employees. Its written proposal relating to recall stated:

"The one remaining item on the above referred to employer proposal - item listed as no. 8 is not agreed to, except as indicated below.

In lieu of the Company proposal no. 8, the union proposes the following as a settlement:

1. Within two (2) days of union bargaining unit ratification of this agreement the company shall return to employment all bargaining unit employees who were employees on April 21, 1983: and

2. Upon the return to employment referred to in (1) above any reduction in employee requirements shall be instituted in accordance with the provisions

of the collective agreement; and

3. The parties agree that employees hired on or after April 22, 1983 will not be retained in employment until and/or unless all bargaining unit employ­ees referred to in (1) above are actively employed; and

4. The union agrees with the last item on the company proposal of December 11/84 referred to above which reads 'Employees shall not lose seniority (i.e. have it reduced) by the term of the strike."'

That proposal was given to Mr. Heather the morning of December 12, 1984. During the discus­sions with Mr. Heather, Mr. Seguin explained that he wanted all employees, both striking and strike replacement employees returned to work "on paper", with the respondent reducing the work force in accordance with the terms of the collective agreement. We observe here that Mr. Seguin's explanation differs from the complainant's written proposal. However, we are satisfied that the respondent, through Mr. Heather, was advised of the complainant's position with respect to the recall of striking employees. Mr. Seguin testified that Mr. Heather, during the discussions that morning, made certain comments about the respondent and its unwillingness to agree to the proposal. Mr. Heather denied making the comments attributed to him by Mr. Seguin. We do not need to determine whether Mr. Seguin's recollection, assisted by contemporaneous notes he made of the meeting or Mr. Heather's recollection on this point is to be preferred. It is clear, regardless of which version of the meeting we accept, that the respondent was not prepared to accept the complainant's counter-proposal as explained by Mr. Seguin with respect to the recall of the striking employees.

43. Before Mr. Shaw left Mr. Heather the previous evening, the respondent's position on the recall of striking employees was made very clear to Mr. Heather. The respondent wanted to retain in active employment the employees who had worked for it during the strike. That was con­firmed with Mr. Shaw's parents, the principals of the respondent, on the evening of December 11th and was subsequently reconfirmed on December 13th. Furthermore, Mr. Shaw did not instruct Mr. Heather to engage in negotiations on the morning of December 12th, but to simply receive the complainant's proposal.

44. Mr. Heather indicated to Mr. Seguin that he would pass along the complainant's pro­posal to the respondent's principals. Mr. Seguin advised Mr. Heather that since he was going to be driving home to Sudbury that evening, he could drop off a copy of the union's proposal at the res­pondent's offices in Parry Sound. Mr. Seguin did that. The complainant heard no response from the respondent until it was advised by Mr. Heather, by telephone and by letter in early January 1985, that the complainant's counter-proposal was unacceptable.

45. Mr. Heather's letter stated:

"Your counterproposal respecting the return to work provisions as discussed at our December 11/12th meeting at the Ministry of Labour is unacceptable.

Further, be advised that the monetary proposal of the Company as outlined at the same meeting is withdrawn."

46. The only issue that prevented a settlement of a very lengthy strike was a return to work protocol. Yet, the complainant did not ask the respondent during the bargaining for the justifica­tion for its position only to recall the employees who had engaged in the strike in order of seniority as vacancies arose, nor did the respondent provide the complainant during bargaining with the jus­tification for that position. Although Mr. Heather testified that he explained that the complain­ant's proposal was not acceptable on the grounds that it was not economically viable, the basis for that assertion was not explored. Indeed, Mr. Heather testified that he was unfamiliar with the company's production and Mr. Shaw, who advised Mr. Heather that the union's position was not economically viable testified in cross-examination that he was not involved in production either. Thus, it is unlikely that either of the respondent's representatives at the bargaining table would have been in a position immediately to review the economic viability of the return to work propos­al.

47. During the course of the hearing in this matter, evidence was presented by the respon­dent suggesting that a sudden change in employees would be disruptive and that the employees hired as strike replacements were quite productive. While the respondent indicated that its proce­dures and processes had changed, we are not persuaded that the respondent put its mind to assess­ing the productivity of the striking employees in relation to the employees hired as strike replace­ments. Also, the respondent suggested at the hearing of this matter that the union s paper recall" idea would lead to numerous grievances and arbitrations over the interpretation and application of the lay-off and recall provisions of the collective agreement.

48. Counsel for the complainant put the suggestion of a gradual recall to the witnesses for the respondent as a way of alleviating the respondent's concern about a sudden change of employ­ees. While that might have made the complainant's proposals less unattractive to the respondent, that suggestion was also not made to the respondent during bargaining. Had the complainant asked for justification of the respondent's position, the sensible suggestions made to alleviate the con­cerns that the witnesses for the respondent expressed about the complainant's return to work pro­posals might have been explored. They were not however, and the opportunity for such an exchange was eliminated by Mr. Shaw's absence on December 12th, and his position with respect to the return to work proposal expressed to Mr. Heather on the 11th and confirmed internally by the respondent on the 13th.

49. Mr. Heather explained the withdrawal of the respondent's monetary offer. He had the authority to withdraw the offer that had been tabled and did so expressly out of concern that at some future point, when conditions might be different, the complainant would purport to accept the offer and claim that there was now a collective agreement. He was aware of the complaint pending before the Board involving Radio Shack where that was the issue.

50. When the parties met on December 11th, the respondent understood that the meeting would occur only on that day. The letter from the complainant indicating that it was prepared to bargain non-stop was received by the respondent on December 10th. The respondent did not advise the complainant that it would not be present to continue negotiations the next day until the end of the day on December 11th, when Mr. Heather agreed that he would meet the complainant to receive its proposal on the morning of December 12th. Mr. Shaw was not able to be present on December 12th because he had arranged to pick up an item in Kitchener that morning. Mr. Shaw agreed in cross-examination that other employees of the respondent were often used to do the kind of errand that Mr. Shaw was doing that morning. When asked by counsel for the complainant what effort was made to have someone else do that errand in place of him, Mr. Shaw said he had made none since there was no need to make any alternative arrangements.

51. Mr. Heather also testified in cross-examination that the respondent's position with respect to the recall of the striking employees was explained to the complainant. He said that he was under instructions from the respondent that the respondent wanted to retain the employees who had worked during the strike. Mr. Heather testified that Mr. Shaw gave him those instructions on December 11th. With those instructions made clear to Mr. Heather, it is apparent why Mr. Shaw saw no need to make other arrangements for picking up the item in Kitchener in order to be available for the continuation of the meeting on December 12th.

52. The central focus of the bargaining between the parties at the end of the day on Decem­ber 11th and on the morning of December 12th was how the striking employees could be returned to work. The complainant had agreed to all of the company's proposals except for a return to work protocol. Counsel for the complainant submitted that the respondent violated sections 15, 64 and 66 of the Act by maintaining its position with respect to the recall of employees. Furthermore, he also submitted that the respondent's subsequent withdrawal of the monetary offer on December 31st also violated section 15.

VIII

53. Section 15 of the Labour Relations Act requires the parties to collective bargaining to bargain in good faith and make every reasonable effort to reach a collective agreement. The Board is principally concerned with the process of collective bargaining, not the content, except where the content of bargaining patently demonstrates a desire to avoid a collective agreement. (See Radio Shack, [1979] OLRB Rep. Dec. 1220; The Daily Times, (1978] OLRB Rep. July 604; T. Eaton Co. Ltd., [1985] OLRB Rep. March 491.) This view was expressed recently in Radio Shack, [1985] OLRB Rep. Dec. 1789 at 1798:

"The fact that the company's proposals may not have been acceptable to the union, does not mean that the company was not prepared to enter into a collective agreement - albeit on its own terms; nor is it really very helpful to suggest that the proposals were 'predictably unacceptable'. That characterization is equally applicable to the union's proposals, and if that were the test for a breach of section 15 of the Act, then the legality of a party's bargaining stance would turn on the willingness of the other side to accept it. It may be that a union's failure to achieve its stated goals will diminish its stature in the eyes of its members and make it less attractive to prospec­tive members. But this does not mean that employer resistance is illegal. The union may simply have over-estimated its ability to wring concessions from an unwilling employer and misjudged the effectiveness of its strike weapon.

This is not to say that the Board is totally unconcerned with the content of the parties proposals or that there are no limits whatsoever on the scope of bargaining. In some circumstances, the Board may well have to assess the content of the items tabled in order to determine whether an employer does not really intend to enter into any collective agreement or whether it is really refusing to recognize the union as the exclusive bargaining agent (see Radio Shack, [19791 Oi RB Rep. Dec. 1220; Fotomat Canada Limited, 11980] OLRB Rep. Oct. 1397; Irwin Toy Limited, [1983] OLRB Rep. July 1064 and, particularly, Wilson Automotive (Belleville) Limited, [1980] OLRB Rep. July 1136.) Bargaining proposals may provide evidence of such unlawful motive, and the Board may also review the content of those proposals to assess whether any of the proposed items is 'illegal'.... However, in general, the Board's role under section 15 of the Act is one of monitoring the process of bargaining, and not the content of the proposals advanced."

54. In examining the conduct of the parties, the Board does not set its own standard of what a fair or just settlement will be and then measure a party's conduct against that standard. Such an approach is inappropriate simply because collective bargaining involves the exercise of power by a party acting out of self-interest. See Canada Trustco Mortgage Company [19841 OLRB Rep. Oct. 1356 at 1364; Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397 at 1421; Goldcraft Printers Ltd., [1980] OLRB Rep. Apr. 448 at 445-57; Cross Tube Products, [1980] OLRB Rep. May 669. In Pine Ridge District Health Unit, [1977] OLRB Rep. Feb. 65 the Board said in that vein:

"It should be stressed, however, that section 14 [now 15] of the Labour Relations Act is not intended to redress any imbalance of bargaining power that may exist between the parties. A party whose bargaining strength allows it to force the acceptance of hard terms at the bargaining table does not thereby bargain in bad faith. The very word 'bargain' presupposes that the parties will seek to maximize their own best interests. Hard bargaining, albeit ruthless, is not bad faith bargaining."

55. The Board must also be mindful of a party's temptation to use the Board and its processes as a substitute for bargaining power in trying to achieve its collective bargaining goals. The Board in Fotomat Canada Limited, supra at 1421 stated that its role is not to redress an imba­lance of bargaining power, but to ensure that the process of collective bargaining is carried out in accordance with the Act:

"Where a trade union impugns an employer's position on one particular position or on its tough overall posture at the bargaining table and this alone, the Board has to be careful to avoid being used by that trade union to supplement its bargaining power as we must be cautious to ensure that the hard bargaining does not have as its purpose, the destruction of the trade union. While it may be that a bargaining agent has its 'heart set' on a particular provision as a matter of prin­ciple, it must still have the bargaining power to achieve this end. Moreover, tactical errors can have a dramatic affect on a party's bargaining power or lack thereof and, in the words of a rele­vant fairy tale, this Board cannot be expected 'to put all of the pieces back together again.' See Ottawa Journal, [19771 OLRB Rep. June 309 at para. 59. Complainants must realize that sec­tion 14 [now 151 allegations will be considered in the light of the conduct of both parties and the remedies requested must bear a direct relationship to the breach established as a matter of cau­sation. The Board must be particularly sensitive to the reality of collective bargaining in pro­longed strike bound negotiations where inter-personal conflict can become quite embittered and where the temptation to turn to the labour board to supplement a party's bargaining power may be great. See, Ottawa Journal, supra. It has long been recognized that the content of the bar­gaining duty may change as a bargaining impasse continues. Strikes can be lost as well as one. See New Method Laundry and Dry Cleaners, (1957) 57 CLLC 18,059."

56. Unless we find that the respondent's position with respect to the return to work of the striking employees contravened the Act, discussed infra, the complainant has failed to establish a violation of section 15 of the Act. The Labour Relations Act does not grant to employees who engage in a legal strike the absolute right to return to work at the conclusion of a strike. Therefore, merely because the respondent sought to have striking employees return as vacancies arose does not, in and of itself, establish a violation of section 15.

57. In Mini Skools Ltd., [1983] OLRB Rep. Sept. 1514; application for judicial review dis­missed, June 24, 1985, unreported; application for leave to appeal dismissed, December 3, 1985, unreported, the Board reviewed in detail the situation of striking employees under the law of Ontario at 11-14:

"11. While not directly on point, an early but leading American case merits review at the very outset of our analysis. In National Labor Relations Board v. Mackay Radio Company & Tele­graph Company, 2 LRRM 610 (USSC 1938), the National Labor Relations Board and the United States Supreme Court were confronted with a number of questions centering on the sta­tus of striking employees and their right to return to work following the cessation of a strike dur­ing which the employer had continued to operate through the employment of strike replace­ments, The Court noted that section 2(3) of the National Labour Relations Act specifically provided that an employee included 'any individual whose work has ceased as a consequence of, or in connection with, any current labour dispute or because of any unfair labour practice, and who has not obtained any other regular and substantially equivalent employment, ... (at page 614).' Thus strikers, the Court held, remained employees for the purposes of the Act and were protected against the unfair labour practices denounced by it. The Court, however, also noted it did not follow that an employer, guilty of no act denounced by the statute, had lost the right to protect and continue his business by supplying places left vacant by strikers. The Court further noted that he was not bound to discharge those hired to fill the places of strikers, upon the elec­tion of the latter to resume their employment, in order to create places for them. In that case the Court held that an assurance by the respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labour prac­tice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled. In fact, however, the respondent employer's conduct was censured by the Board and the Court because it was found that the respondent refused to reinstate certain striking employees for the reason that they had been active in the union. Nevertheless, the general principles articu­lated by the Court have been followed by the NLRB and the American courts from that time forward. Indeed, at least one justice of the Supreme Court of Canada, Mr. Justice Locke, in Canadian Pacific Railway Co. v. Zambri (1962), 62 CLLC ¶15,407 at p. 451, indicated his views that the collective bargaining scheme envisaged by Mackay Radio was the law in Canada as well. In this respect he wrote:

'While unnecessary for the disposition of this appeal, I wish to express my dissent from the opinion that has been stated that if a strike is never concluded by settlement the relationship declared by ss. (2) of s. I continues until the employee has either gone back to work, taken employment with other employers, died or become unem­ployable. When employers have endeavoured to come to an agreement with their employees and followed the procedure specified by the Labour Relations Act, they are at complete liberty if a strike then takes place to engage others to fill the places of the strikers. At the termination of the strike, employers are not obliged to continue to employ their former employees if they have no work for them to do, due to their posi­tions being filled. I can find no support anywhere for the view that the effect of the subsection is to continue the relationship of employer and employee indefinitely, unless it is terminated in one of the matters suggested.

Subsection (2) of s. 1 appeared first in Ontario legislation in c. 33 of the Statutes in 1950. Legislation of this nature appeared at an earlier date in the Strikes and Lock­outs Prevention Act of Manitoba, being c. 40 of the Statutes of 1937, and in the Wartime Labour Regulations prescribed by the Governor General in Council on Feb­ruary 17, 1944, which were adopted in Manitoba by c. 48 of the Statutes of 1944. Sim­ilar legislation was enacted thereafter in the Industrial and Conciliation Arbitration Act of British Columbia and the Alberta Labour Act.

The idea of creating this artificial relationship appears to have originated in the National Labour Relations Act of the United States, commonly referred to as the Wag­ner Act, passed on Congress on July 5, 1935, section 2 of which declared that the term 'employee' shall include any individual whose work had ceased as a result of a current labour dispute and who has not obtained any other regular and substantially equiva­lent employment.

I do not construe the decision in Jeffrey-DeWitt insulator Company v. National Labour Relations Board, (1937) 91 Fed. (2nd) 134, and National Labour Relations Board v. Mackay Radio and Telegraph Company, (1938) 304 U.S. 333, as deciding that in the United States the relationship continues indefinitely unless that relation­ship has been abandoned, as has been said.

In the first of these cases, the employer had refused to bargain with the union, which represented its employees on the ground that by striking they had ceased to be such and Parker, J., held that this was an unfair labour practice since the strike did not in itself terminate the relationship either at common law or under the Wagner Act.

In the second case decided in the Supreme Court, the employer, following the settle­ment of the strike, had refused to employ five men on account of union activities dur­ing the strike, and the finding that this was an unfair labour practice was upheld, reversing the judgment of the Circuit Court of Appeals. Roberts, J., who delivered the judgment of the court, said, inter alia, that it did not follow that an employer guilty of no act forbidden by the statute had lost the right to protect and continue his business by supplying places left vacant by the strikers and was not bound to dis­charge those he had thus hired upon the election of the strikers to resume their employment in order to create places for them. That is the law in Canada also, in my opinion.

I would dismiss this appeal with costs.'

While we are not bound by either 'the Mackay doctrine' or Mr. Justice Locke's obiter in Canadian Pacific Railway Co. v. Zambri, they are significant views of the nature of the employ­ment relationship in the context of the economic contest between employers and employees cre­ated by collective bargaining. From this perspective, an employer's right to continue his business is not encroached upon by collective bargaining laws and a normal incident of continuing to operate is the act of hiring. On the other hand, these same labour laws have made clear that this act of hiring does not terminate the employment relationship of striking employees although without clear statutory language to the contrary, there is no legal entitlement to one's former position if it has been filled. This is the way the Mackay Court saw the system operating.

12. On the other hand, and as Professor Paul Weiler has observed, this line drawn between unlawful discharge and lawful permanent replacement is seen by many as a legal distinction without a factual difference. See Weiler, Reconcilable Differences (1980) at page 76. Why should employees, it can be asked, need to risk loss of their jobs to engage in the collective bar­gaining process? Moreover, the threat of permanent replacement can incite ugly violence as long service and older workers witness replacements going to work each day across the picket lines to perform 'their work'. It was these concerns that eventually lead to passage in Ontario of section 73 of the Labour Relations Act. This section guards against the permanent loss of an individual's job where he has struck and his employer has continued to operate through the employment of strike replacements. Employees engaging in collective bargaining are assured that the decision to participate in a strike need not inevitably put one's job at risk. But while the Mackay doctrine was seen as too discouraging of collective bargaining, the balancing considera­tions for this greater job security for striking employees in Ontario provided that the statutory resumption of employment would be on such terms as the employer and employee might agree and the right would apply for only six months from the commencement of the strike. In fashion­ing a policy initiative in this area, the Legislature recognized it was potentially affecting bargain­ing power and attempted to balance or minimize the impact of its intervention on the collective bargaining process and on the then existing strengths of labour and management.

13. In The Becker Milk Company Limited and Ind-Ex Distributors Limited, [19771 OLRB Rep. Dec. 797, [1978] 1 Can. LRBR 175, this Board reviewed the impact of section 73 against the principles that existed prior to its enactment in the following terms (at pages 179-180 of the Can. LRBR report):

'Ordinarily when a strike is successful the striking employees return securely to their jobs as a result of the negotiated settlement. But not all strikes are won. When a strike had ended and has ended in failure, what are the legal rights of the unsuccessful strikers with respect to their jobs, particularly when those jobs have been filled by replacements hired during the strike?

It is an accepted principle of industrial relations law in Ontario that a struck employer has the right to protect and continue his business. He may try to do that in a number of ways. He may seek to contract-out the work of the struck bargaining unit. He may rearrange the work of non-striking employees, insofar as their employment contract allows. He may press management staff into work on the shop floor on a fill-in basis. Or he may hire replacements. Thus when a strike has ended in failure and his union has been unable to negotiate a return-to-work clause, the unsuccessful striker may find that his job is held by a replacement. Does that fact change his status as an employee under The Labour Relations Act?

It was apparently once thought in both Canada and the U.S. that while a strike itself would not terminate an employee's status (because of the protection of section 1(2) of the Labour Relations Act and the similar provision in section 2(3) of the National Labour Relations Act) the separate act of hiring a replacement by the employer dur­ing the strike did have the effect of ending the employment status of the striker who was replaced. (See Royal Commission Inquiry Into Labour Disputes, the Hon. L.C. Rand, Aug., 1968 at p. 24; Bartlett-Collins Co. 110 N.L.R.B. 395 (1954); Atlas Stor­age Division v. N.L.R.B. 112 N.L.R.B. 1175 (1955), enforced sub. nom. Chauffeurs Teamsters & Helpers Local No. 200 v. N.L.R.B. 233 F. 2d 233 (7th Cir. 1956); Brown and Root Inc., 132 N.L.R.B. 486 (1961), enforced, 311 F. 2d 447 (8th Cir. 1963).

That limited interpretation of section 1(2) was criticized by the Rand Royal Commis­sion as being an unjustified disregard of the rights and benefits of employees accumu­lated over years of service. According to the Commission that view ignored the funda­mental purpose of the section by placing the economic life of the employee at the arbitrary will of the employer. To maintain that the act of hiring replacements would extinguish all of the vested rights and the very employment status of strikers would, in the words of the Report, 'reduce the validity of a strike to mockery'.

Whatever uncertainty there may have been in this province with regard to that issue was resolved one year after the tabling of the Rand Report. In its decision in McLeod, supra at p. 1104) the Board expressly rejected the contention that the hiring of a replacement terminated the employment status of a striking employee that is pro­tected by section 1(2). Similarly, in the United States the National Labour Relations Board and the courts have corrected the course of earlier decisions and have inter­preted section 2(3) of the National Labour Relations Act as preserving the status of strikers as employees notwithstanding the hiring of replacements by the employer during the strike. (N.L.R.B. v. Fleetwood Trailer Co. 389 U.S. 375 (1967), enforcing 153 N.L.R.B. 425 (1965); Laidlaw Corp. v. N.L.R.B. 414 F. 2d (7th Cir. 1969) and see generally Martin, 'The Rights of Economic Strikers to Reinstatement: A Search for Certainty' (1970) Wisc. L. Rev.

But what is the extent of an employee's right under section 1(2)? More particularly, does the employee who returns to work after a strike have a right to 'bump' a replace­ment and assume his old job? In Ontario that will depend on whether he returns under the protection of section 64 [now 73] of the Act.

Under The Labour Relations Act strikers continue to be employees and they are not to be discriminated against for having exercised their right to strike.

[emphasis added]

When a strike that lasts beyond six months ends in failure there may be existing job vacancies that subsequently arise by the departure of replacements or the creation of new jobs. The qualifications of the former strikers to fill those jobs may in many cases be inferred from their original hiring and past employment. An employer who refused to give those jobs to returning employees qualified to fill them commits an unfair labour practice to the extent that the refusal amounts to a calculated penalizing of a group of employees for having exercised their lawful right to strike. (cf. Fleetwood Trailer Co.; Laidlaw Corp. (supra)). The refusal of an employer to put employees back to work in those circumstances is no less a breach of the Act then any attempt to discharge them outright for engaging in the right to strike (cf. Webster v. Horsfall 69 CLLC ¶16,050). But, subject to whatever better rights their union can obtain for them, that appears to be the limit of the protection that strikers in that circumstance can expect. An integral feature of the balance of power in collective bargaining is that strikers who return to work without the protection of section 64 [now 73] of the Act cannot, as a legal right, displace replacements who were hired in their stead.'

[emphasis added]

14. This statement of principle was applied in Fotomat Canada Limited and United Steelworkers of America [1980] OLRB Rep. Oct. 1397, [1981] 1 Can. LRBR 381 at pages 409-410, although an exception was developed in that case to deal with the situation where a strike had been taken beyond the six month period by the commission of independent unfair labour practices by the employer. In this report the Board stated:

As a strike endures, the commitment of an employer to the employees who have helped it resist the strike may become great and, in the usual case, it is for the negoti­ation process to reconcile this commitment with the interest of striking employees to return immediately to their jobs. Where the trade union is unable to negotiate their immediate return because of the employer's commitment to replacement employees, striking employees who make an unconditional application to return have to be treat­ed, essentially, as employees on layoff and must be considered in filling subsequent vacancies. The rationale of this conclusion is found in the Becker Milk case quoted above and in Fleetwood Trailer Co. (1967), 66 LRRM 2737. Thus, while the letter of June 27, 1980 may convey the respondent's intention not to recall striking employees immediately to the detriment of strike replacement employees, this is not in itself improper. There is no indication in the letter that striking employees would, on their unconditional application, be refused access to subsequent vacancies.

We are therefore left with the complainant's second argument -- that to fail to rein­state the striking employees would simply reward the respondent having brought the complainant 'to its knees' by unlawful means. This raises the appropriateness of such a remedy in the circumstances and the related question of whether it is necessary to effectuate the policies of the Act.

In many cases coming before the National Labour Relations Board, such as Laidlaw Corp. (1968), 68 LRRM 1252, affirmed (1969), 71 LRRM 3054 (CA-7), cert. denied (1970), 73 LRRM 2537 (U.S.C.C.), it has been plain that the employer's unfair labour practices caused the employees to initiate or prolong a strike and in such cases the Board has quite uniformly ordered the employer to reinstate the striking employ­ees to their former positions, discharging if necessary replacements hired during the strike. That Board has, therefore, treated the unfair labour practice striker somewhat more favourably than the economic striker in the sense that the latter employee has no immediate right to reinstatement without a settlement to this effect. See NLRB v. MacKay Radio and Telegraph Co., (1938), 304 U.S. 333, 58 S.Ct. 904. This distinc­tion can become very significant where a strike is initiated over bargaining demands but, during the course of the strike, the employer commits unfair labour practices. The employer's unfair labour practices will be held to 'convert' the strike if it can be determined that the employer's actions prolonged the strike beyond the date it would have been terminated as only an economic strike. For example, in the Laidlaw Corp. case, supra, the Board applied the 'conversion' doctrine and found that what had begun as an economic strike was converted into an unfair labour practice strike when it was prolonged by the union's vote to protest the employer's outright termination of strikers seeking reinstatement. The Board applied its usual rule that the strikers who were permanently replaced during the economic phase of the strike were not entitled to immediate reinstatement, while the strikers replaced after the date of conversion were.

We do not think that the OLRB needs to adopt all the American trappings of an unfair labour practice strike, but the concept's underlying purpose has considerable relevance to the exercise of this Board's jurisdiction under section 79 [now 891. Where, for example, employees go on strike and it is subsequently determined that the employer has committed certain basic and flagrant unfair labour practices, their security of employment may become a remedial issue. This may, particularly, be the case where the period under section 64 [now 73] has lapsed and the only opportunity for immediate reinstatement without a remedial order from the Board is through a negotiated settlement to that effect. If the trade union's capacity to negotiate that result has been put into question or eroded by the employer's unlawful resistance, the failure of the Board to provide for the return to work of striking employees would have the result of rewarding the employer for his unlawful actions. On the other hand, as a strike endures strike replacement employees who have been permanently hired develop an interest in their job which this Board cannot ignore. Their interests should be considered in light of the time and gravity of the employer's unfair labour practice together with any expectations they might have as a result of employer com­mitments."

58. Therefore, in the absence of any illegal motive, we believe that the respondent's posi­tion at the bargaining table with respect to the return of striking employees, while harsh, was not contrary to section 15.

59. Similarly, the respondent's withdrawal of its monetary offer was not, in our opinion, designed to frustrate bargaining. We are satisfied that the respondent wanted to be in a position to bargain with the complainant if or when the complainant wanted to return to the bargaining table. Mr. Heather's explanation for the withdrawal of the offer on December 31st was credible and is also consistent with the principles discussed by the Board Toronto Jewellery Manufacturing Association, [1979] OLRB Rep. July 719; Fotomat Canada Limited, supra; Pine Ridge Health Unit, supra and Radio Shack, [19851 OLRB Rep. June 901.

IX

60. The complainant also contends that the respondent's position with respect to the return of striking employees violated section 64 and 66 of the Act. As indicated at the outset of this deci­sion, the burden of proof lies on the respondent to persuade us that its position with respect to the return to work of employees who engaged in the strike did not contravene section 64 or 66 in rela­tion to the striking employees' "employment, opportunity for employment or conditions of employment."

61. The evidence relevant to this issue was not in dispute in any material way. The respon­dent hired employees after the strike began on a temporary basis. David MacCallum, an employee who was hired after the strike began, testified that he was advised when he was hired that he had a job as long as the strike continued. Indeed, it was the temporary nature of that job that caused Mr. MacCallum to leave his employment with the respondent when other permanent work became available. He returned to work for the respondent when his new employer began to have financial difficulties. Notwithstanding the understanding that the respondent had with the employees hired as strike replacements, Mr. Shaw and Mr. Heather's evidence is quite clear that the respondent wished to retain the employees who had worked for it during the strike. Indeed, Mr. Shaw sug­gested the respondent had a moral obligation to those employees.

62. While the complainant did not specifically put a return to work proposal to the respon­dent in bargaining on December 11, 1984, the respondent's return to work offer was discussed. We are satisfied that the complainant's concerns about its members not being able to return to work were made clear to the respondent. The respondent did not alleviate those concerns. Mr. Heather indicated that the possibility that the striking employees may not ever return to work did exist, but also that he could not say with certainty what the respondent's future plans might be. However, underlying those discussions was the firm position of the respondent that employees hired during the strike were to remain at work.

63. The complainant's written proposal of December 12th presented to Mr. Heather was not, on its face, the same as Mr. Seguin's explanation of having all employees treated equally for purposes of recall. Nevertheless, Mr. Seguin's oral proposal was explained to Mr. Heather on December 12, 1984. That proposal was more than the respondent was prepared to agree to, as both Mr. Shaw and Mr. Heather testified. The respondent, through Mr. Heather, knew or ought to have known that the complainant, by the end of the meeting on December 12, 1984 was seeking to have both the striking employees and the employees hired after the strike began treated as one combined group for purposes of being assigned to available work. The respondent, however, was not prepared to accept that scheme as a return to work protocol, on the basis that it would adversely affect production and also, we divine from Mr. Shaw's evidence, because of Mr. Shaw's self-imposed moral obligation not to replace the employees who worked during the strike.

64. We are not persuaded that the employer's refusal to agree to a return to work protocol that might cause the displacement of some or all of the strike replacement employees was not con­trary to sections 66 and 64 of the Act. Both the employees hired as strike replacements and employees who engaged in the strike were employees of the respondent in the bargaining unit. See section 1(2) of the Act. In our opinion, the preference that the respondent exhibited towards main­taining the active employment of persons it had hired after the strike commenced and who worked during the strike, taken together with the respondent's adoption of a moral obligation to those employees can be reasonably viewed as discriminating against the striking employees by reason of their exercise of rights under the Labour Relations Act to engage in a legal strike. That is, employ­ees who engage in a legal strike are exercising a right under the Act. See Humber College, [1979] OLRB Rep. June 520 at 530. Put another way, the express preference to retain employees who were hired after the strike commenced distinguished between the two groups of employees on the basis that one group participated in a legal strike while the other group did not.

65. Section 66 of the Labour Relations Act states in part:

66.No employer

(a) shall ... discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under Act;

It seems to us that the difference between the respondent's treatment of the striking employees and the employees hired as strike replacements in regard to being actively at work is a difference based in large part upon the striking employees' exercise of rights under the Labour Relations Act. That basis for distinction between the two groups of employees of the respondent violates section 66 since the respondent is discriminating against the striking employees by reason of the fact they were participating in a lawful strike against it.

66. The Board, in Mini Skool, supra, in finding that the employer did not violate the Act by insisting that striking employees be recalled as vacancies occur, was not dealing with employees hired after the strike commenced but rather was dealing with employees who had engaged in the strike, but had returned to work. Of particular significance in that case was the claim that the strik­ing employees could replace more junior employees who had exercised their statutory right under section 73 of the Act to return to work. The Board there wrote:

"We have reviewed the labour relations debate surrounding the status of striking employees in relation to strike replacements in order to put the complainant's claims in perspective. Section 73 can be seen as an implicit statutory recognition of the Mackay approach in that the provision would have a very limited role if, as a matter of the general unfair labour practices sections, every striking employee had a statutory right to the return of his job at the conclusion of the strike. But what is important to understand is that the complainant is asserting the much more tenuous claim that striking employees have a statutory right to replace fellow employees with whom they were employed at the commencement of the strike and who exercised their statutory right to return to work pursuant to section 73. In fact, even if the complainant were asserting this claim within the six month period and on the basis of section 73, it is far from clear that senior striking employees could rely on the section to replace more junior employees working in a common classification they had all worked in prior to the strike's commencement particularly where the junior employees had returned to work first pursuant to the section. There was a tem­porary shortage of work due to the strike and the respondent allocated part of the available work to persons in his active employ. There is the expectation that as the enrollment returns to capacity all striking employees will be recalled. The interest of the grievors is therefore much less compelling than that of striking employees who have been permanently replaced by fresh hires "

We do note that the Board in that case went on to make the following statement:

"And yet the existence of section 73 is some evidence that this (permanent replacement) is the potential economic reality otherwise facing striking employees. Because of expiration of the six month period, the grievors could not replace or bump strike replacement employees hired after the strike commenced. Therefore, why should they have any greater statutory entitlement against employees with whom they worked prior to the commencement of the strike and who, returned to work pursuant to the statute?"

While it would appear that the Board there made a blanket statement that striking employees could not replace employees hired after the strike once the six month period set out in section 73 of the Act expired, it seems to us that that statement relates to a situation in which there was not an improper motive for the refusal to displace those employees hired after the commencement of the strike. Furthermore, the Board was satisfied in that case that the respondent did not have any dis­criminatory motive for its position. See the concurring opinion of Board Member W. F. Ruther­ford in Mini Skool, supra at page 1530, where he wrote: "... our Board would not permit employer discrimination against employees by reason of their participation in a strike,...". The respondent in this case has failed to satisfy us that it has not done so.

67. We are not persuaded the respondent's position was based entirely on concerns about productivity. Neither Mr. Shaw nor Mr. Heather could testify about the production requirements of the respondent and what kind of skills might be needed by employees to perform the available work. Furthermore, the respondent's offer to recall employees by seniority as vacancies arise did not take into account that a senior employee might not have the skills necessary to perform the vacant job. The respondent's concession to the complainant in bargaining on that point merely illustrates, in our opinion, that the respondent was not as concerned with maintaining productivity as with ensuring that employees hired after the strike commenced remained actively at work. More importantly, the respondent's self-imposed moral obligation to employees who were hired on the understanding that their employment would end when the strike was settled underlines the distinc­tion the respondent was making between the two categories of employees based upon their exer­cise of the right to strike under the Act.

68. The respondent has failed to persuade us that it did not act contrary to section 66 with respect to the terms and conditions of employment of the striking employees. Thus, we find that the respondent discriminated against the striking employees with respect to their terms and condi­tions of employment by reason of their exercise of rights under the Labour Relations Act, on and after December 13, 1984, the date that officials of the respondent met to confirm Mr. Shaw's posi­tion with respect to the recall of the striking employees. Furthermore, that discriminatory conduct, in our view, also violated section 64 of the Act by impairing the complainant's ability to represent employees.

69. Additionally, since we have determined that the respondent's position with respect to the recall of striking employees was contrary to section 66, that finding also establishes the respon­dent's improper motive for its bargaining position with respect to the recall of the striking employ­ees. Thus, we find that the respondent's position on that issue violates section 15 of the Act. Indeed, it is the antithesis of good faith to maintain a position in bargaining on the only issue that prevents the settlement of a strike that is contrary to section 66 of the Act.

X

70. Counsel for the intervening employees made submissions with respect to the appro­priate remedy, if we found that a violation of the Act had been made out. There was no challenge to counsel's standing to participate in these proceedings. Counsel submitted that the Board should also consider the interests and expectations of the employees hired as strike replacements in fash­ioning an appropriate remedial order.

71. The employees hired as strike replacements were hired temporarily, and it is clear from the evidence that their length of employment was a function of the length of the strike. As our remedial order below does not direct either the complainant or respondent to act in any particular way with respect to the employees hired as strike replacements, and any impact of our order on the employees hired as strike replacements is contingent upon the strike ending, those employees' job interests are not directly affected, and we need not consider them further since their temporary employment was only to continue until the conclusion of the strike.

XI

72. The parties are under a continuing obligation to bargain in good faith and make every reasonable effort to reach a collective agreement. Therefore, aside from the statutory obligation that exists, as a remedy for the breach of section 15, we direct the parties to meet within 21 days of the release of this decision. We further direct the respondent to provide the complainant with a complete proposal for a collective agreement at that meeting, with that proposal containing a return to work protocol that does not discriminate between the employees hired after the com­mencement of the strike and the striking employees. Not less than 5 days prior to that meeting, the complainant is to provide the respondent with the names and addresses of the respondent's employees that were on strike as of December 13, 1984 and indicate to the respondent which of those employees wishes to return to work.

73. We direct the respondent to compensate each of the striking employees for the loss of wages and benefits from December 13, 1984 to the earlier of either: a) the date they ceased being an employee of the respondent on strike or (b) the date the parties agree to a return to work proto­col.

74. Additionally, we direct the respondent to compensate the complainant for the losses, if any, caused by the respondent's violation of sections 15 and 64.

75. The amount of compensation awarded includes interest in accordance with the Board's normal practice and is subject, of course, to the usual principles of mitigation.

76. This panel of the Board shall remain seized with determining the amount of compensa­tion to be paid to the employees and the complainant if the parties cannot agree, and with any other issues arising out of the implementation of our remedial order.

DECISION OF BOARD MEMBER J. KENNEDY;

1. The Board in this case was faced with difficult legal and labour relations issues because the company and the union were not able to reach a collective agreement during a strike that had gone on for almost three years, as of the last day of hearing. That strike would have ended in December, 1984 or perhaps even earlier, if the striking employees had the clear right under the Labour Relations Act of Ontario to return to their jobs when a strike is concluded. Legislation sim­ilar to section 11.1 of the Manitoba Labour Relations Act, which guarantees striking employees the right to return to their jobs at the conclusion of a strike, is necessary in this province if the kind of conflict that arose in this case is to be avoided in the future. Unfortunately, that is not yet the law of this province, and as the Vice-Chairman of this panel of the Board points out in paragraph 56 of his reasons, employees who are the victims of legitimate economic warfare do not have any recourse in getting back to work.

2. I agree with the review of the evidence and the findings of fact set out in the Vice-Chairman's reasons. In my opinion, the evidence we received was clear. The company's employees who went on strike were not the victims of the company's legitimate exercise of economic power. Rather, the company chose to keep the striking employees out of work while continuing to employ strike breakers simply because the striking employees engaged in a legal strike. Mr. Shaw, on behalf of the company, referred to a "moral obligation" to the strike breakers. It was readily apparent to me that the moral obligation that the company so self-righteously spoke of was nothing more than an attempt to dress up an excuse for refusing to return the striking employees, all of whom had been with the company for many more years than the strike breakers, to active work. Whether it is called a moral obligation or teaching the striking employees a lesson, it is the same. The company chose to distinguish between its employees because the striking employees exercised their right under the Labour Relations Act and for that reason the company was not prepared to have the employees who had engaged in the strike displace the employees who it hired as strike breakers.

3. The evidence presented to us at the hearing, in my opinion, only pointed in this direc­tion. I do not see how there could even be any doubt as to what the company was trying to achieve. I do not think there was any need to resort to section 89(5) of the Labour Relations Act. Neverthe­less, I wish to state that I agree with the Vice-Chairman's analysis of section 15 of the Canadian Charter of Rights and Freedoms when he concludes that the kind of distinction that section 89(5) makes between employers and individuals who are not employers does not even suggest the kind of discrimination that section 15 of the Charter was addressed to.

4. While I agree with the conclusions reached, I do not believe that the company in this case even had the right to raise the objection to section 89(5) of the Labour Relations Act. Section 15 of the Charter protects individuals and not corporations. The employer is a corporation. Since this is not a criminal proceeding, I simply fail to understand how the Supreme Court of Canada's decision in Regina v. Big M Drug Mart Ltd. can be used to give a corporation the right to challenge the legality of a statute that does not infringe any of the rights the corporation has or has been given by the Charter.

DECISION OF BOARD MEMBER R.J. GALLIVAN;

1. 1 disagree with the majority on a number of its conclusions some of which, I respectfully submit, appear to have been reached without full and objective regard for the facts.

2. I do, however, agree with the majority's conclusion that an employer is entitled to claim that Section 89(5) of the Labour Relations Act is unconstitutional. I disagree with the conclusion that a discriminating distinction between employers and all others covered by the Act is not an ille­gal discrimination under the Canadian Charter of Rights and Freedoms. The view taken by the majority that employers as a class can be unjustly discriminated against with impunity under the Charter seems too narrow a perspective to accord with the Supreme Court's advice (quoted by the majority in paragraph 24 of its decision) of "the need for a broad perspective in approaching con­stitutional documents...".

3. Having chosen, apparently, to ignore that advice the majority then goes on to conclude that the evidence for and against the respondent in this case is so evenly balanced that resort must be had to the impugned Section 89(5) of the Act in order to support a finding against the employ­er. That section as interpreted by the majority in this case requires the employer to accept the bur­den of proving a negative - that it did not discriminate illegally against the strikers for exercising their right to strike. The reverse onus provision of the Act is triggered where the complainant has no evidence to offer in support of an allegation (other than that presumably an event occurred) or where the evidence in support of an allegation against an employer is to all intents and purposes equally balanced by the employer's defence. "Balance" means a state of equilibrium, or equality between each side. It thus implies evidence of equal weight on both sides of a proposition. Here, the only evidence to support the union's allegation is the company's back-to-work offer. There is no other evidence to support the charges. On the other side of the scale is the unequivocal and uncontraverted evidence of the employer that its back-to-work offer was motivated solely by its economic self interest - an employer offer regarded by both union and management practitioners in labour relations in this Province, by the courts, and by this Board up to now, as perfectly legal in the circumstances.

4. Among those circumstances in this case is a strike which started in April 1983 and which the union apparently had lost. The evidence is that the strike began when the company's business was still recovering from the 1982/83 economic recession in Canada. As a consequence of that busi­ness environment, some of the union's members in the respondent's bargaining unit were on layoff when the strike began. Nevertheless, the union struck as it had the legal right to do. Instead of shutting down its plant the company decided to continue to operate, as it had the legal right to do.

5. The act of striking, when stripped of all the rhetoric which usually accompanies discus­sion of the subject, comes down to a decision which each employee in the bargaining unit must make for him or herself. The decision essentially is this: am I prepared to continue working for my employer under the working conditions he is offering, or not. In considering his answer the employee must take account of a number of factors such as his own financial staying power and the peer pressure he will be under (sometimes, as here, expressed through picket line violence) if he decides against the majority view. He must also consider that if his answer is "no, I won't work under those conditions", someone else might be quite content to do so - either some of his fellow workers or others to whom the employer may offer his job. That, to the employee, is the essential risk of striking: the permanent loss of employment with that employer. In refusing to work the striker is gambling that the employer's working conditions are so unacceptable that no one else would tolerate them either. In refusing to improve those conditions the employer is gambling that his employees are wrong and that either they will change their minds later or that he will be able to attract others to work for him. If he judges wrongly, he risks losing his ability to supply his custom­ers and ultimately his business. That, to the employer, is the risk: the permanent loss of his business. Those judgements by, and risks to both parties represent the leverage, the economic sanction which drives the free collective bargaining system. The viability of the employer's final offer is put to the test in the marketplace.

6. In this case, the employees apparently miscalculated. The employer was able to attract others to his employ and to continue his operations. So the strike dragged on. In such circum­stances in Ontario, the Legislature has, through Section 73 of the Act, given employees the oppor­tunity gracefully to extricate themselves where they have miscalculated or been misled into overes­timating their economic leverage. In this case the employees chose not to take advantage of that section of the Act, hopefully only after having been properly advised by their union that the longer the employer continued to operate successfully with replacement employees the less likely it would be that they would ever find for themselves the economic leverage to force the employer to change his mind and to discharge the replacements in order to make room again for them. The longer the strike dragged on the worse the conditions became for the strikers.

7. Of course during the lengthy period of this strike, conditions affecting the employer changed as well. It is clear that at the outset of the strike the employer expected it to be relatively short - perhaps a matter of weeks or a few months at worst. This is evident from Mr. MacCallum's testimony that his employment by the company as a replacement employee was clearly understood by both parties to be "temporary". It is only natural that when the strike dragged on as long as this one did, the company's concern for and its view of its obligations towards its new employees would begin to change and eventually would take precedence over its concern for the strikers who in effect had said to the company that they did not wish to work for it on the company's terms any longer. They made that declaration by striking and they said it again six months later when they didn't take advantage of their rights under Section 73 of the Act to return to the company's employ. It is also quite natural with a new workforce unhampered by old work habits or collective agreement restrictions on productivity that the company's operating processes and procedures might change over such a lengthy period as this strike.

8. It is against that background that the evidence of Mr. Shaw must be weighed. His evi­dence is key because based on it the majority concludes (at paragraph 47) that the company did not "put its mind to assessing the productivity of the striking employees in relation to the employees hired as strike replacements". As I shall outline later, Mr. Shaw's evidence was exactly the oppo­site to that and, if weighed objectively, must lead to a conclusion opposite to that reached by the majority. The majority attempts to explain its dismissal of that evidence by holding that Mr. Shaw, although a son of the owners and a senior officer of the company, didn't know enough about the company's production processes to give credible evidence. That is tantamount to saying that an automobile company needn't honour its warranty if a faulty car was purchased from a salesman who wasn't a mechanic. According to the evidence, Mr. Shaw held the company's mandate to negotiate on its behalf and to commit the company to a binding collective agreement he judged suitable. Yet the majority chose to ignore or disbelieve his testimony despite the fact that there is not one bit of evidence to contradict what Mr. Shaw said. In assessing his credibility, it must be kept in mind that his company is small and that he is a senior manager in it responsible for a variety of business functions including marketing and labour relations. His evidence was that in both func­tions he had to be very conscious of labour costs. I quote an example from my notes which shows that he was asked in direct examination:

"Q. Why did you initially take the position (at the December 11th meeting) that you wouldn't retable your July 9th offer?

A. It was basically economics. In December we were negotiating three or four fairly large con­tracts. Negotiations were down to price as the determining factor against competition. We had to determine the bottom line on these business contracts in respect of price.

Q. These were contracts on sale of products?

A. Yes. In determining our bottom line price, we had to consider labour costs. Prices quoted were on existing labour costs and at the December meeting I was nervous that if we had settled the (labour) contract on our July offer and then been awarded those business contracts it could have been a fairly substantial change and a loss to the company financially. In December we hadn't been given those contracts so even though I was nervous about it, I decided to table the July 9th offer".

In the face of such and other similar evidence, I cannot accept the majority's characterization of Mr. Shaw as an unqualified witness for the respondent. Mr. Shaw need not have an intimate knowledge of the specific job skills required by the intricacies of his company's production processes to bargain a collective agreement on the company's behalf.

9. If the Charter of Rights and Freedoms does not apply to employers in a case such as this for the reasons advanced by the majority (that Section 15 of the Charter applies only to individual persons, which, as I have said, I don't accept) it must follow that Mr. Shaw's evidence was given as an employer not as an individual protected by the Charter against the discrimination inherent in Section 89(5) of the Labour Relations Act. It therefore is that employer evidence, not Mr. Shaw's personal evidence, which this Board must weigh in determining whether or not the reverse onus has been met. The logical consequence which must follow from that is that Mr. Shaw's personal characteristics are irrelevant. That being so, then the Board's decision (not to give weight to his evidence) can be reached by the majority only by concluding that the company itself was unquali­fied to give evidence of its own labour costs. Such a conclusion is manifestly absurd.

10. Whether one accepts that or not, Mr. Shaw's evidence was clear. His penultimate back-to-work proposal was that strikers return in order of job class seniority as vacancies arose. He explained that this meant that if the company required a welder it would recall the most senior welder from among the strikers. Since that would be the most economic method of filling vacan­cies, it is evident on the face of the offer that the company was considering the relative qualifica­tions of employment candidates when filling vacancies. The union objected to that approach and as a consequence the company changed its offer so as to recall to employment in such circumstances the most senior striker without regard to that person's ability to perform the work. In principle that was the method the union wanted through its "paper recall" proposal, except it also demanded that vacancies be created immediately through termination of replacement employees. Straight seniority as opposed to job class seniority was a potentially costly concession to the union yet the majority holds it against the company for having made it by concluding the employer "did not put his mind to assessing the productivity of the striking employees". One wonders whether the major­ity would have found otherwise if the employer had stubbornly held to its earlier position that only strikers immediately qualified to fill a vacancy would be recalled. Obviously not, and yet the majority concludes that in amending its offer to make it more palatable to the union the company did so without having put its mind to the effect that would have on its productivity. That is simply not a reasonable inference to draw from the evidence.

11. That the very opposite conclusion should be drawn can be illustrated by Mr. Shaw's tes­timony (and I again quote directly from my notes of his evidence in chief):

Q. What was your reaction to the union's December 12th return to work proposal?

A. Pretty much as it had been the day before. We wouldn't be able to accept it.

Q. Why not?

A. To understand that, you need to know a little about how production works at our plant. We're a custom manufacturing facility. Virtually every product, the vast majority of orders we get, are different from the previous ones. We're not an assembly line facility. Every product is a different one. Consequently, once you've learned one product it doesn't mean you know them all. Some skills are fairly unique even in a world market. We're the leading manufacturer in the world of our products, but we face a lot of competition. As a result, we're constantly introduc­ing new products, improving old products. It all adds up to the fact that virtually from month to month there can be significant changes in our products and manufacturing techniques. Because some of our equipment is for repairing mining equipment, most times delivery is very critical. So we have tight delivery, changing products, and since the strike had been on for twenty months at this point, procedures in the plant had changed drastically since the strike started. To have tried to totally replace our work force in a very short period of time would have been a disaster from a production and subsequently economic point of view. So we couldn't agree to the union's posi­tion which meant a complete turnaround of workers. But rather (we offered) a gradual integra­tion of striking employees into the plant."

[emphasis added]

Mr. Shaw repeated the essentials of that testimony under cross-examination: that from an eco­nomic point of view the complete replacement in a short period of time of their whole workforce for the second time in two years just wasn't economically viable.

12. It is clear from that testimony that the plant's productivity, efficiency and economic via­bility was very much on the company's mind. Thus it cannot be said that the company failed to put its mind to the productivity of the strikers compared to those working. I believe the majority seri­ously errs in ignoring that clear evidence and in concluding (at paragraph 64) that "the express preference to retain employees who were hired after the strike commenced distinguished between the two groups of employees on the basis that one group participated in a legal strike while the other group did not" was made in a discriminatory manner contrary to Section 66 of the Act. There simply is no evidence of that nor is it a reasonable inference to draw from the facts before us. Rather, the evidence is that the company preferred to retain its current workforce because its previous one would require costly retraining. The company did distinguish between the two groups but not for the motive alleged. It concluded that the replacement employees were now more quali­fied to do the changed type of work being done in the plant than the strikers. It was willing to take the latter back and to retrain them, but as vacancies arose, not all at once for the reasons outlined in Mr. Shaw's testimony.

13. The statement by the majority at paragraph 67 is also directly contrary to the evidence. The majority says: "the respondent's offer to recall employees by seniority as vacancies arise did not take into account that a senior employee might not have the skills necessary to perform the vacant job". That is precisely why the company's penultimate offer was to recall by job class seniority so that those recalled first would be the ones with the skills necessary to do the vacant jobs. When the union objected to that, the company agreed to amend its offer so as to recall by straight seniority instead. Unfortunately, it seems that no matter which position the company took the majority would find against it.

14. Mr. Shaw's evidence was so clear and uncontradicted that I find it unnecessary to have recourse to the reverse onus provision in Section 89(5) of the Act. On the balance of probabilities it seems clear that the company was motivated by business considerations for adopting the back-to-work protocol it offered to the union, and that it was not motivated by a desire to discriminate improperly against the strikers. Even under the more stringent test of Section 89(5), I conclude the company has met the onus placed upon it. The conclusion of wrong-doing is simply not a reason­able inference to draw from the facts.

15. I agree with the majority's preliminary finding that the company's bargaining was in good faith and therefore that no violation of Section 15 of the Act occurred. The evidence is quite clear that the company was prepared to sign a collective agreement. It dropped potentially conten­tious positions on reprisals against certain strikers for damage done to its premises during the strike and other picket line incidents, it dropped its insistence on return to work by job class seniority and agreed to straight seniority instead. A collective agreement could have been signed on December I lth/l2th but for the union's uncompromising position that all strikers had first to be returned to employment before any strike replacements could be retained. Since I disagree, for the reasons already mentioned, that there was any violation by the company of Section 66, I cannot agree with the majority's subsequent finding that the company had an improper motive in maintaining its back-to-work offer and therefore failed to bargain in good faith.

16. 1 also disagree with the majority's conclusion that Section 64 of the Act has been violat­ed. We heard no evidence from the union to support that claim nor is any rationale offered by the majority to justify its finding.

17. Counsel for the company argued that in making its final back-to-work offer the com­pany relied for its legality directly on the Mini Skools case (see Mini Skools Ltd. [1983] OLRB Rep. Sept. 1514). The Board in that case had quoted with approval from re. Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397 where (at 1430) the Board stated with respect to Section 73 of the Act:

For the first six months of any strike, striking employees have a right to their former jobs on making an unconditional application to this effect with their employer. The only qualifications are where the work is no longer being performed or the employer has ceased operations. The employer cannot refuse the application because another employee is performing the striking employee's job and there are no other vacancies. The striking employee must be returned to his former job even if this results in the layoff, transfer or termination of employment of the replacement employee.

The effect of Section 73 of the Act is that, after the expiry of the six months period, the job secu­rity of the replacement employees vis-a-vis the strikers is reversed:

As a strike endures, the commitment of an employer to the employees who have helped it resist the strike may become great and, in the usual case, it is for the negotiation process to reconcile this commitment with the interest of striking employees to return immediately to their jobs. Where the trade union is unable to negotiate their immediate return because of the employer's commit­ment to replacement employees, striking employees who make an unconditional application to return have to be treated, essentially, as employees on layoff and must be considered in filling subsequent vacancies. (at 1430)

[emphasis added]

It will now come as a considerable shock to the industrial relations community in Ontario to learn that a refusal by an employer to offer immediate recall to strikers for valid economic reasons at the expense of the continuing employment of an equal number of replacements, is illegal after the six months period has elapsed. If the majority has taken into account that impact of its decision it is remarkably well disguised. Section 73 of the Act represents the will of the Legislature of this Prov­ince. It is society's way of balancing the interests of the employer, the strikers and replacement employees when, as here, an impasse occurs. It is in my view wrong for this Board to thwart and circumvent the intent of the Legislature by the circuitous device of finding that the employer's offer of an economically sensible phased-in recall to employment of strikers was designed instead to punish them. Anything less than immediate return to employment of all strikers obviously could be viewed as punishment by those so inclined. However, such a conclusion is a mistaken interpre­tation of the intent and meaning of Section 73, and the error is compounded in this case by the majority's inappropriate and capricious assessment of the evidence.

18. If the intent of the Legislature was that every striker had the absolute right to return to his job (subject only to its still existing) even after expiry of the six months period, then Section 73 would have no meaning or purpose. If that was the intent and such right were denied, other sec­tions of the Act dealing with unfair labour practices could be invoked to resolve the problem. But Section 73 exists and this Board has the obligation to apply it. That section of the Act inherently infers that it is legal after the six months period to retain replacement employees and to re-engage strikers only as vacancies occur if work is not immediately available for all of them. In effect the Legislature has said that that type of return-to-work arrangement is not illegal discrimination against a striker. I conclude that the majority has erred in law in interpreting that section other­wise.

19. Since the majority's decision represents a changed and thus new interpretation of the Act, the financial penalty imposed retroactively by the majority upon the company is totally inap­propriate. The company believed that its offer was legal. It was led to that belief by reliance in good faith upon earlier decisions of this Board in similar circumstances or where similar interpreta­tions of the principles inherent in Section 73 were involved. Where the rules of the game are changed on it in mid-stream, the first company to face this new interpretation should not be bur­dened with the maximum penalty for a violation of the new rules. If there has been a violation of the Act as found by the majority, a finding with which I disagree, there should at most be direction to the company to make a new offer without the total retroactive pay ordered by the majority and without reimbursement of the union's costs. To make the finding it has, and then to compound the inequity by retroactive financial application of a new interpretation of the Act is, in my view, a denial of natural justice as is ordering reimbursement of the union's costs when no evidence was heard to support the finding of a contravention of Section 64.

20. Furthermore the union did not attempt to mitigate its or the strikers' losses by accepting the company's final offer on December 12th, 1984 and getting back into employment as many strikers as possible as quickly as possible before pursuing other avenues in law open to it. The evi­dence before the Board is that there has been a regular turnover among the replacement employ­ees since their initial recruitment began over three and one-half years ago. Given the excessive delay in this decision (it is now over two years since the impugned bargaining of December 1 lth/l2th, 1984 which gave rise to the complaint) and given the employee turnover of which we heard evidence, it is highly likely that most if not all of the strikers interested in returning to work for the company would by now have been accommodated. I recognize that the majority has made its financial penalty subject to "the usual rules of mitigation". In view of all the circumstances of this case such a ruling will likely simply lead to more discord and further unnecessary hearings before this Board. As I have argued, there should be no financial penalty for a retroactive appli­cation of new law; if there is to be one, the manner of mitigation in these unusual circumstances should have been specified as outlined above for the benefit of the parties.

21. In summary I would dismiss the complaint. I believe the Board has erred in its interpre­tation of the Charter and the Act, has failed to consider adequately and appropriately the evidence before it, and has denied natural justice to the respondent company.