Paul H. Tremblay v. Ontario Public Service Employees Union, 1987 CanLII 3020

[1987] OLRB Rep. February 284

1713-85-M Paul H. Tremblay, Applicant v. Ontario Public Service Employees Union, Respondent Trade Union, v. Georgian College of Applied Arts & Technology, Respondent Employer, v. Attorney General of Ontario, Intervener

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members A. Grant and L. Collins.

APPEARANCES: Paul H. Tremblay for the applicant; Paul Cavalluzzo for the respondent trade union; David Lepofsky and Chris Dobson for the intervener; no one appearing for the respondent employer.

DECISION OF THE BOARD; February 16, 1987

1. This is an application by Paul H. Tremblay under section 53 of the Colleges Collective Bargaining Act (also referred to in this decision as the "Act", for ease of reference) for exemption on the grounds of religious conviction or belief from the union security provisions in a collective agreement entered into between the respondent trade union (also referred to in this decision as "OPSEU" and the "Union") and the respondent employer (also referred to in this decision as "Georgian College").

2. Section 53 of the Act provides:

(1) The parties to an agreement may provide for the payment by the employees of dues or contributions to the employee organization.

(2) Where the Ontario Labour Relations Board is satisfied that an employee because of his religious convictions or belief objects to paying dues or contributions to an employee organization, the Ontario Labour Relations Board shall order that the provisions of the agreement pertaining thereto do not apply to such employee and that the employee is not required to pay dues or contributions to the employee organization, provided that amounts equivalent thereto are remitted by the employer to a charitable organization mutually agreed upon by the employee and the employee organization and failing such agreement then to such charitable organization registered as such under Part I of the Income Tax Act (Canada) as may be designated by the Ontario Labour Relations Board.

(3) No agreement shall contain a provision which would require, as a condition of employment, membership in the employee organization.

3. Mr. Tremblay also contends that he has been dealt with by OPSEU contrary to section

76 of the Act, which provides:

An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees, whether members of the employee organization or not.

That provision is substantially similar to section 68 of the Labour Relations Act. Although section 68 refers specifically to representation of employees "in a bargaining unit", and section 76 of the Colleges Collective Bargaining Act does not, that limitation is implicit in section 76 in view of section 1(f) of the Colleges Collective Bargaining Act, which defines "employee" as "a person employed by a Board of Governors of a college of applied arts and technology in a position or classification that is within the academic bargaining unit or the support staff bargaining unit...." In the context of section 68 of the Labour Relations Act, it has been consistently held that for the Board to find a breach of the duty imposed by that provision, the union s impugned actions must involve the representation of a bargaining unit employee in relation to his or her employer: see, for example Ronald Lewszoniuk, [1984] OLRB Rep. Jan. 48; Angelo Moro, [1983] OLRB Rep. August 1354; Sylvia Colalillo, [1982] OLRB Rep. July 1066; and Frank Manoni, [1981] OLRB Rep. Dec. 1775. Similar considerations apply to section 76 of the Colleges Collective Bargaining Act. None of the matters which form the basis of Mr. Tremblay's complaints against the Union in the instant case involves his representation by the Union in relation to his employer. Accordingly, having regard to the totality of the evidence and the submissions of the parties, we find that no contravention of that provision has been established in these proceedings.

4. Counsel for the Union notified the Attorney General of Ontario and the Attorney General of Canada that it was OPSEU's intention to question the constitutional validity of section 53(2) of the Act, on the basis that it contravenes sections 2 and 15 of the Constitution Act, 1982. In response to that notice, the Attorney General of Ontario intervened in these proceedings and presented, through counsel from the Ministry of the Attorney General, submissions in support of the the constitutional validity of section 53(2) of the Act. At the outset of his able argument on behalf of the Attorney General, Mr. Lepofsky advised the Board that his submissions would be confined to the constitutional issue, and that he would not be taking any position concerning the merits of the application.

5. In an earlier application under section 53 of the Act (File No. 1564-83-M), Mr. Tremblay sought an exemption from that portion of his Union dues attributable to the following resolution ("Resolution 41"), which was passed at the OPSEU Convention in August of 1983:

WHEREAS it should be the fundamental right of each woman to chose when and if she will bear children; and

WHEREAS present Criminal Code restrictions affect the legality and availability of abortions, and highly organized campaigns are underway to further limit the right to choose; and

WHEREAS there is not a safe and effective method of birth control for each woman;

BE IT RESOLVED that OPSEU endorse a woman's freedom of choice by supporting the right of women to full access to abortion;

BE IT FURTHER RESOLVED that OPSEU demand the removal of abortion from the Criminal Code;

BE IT FURTHER RESOLVED that OPSEU demand that free-standing medical clinics providing abortions fully covered by OHIP be established;

BE IT FURTHER RESOLVED that the Equal Opportunities Co-ordinator prepare a series of three columns for OPSEU News which will explain the problems women face in obtaining a safe, legal abortion; and the reasons why it is important for the trade union movement to take a public stand on this issue.

That application was heard and decided by another panel of the Board (the "Mitchnick panel"). In a unanimous decision dated February 13, 1984 (reported in [1984] OLRB Rep.Feb. 247, and 6 CLRBR (NS) 289), that panel found the application to be premature, and dismissed it without prejudice to Mr. Tremblay's right to re-file if warranted by further developments. In doing so, the panel wrote, in part, as follows:

17. Mr. Tremblay has ... conceded that accommodation of the freedom of speech of other members of the union ought to permit those members to express themselves in the manner they wish, and he has effectively dropped his complaints in that regard. Even the publication of articles in the OPSEU Newsletter, he ultimately conceded, could not be cause for complaint, so long as they essentially endeavour to present a balanced sampling of opinions, and thus are written solely from an educational point of view. Mr. Tremblay's complaint, therefore, has been reduced to the specific expenditure of funds, to which he has contributed through his dues, for purposes fundamentally inconsistent with his religious beliefs.

18. What are the expenditures about which Mr. Tremblay has expressed concern? He points, firstly, to the costs of the annual convention attributable to debate on the "abortion" resolution. But that debate, it seems to us, would fall within the "freedom of speech" area already conceded by the applicant, notwithstanding that that debate fell within the "business" portion of the convention. His complaint, therefore, must be with the adoption of the Resolution itself. And it is only the final paragraph of that Resolution to which Mr. Tremblay, for the purposes of his request for apportionment, has ultimately taken exception: it is only that paragraph which can be said to contemplate an actual expenditure of funds, and which therefore crosses the line that Mr. Tremblay, after struggling to reconcile the freedoms of others with his own, has drawn in his mind. And that is what makes of significance the evidence of the respondent, through Ms. Lankin, as to the present status of the articles authorized to be written. It is the evidence of Ms. Lankin (and we accept that evidence) that neither time nor funds have yet been expended on the proposed articles, because she and the persons to whom she reports at OPSEU have not yet decided what format these articles will take, or how the various views on the subject are to be presented. In light of this, it cannot fairly be said that the line which Mr. Tremblay himself has drawn has yet been crossed.

19. It follows, therefore, that the specific application before us is premature, and must be dismissed, without prejudice, obviously, to Mr. Tremblay's right to re-file should further developments warrant.

20. The applicant has been a Teaching Master at Georgian College since September of 1974. He is a devout Roman Catholic and has been a Simcoe Board of Education trustee representing separate school supporters since 1979. He subscribes to the religious views contained in a pamphlet entitled "Vatican Declaration on Abortion" (which was entered as an exhibit in these proceedings). It is his belief that human life is sacred and that it begins at the time of conception. He is also of the view, on the basis of his religious beliefs, that abortion should not be a matter of choice, as he believes that it involves "execution of an innocent human being". It is clear from the totality of the evidence that, as ultimately conceded by the Union in these proceedings, Mr. Tremblay's beliefs concerning abortion are sincerely held and form part of his religious beliefs. It is, of course, neither necessary nor appropriate for the Board to express any opinion concerning the validity of those beliefs, or to otherwise enter into the "pro-choice" or "pro-life" debate, as the matter of whether the members of this panel of the Board individually or collectively take the same or a different view of the matter is irrelevant.

21. Mr. Tremblay was a strong supporter of the Union and took an active role in its affairs by serving as a steward before the events described in this decision prompted him to resign from the Union and to file the instant application. During the hearing of the present case, Mr. Tremblay suggested that the decision of the Mitchnick panel was incorrect in finding (at paragraph 17 of their decision) that he had "conceded that accommodation of the freedom of speech of other members of the Union ought to permit those members to express themselves in the manner they wish", that he had "effectively dropped his complaints in that regard", and that his complaint had "been reduced to the specific expenditure of funds, to which he has contributed through his dues, for purposes fundamentally inconsistent with his religious beliefs." However, as we indicated to Mr. Tremblay at the hearing of this matter, this complaint is not an appeal or application for reconsideration of that earlier decision. In the absence of a successful application for reconsideration or judicial review of that decision, all of the parties to that case, including Mr. Tremblay, are bound by that decision and will not be permitted to use the present case to relitigate the factual findings and legal conclusions on which it is based.

22. Thus, the sole issue that is properly before us for adjudication in respect of Resolution 41 is the question of whether there has been an actual expenditure of funds pursuant to that resolution. In that regard, we accept the credible, uncontradicted evidence of Maxine Jones, who is a local vice-president of OPSEU Local 138 and a member of the Union's Provincial Executive Board, that no monies have been spent by the Union as a result of that resolution, and that no articles of the type contemplated by that resolution have been written. It is also clear from Ms. Jones's testimony that OPSEU has not made any representations to any level of government concerning the removal of abortion from the Criminal Code or the establishment of free-standing medical clinics providing abortions.

23. After becoming aware that Resolution 41 had been adopted at the 1983 OPSEU Convention, Mr. Tremblay filed charges under OPSEU's Constitution against Ms. Jones, who was the chairperson of the Resolutions Committee for the 1983 convention, and Sean O'Flynn, who was the President of OPSEU at that time. The arbitration board that was constituted to hear those charges found that Mr. O'Flynn and Ms. Jones had committed no offence and, therefore, dismissed Mr. Tremblay's charges against them. However, the arbitration board went on to determine that it was within their authority "to make recommendations that could resolve the issue before [them]". Those recommendations were that Mr. O'Flynn should ensure that another resolution concerning the issue of abortion (Resolution 51) would be the first item of business at the OPSEU Convention in November of 1984, and that Mr. O'Flynn should arrange for a general membership meeting to be held concerning that matter prior to the convention. Mr. O'Flynn and Ms. Jones exercised their rights under Article 22 of the OPSEU Constitution to appeal that arbitration board decision to the Executive Board. That appeal resulted in the arbitration board decision (including the aforementioned recommendations) being quashed by the Executive Board on June 22, 1984. The following reasons for the Executive Board's decision are recorded in the minutes of that meeting:

THE DECISION OF THE ARBITRATION BOARD INCLUDING ITS RECOMMENDATIONS ARE QUASHED.

THE EXECUTIVE BOARD NOTES THAT THE ARBITRATION BOARD EXCEEDED ITS JURISDICTION WHEN HAVING DISMISSED THE CHARGES, THEN (sic] DETERMINED: "IT IS ALSO WITHIN THE AUTHORITY OF THE (ARBITRATION) BOARD TO MAKE RECOMMENDATIONS THAT COULD RESOLVE THE ISSUE BEFORE

THE BOARD."

THE ARBITRATION BOARD DECISION IS IN BREACH OF UNION POLICY AND THE CONSTITUTION IN THAT IF IMPLEMENTED:

A) WOULD CAUSE THE PRESIDENT OF OPSEU TO BREACH UNION POLICY AND THE CONSTITUTION IN CARRYING OUT THE DIRECTION IN ITEM ONE OF THE BOARD DECISION;

B) WOULD SEND A RESOLUTION TO CONVENTION WITHOUT GOING THROUGH THE CORRECT PROCEDURE, FORCING THE RESOLUTION ONTO THE AGENDA AND ON THE CONVENTION FLOOR, SETTING THE PRIORITY FOR THE RESOLUTION ON THE AGENDA CONTRARY TO THE CORRECT PROCEDURES AND CONSTITUTIONAL DIRECTIVES;

C) WOULD PREVENT THE IMPLEMENTATION OF A RESOLUTION PASSED BY CONVENTION.

(The Minutes also indicate that Mr. O'Flynn and Ms. Jones did not vote on the decision and were not present during the in camera session.) The Executive Board also overturned the arbitration board's decision that "the costs be borne by OPSEU Head Office", and directed that the costs of the appeal for both parties be borne by OPSEU Head Office, that the arbitration costs of the accused and their counsel be borne by OPSEU Head Office, and that the arbitration costs of the accuser and his counsel be borne by Mr. Tremblay. The total costs borne by OPSEU Head Office as a result of that direction were approximately $15,000.

10. Mr. Tremblay submitted in the instant case that all of the costs borne by OPSEU Head Office concerning those arbitration and appeal proceedings constituted Union expenditures pertaining to "the abortion issue", and that those expenditures should entitle him to an exemption under section 53 of the Act. However, we find that position to be untenable. All of those costs were incurred by OPSEU as a direct result of arbitration proceedings initiated by Mr. Tremblay himself, through the laying of the aforementioned charges. Having initiated internal Union proceedings which would quite predictably give rise to costs of the type incurred by the Union, Mr. Tremblay cannot legitimately rely upon those expenditures as a basis for obtaining an exemption from payment of Union dues. If the expenditure of funds by the Union for the purpose of paying for the costs generated by such proceedings were in fact fundamentally inconsistent with Mr. Tremblay's religious beliefs, then presumably he could not, in good conscience, have initiated such proceedings. Having regard to all of the evidence, we are not satisfied that there exists a sufficient causal connection between Mr. Tremblay's religious beliefs and his purported objection to those Union expenditures to entitle him to a religious objection under section 53 on the basis of those expenditures.

11. However, the matter does not end there. The primary thrust of this application by Mr. Tremblay is that he should be granted relief under section 53 in view of the fact that in September of 1984 the Ontario Federation of Labour (the "OFL"), of which OPSEU is an affiliate, donated $3,000 to the Ontario Coalition of Abortion Clinics (the "OCAC"), a "pro-choice" organization which advocates free-standing abortion clinics. He also bases his application on the fact that the OFL adopted the following resolution ("Substitute Resolution S2") at its convention in November of 1984:

WHEREAS in January 1984, only one-quarter of Canadian public General Hospitals had therapeutic abortion committees, and of those 18% performed no abortions and 18.2% performed between I and 20 abortions each; and

WHEREAS this indicates that Canadian women in need of abortions have inadequate, and in some cases, no access to proper abortion facilities; and

WHEREAS it is already OFL policy to support a woman's right to choose, including repeal of the abortion law and legislation of free-standing clinics; and

WHEREAS Dr. Morgantaler and his colleagues have been acquitted by a jury for the fourth time;

THEREFORE BE IT RESOLVED that the Ontario Federation of Labour -

1. Urge the Attorney-General Roy McMurtry not to appeal the verdict and cease any further prosecution of the doctors;

2. Urge Justice Minister John Crosbie to immediately move to remove abortion from the criminal code;

3. Support the right of the Morgantaler clinic to continue to function without harassment;

4. Urge Health Minister Keith Norton to approve and fund public free-standing clinics providing medically insured abortions;

BE IT FURTHER RESOLVED that the OFt, demand of the Ontario government that every public health unit be obliged to set up family planning clinics providing a wide range of gynecological services and counselling. Services must be made available to all, regardless of age, without any requirement for parental consent. In rural areas mobile clinics must be provided on a regular basis.

12. To reduce the time required to complete the hearing of this matter, the parties agreed that the following facts concerning, among other things, the relationship between OPSEU and the OFL, would be taken as having been duly proven through the following paragraphs of an affidavit of James Clancy, the President of OPSEU, which affidavit was prepared for use in proceedings before the Supreme Court of Ontario respecting another case:

13. In November 1979 the OPSEU Convention decided to affiliate the Union with the Canadian Labour of Congress [sic], the Ontario Federation of Labour and the National Union of Provincial Government Employees. This decision brought OPSEU into the mainstream of the Canadian labour movement and enabled it to fulfil the purposes of Article 4 of its Constitution by helping to shape labour's policies on social economic and political matters. The delegates to the 1979 Union convention recognized that the strength of the workers depends on their solidarity and that cooperation with other Unions through various coordinating bodies increases their chances of advancing the well being of all their members. These affiliations were done for these purposes.

14. Affiliation with the central labour bodies just referred to is particularly valid for a public sector union such as OPSEU which deals with governments and government funded agencies and whose collective bargaining rights are uniquely constrained by statutes such as the Crown Employees Collective Bargaining Act. In contrast with many unions in the private sector who can raise any matter they wish at the bargaining tablet OPSEU must seek many of its bargaining objectives by lobbying government and when that fails by appealing to the community at large. Since most OPSEU members work for government, the Union inevitably becomes involved in the political process. When government decides for example to close hospitals, or reduce the funding of community colleges or cut back on institutional care for the developmentally handicapped the impact on the Union's members can be devastating. Dealing with issues such as these at the bargaining table is virtually hopeless. The Union is thus forced to enter the political arena to challenge the employer's decisions by appealing to politicians, community leaders, other interest groups and the general public itself. To do this, it needs all the allies it can find and the broader labour movement is a powerful source of help. Such considerations were paramount when the Union decided to join the CLC, the OFL and NUPGE.

15. The technical details of OPSEU's affiliation with these organizations are as follows. OPSEU is charted [sic] as a component of NUPGE, an umbrella organization grouping government employees in eight provinces. NUPGE is chartered as an affiliate of the CLC. Thus, OPSEU's affiliation with the CLC is through NUPGE, and indirect rather than direct. OPSEU is chartered as an affiliate of the OFL, which is the provincial branch of the CLC.

16. Affiliates pay "per capita" fees to support the work of these central labour bodies. The per capita fees are paid out of the Union dues received by each affiliate from the employees it represents and is [sic] based upon the number of employees represented. For this purpose, OPSEU combines part time employees into "equivalent full time dues payers". OPSEU's per capita payments are currently based on an adjusted figure of 75,000 full time employees represented.

17. OPSEU has a total annual revenue raised from employees it represents of $19,048,414 for the fiscal year ending June 30, 1985. OPSEU made per capita payments of NUPGE in fiscal 1984 of $355,200, to the CLC (through NUPGE) in fiscal 1984 of $381,840 and to the OFL in fiscal 1984 of $222,000.

18. NUPGE's total revenue for the fiscal year ending February 28, 1985 was approximately $1,091,521. The CLC's total revenue for the fiscal year ending December 31, 1984 was approximately $9,910,683. The OFL's total revenue for the fiscal year ending June 30, 1985 was approximately $1,970,159.

19. The CLC, NUPGE and the OFL are each governed by their conventions and between conventions by their executive councils. OPSEU like all affiliates is entitled to its per capita number of delegates to these conventions. At each of these conventions, OPSEU delegates constitute a small proportion of all delegates. In no sense can it be said that OPSEU delegates control or are responsible for the decisions of these conventions. Between conventions, the executive councils of the organizations direct their course without formal direction of any kind from OPSEU.

Ms. Jones also confirmed the accuracy of the information contained in those and certain other paragraphs of that affidavit.

13. Carrol Anne Sceviour was also called by the Union as a witness in these proceedings. Ms. Sceviour, who is the President of Local 6624 of the United Steelworkers of America, is one of the twenty-one vice-presidents of the OFL. She is also a co-chairperson of its Women's Committee and its Human Rights Committee. In her testimony before the Board, she confirmed the truthfulness of the facts contained in the following paragraphs of an affidavit (also prepared for use in the aforementioned proceedings before the Supreme Court of Ontario) by Clifford G. Pilkey, who was the President of the OFL at the time of the affidavit and at the time of the events described in this decision:

14. The O.F.L. is composed of more than 2,000 affiliated local unions representing approximately 800,000 Ontario workers. The employees represented by the O.F.L. are employed in virtually every area of the Ontario economy, including both the private and public sectors.

15. The decision to affiliate with the O.F.L. is made democratically by employees represented by individual local unions. Upon becoming an affiliate of the O.F.L., a local makes a monthly payment to the O.F.L. calculated on the basis of 25 cents per employee. These payments represent the only source of funding for the O.F.L., save for occasional government grants for the operation of special programs.

16. Affiliated locals which make per capita payments to the O.F.L. do not earmark certain portions for specific expenditures. Rather, affiliated locals make per capita payments to the O.F.L. in order to maintain their membership in good standing, and in return receive the full range of activities and services, described below, provided by the O.F.L. affiliated locals.

17. The goals and objectives of the O.F.L. include promoting the interests of its affiliates; advancing the economic and social welfare of Ontario workers; securing provincial legislation which will safeguard and promote the principle of free collective bargaining, the rights of workers and the security and welfare of all people; protecting and strengthening democratic institutions in order to secure full recognition and enjoyment of the rights and liberties of Canadians; promoting the cause of peace and freedom in the world, and assisting and co-operating with free and democratic labour movements throughout the world to that end.

18. In order to attain these objectives, the O.F.L. engages in various activities and provides a wide range of services, all of which are intended to safeguard and promote the interests of the 800,000 workers it represents. These services include worker education, research, public relations, and legislative and political action. By providing these services, the O.F.L. spares its affiliates the expense of providing such services on their own, and serves as a central organization through which the interests of affiliated locals can be collectively promoted on a province-wide basis.

19. The specific activities of the O.F.L. include, among other things, the following:

(a) preparing briefs and making submissions and presentations to various task forces, commissions and boards established by the provincial government;

(b) organizing and implementing public campaigns to achieve labour's objectives on matters ranging from racism and affirmative action to day care and medicare;

(c) providing internal education to employees on an ongoing basis, including forums, conferences and publications;

(d) sponsoring and organizing conferences and seminars on such subjects as universal social insurance, human rights for the disabled, interest rates, day care and race relations;

(e) direct contact with government officials and agencies;

(f) support for the New Democratic Party.

9. Officers and staff of the O.F.L. sit as representatives of the labour movement in Ontario on various boards, committees, and commissions which are involved in activities of importance to the working people of Ontario....

10. The O.F.L. has extensive contacts with many other voluntary organizations across Ontario, including major religious, social and economic groups. From time to time, the O.F.L. enters into coalitions with many of these groups around particular issues of concern to its affiliates. Such coalitions have included the Acid Rain Coalition and the Ontario Health Coalition.

11. As is the case with trade union movements in the rest of the free world, the activities of the O.F.L., involve the full range of social and economic matters which touch upon the interests of workers in Ontario. Such activities form part of an integrated program of social and economic action intended to achieve, by democratic means, changes in our society that benefit Ontario workers. Such action is also intended to promote a political and economic atmosphere which will recognize, protect and advance the rights of trade unions and the workers they represent. In this respect, the O.F.L. counterbalances the activities of organized groups of employers such as the Canadian Manufacturers' Association, the Chamber of Commerce, the Canadian Federation of Independent Business, and the Canadian Organization of Small Businesses.

12. The governing body of the O.F.L. is the annual convention, the representation in which is set out in Article 4 of the O.F.L.'s Constitution. The decisions of the convention are by majority vote. Convention delegates from affiliated local unions are ordinarily elected at local union meetings. It is through O.F.L. conventions that affiliated locals set the policy and future direction of the O.F.L.

13. The officers of the O.F.L. are the President, the Secretary-Treasurer, and twenty-one Vice-Presidents, all of whom are elected biannually by majority vote through secret ballot of the convention. The day-to-day operations of the O.F.L. are overseen by the President and Secretary-Treasurer.

14. The Executive Board of the O.F.L. is composed of the President, the Secretary-Treasurer, and the twenty-one Vice-Presidents. The Executive Council is composed of members of the Executive Board and one delegate from each local labour council. The Executive Council is, under the Constitution, the governing body of the O.F.L. between conventions. Members of the executive board chair the various O.F.L. standing committees that supervise ongoing policy concerns. At present there are nine such committees: education; energy, conservation and pollution control; human rights; occupational health and safety; political education; social services; women; labour relations; and constitution and structure. In addition, special committees are established to deal with particular problems as they arise.

15. Decisions as to the specific activities, programs and expenditures undertaken by the O.F.L. are decided by convention on the basis of majority rule and by duly elected officials acting pursuant to convention resolution and in accordance with the powers vested in them by the O.F.L. Constitution....

16. O.F.L. conventions have for a number of years passed resolutions supporting the right of women to choose whether or not to have an abortion, and endorsing legalization of clinics which provide such services to women. The most recent resolution was passed at the 1984 convention.... In order to carry out the purpose of such resolutions, the O.F.L. contributed $3,000 to the Ontario Coalition for Abortion Clinics in the fiscal year 1984-85. This money was specifically to be used for funding a staff person for one day per week for a six-month period. It is the belief of the O.F.L. that securing the right of women to choose whether or not to have an abortion, will improve the health and the social and economic status of women workers in Ontario.

17. It is the belief of the O.F.L. that the activities, programs and expenditures, outlined above, benefit and contribute to the social and economic well-being of the workers it represents. In this respect, they are equally important as, and in some cases more effective than, negotiations with individual employers.

18. The aforementioned $3,000 donation resulted from a deputation made to the Women's Committee on September 10, 1984 by Judy Rebick of the OCAC. After Ms. Rebick explained the financial difficulties faced by the OCAC, it was moved, seconded, and carried that the Committee ask the OFL Executive Board "to approve $3,000 for OCAC to pay for a staff person for one day a week for six months to help organize on the choice issue". That request was approved by the OFL Executive Board on September 19, 1984, at a meeting at which no one from OPSEU was in attendance.

19. During 1984, the OFL Women's Committee consisted of two co-chairpersons (one of whom was Ms. Sceviour), seventeen members, and four alternates. Those 23 persons came from over a dozen different unions. The only person from OPSEU on the committee was Frances Lankin. Ev Sammons, another member of OPSEU, was also in attendance at the Women's Committee meeting on September 10, 1984. However, she was merely present as an observer, in her capacity as a vice-president of the QEL, and not as a representative of OPSEU.

20. The Women's Committee section of the Officers' Report prepared for the November

1984 OFL Convention includes the following information:

The Committee was active in supporting the OFL resolution on abortion clinics through internal union education as well as public support at rallies.

Ms. Sceviour testified that only about one or two percent of the time of the Women's Committee is devoted to activities in support of "pro-choice".

17. The evidence also indicates that the Women's Committee is one of the hundreds of member groups of the National Action Committee on the Status of Women. Other member groups include the Canadian Labour Congress Women's Bureau, the National Union of Provincial Government Employees Women's Committee, and the OPSEU Region 5 Women's Caucus (identified by Union counsel as being a very small group of women in Toronto, which has no status within OPSEU and receives no funding from it).

18. OPSEU sent thirty delegates from each of its seven geographical regions to the OFL Convention that was held in November of 1984. Half of those 210 delegates were the most senior local presidents within their respective regions. The other half were elected at regional meetings to which each local sent two or three delegates (depending on the size of the local). OPSEU's 210 delegates constituted approximately 12% of the 1,700 delegates who attended the convention. The cost of sending those 210 delegates to the convention exceeded $100,000. At the time of registration, each of the delegates received a resolution book containing all of the resolutions in respect of which thirty days' notice had been given. One of the resolutions included in that book was Resolution 52, which pertained to abortions. "Emergency resolutions" can be brought forward within the thirty-day period preceding the OFL Convention. One such resolution which was brought forward in the thirty-day period prior to the QEL 1984 Convention called for the OFL to urge the Attorney-General of Ontario not to appeal the acquittal of Dr. Morgantaler and his colleagues. Substitute Resolution S2 combined that emergency resolution with Resolution 52. Substitute Resolution S2 was presented and distributed on the convention floor, in accordance with the normal OFL procedure. Following a 45 minute debate in which views were expressed for and against it, Substitute Resolution S2 passed by a margin of approximately two to one. OPSEU took no formal position on that resolution, and each of its delegates voted on it according to his or her own conscience.

19. "Pro-choice" supporters had hoped to have Dr. Morgantaler address the 1984 OFL convention. However, fearing the divisiveness of the abortion issue, Mr. Pilkey declined to permit Dr. Morgantaler to address the delegates in plenary session. However, the podium was made available to Dr. Morgantaler while the convention was recessed for a lunch break. Several hundred of the delegates chose to remain in the room to hear Dr. Morgantaler. Approximately $700 was donated to Dr. Morgantaler's legal defence fund through a voluntary collection taken during that recess. Although it initially appeared that those events formed part of the basis of Mr. Tremblay's request for an exemption, during cross-examination by Union counsel Mr. Tremblay clarified his position in that regard by telling the Board, "It wasn't done during the business of the convention. What they do during their lunch is their own business. My complaint is about the resolution."

20. Mr. Tremblay is of the view that "secular humanism" is Dr. Morgantaler's "religion", and that by adopting Substitute Resolution S2, the OFL violated its Constitution by supporting Dr. Morgantaler's religious beliefs. However, it is not within the Board's jurisdiction in these proceedings to determine whether or not such a violation occurred. Accordingly, we express no opinion concerning that matter, which must be resolved in another forum. Mr. Tremblay also expressed concern that Mr. Pilkey had attended a "pro-choice" rally in June of 1983 and had pledged "labour's support" in the battle to change Canadian abortion laws. Mr. Tremblay acknowledged during cross-examination that he is more concerned about the OFL and statements made by Mr. Pilkey than he is about OPSEU and its leaders' statements. His testimony in that regard included the following statements: "I see the OFL as a much more serious problem than OPSEU. I can't get out of the OFL so I am trying to get out of OPSEU.... Pilkey is much more outspoken [in support of] free-standing abortion clinics than Clancy or O'Flynn.... When Pilkey speaks, he speaks as having 800,000 union members behind him. When Clancy or O'Flynn speak they have only [a fraction] of that.... Pilkey is a much more visible figure."

21. In addition to the aforementioned $3,000 which the OFL donated to the OCAC, Mr. Tremblay identified the costs of that portion of the 1984 OFL Convention devoted to the debate and vote on Substitute Resolution S2 as being expenditures pertaining to "the abortion issue" that have been incurred by the OFL, and partially funded by OPSEU. He also suggested that various other indirect expenses, including a portion of the costs incurred by OPSEU in sending a representative to the OFL Women's Committee, constituted "pro-choice" expenditures. However, he advised the Board that he is not seeking a partial exemption such as that requested in the proceedings before the Mitchnick panel, because he has concluded that such an approach is "totally unworkable". Thus, he seeks a total exemption in the present case.

22. At the conclusion of the testimony of the two witnesses called by the Union in these proceedings, the parties advised the Board that they had agreed to the following facts being accepted by the Board without formal proof:

OPSEU has spent many, many thousands of dollars since 1981 in respect of research, education, negotiations, and grievances in respect of reproductive hazards in the work place. Much of the focus has been on VDT's, and the effect of VDT's on the unborn. There have been publications, books, pamphlets, etc.

23. In opposing Mr. Tremblay's application, counsel for the Union attempted once again to persuade the Board to find that section 53 applies only to persons who are opposed to trade unionism in general. In support of that position, he noted the Legislature's use of the word "an" rather than "the" before 'employee organization' in section 53(2). He also referred the Board to the dissent in Mary Guyer and Barbara Janice Hall, [1985] OLRB Rep. July 1057, and the Canada Labour Relations Board decision dated May 26, 1986 in Richard Barker and Teamsters Union Local 938. However, nothing in that dissent or in the C.L.R.B. decision persuades us that we should depart from the approach which this Board has consistently followed for over fifteen years since its decision in Klaas Stel, [1971] OLRB Rep. July 363, in the context of section 47 of the Labour Relations Act, and which, for the reasons contained in paragraph 11 of the Mitchnick panel's decision, is equally applicable to section 53 of the Colleges Collective Bargaining Act.

24. In arguing against the granting of an order under section 53, counsel for the Union noted that Mr. Tremblay had expressed the view that "a pro-life organization tries to protect the life of the unborn". Applying that definition to the agreed facts quoted above, counsel submitted that, on Mr. Tremblay's terms, OPSEU is a "pro-life" organization. However, we do not find the characterization of OPSEU as a "pro-life" or "pro-choice" organization to be of assistance in deciding this case. The key issue in these proceedings is whether Mr. Tremblay has satisfied the Board on the balance of probabilities that he objects to paying dues or contributions to OPSEU because of his religious convictions or belief.

25. Union counsel also submitted that acts or omissions of the OFL, such as its $3,000 donation to the OCAC and its adoption of Substitution Resolution 52, do not provide Mr. Tremblay with a valid basis for exemption under section 53(2) as they are not acts or omissions of OPSEU. In this regard, it was his contention that it is implicit in section 53(2) that the basis for exemption must be an act or omission of the employee organization itself, and not of some other entity.

26. In Humber College, [1983] OLRB Rep. Sept. 1472, Dr. J. Immanuel Schochet, who was the Rabbi of a Jewish congregation in Toronto and a teacher of philosophy at Humber College, applied for an exemption from payment of dues to OPSEU on the basis of OPSEU's participation in an OFL Convention in November of 1982 at which a resolution was passed concerning the Middle East, in which the OFL urged the Canadian Labour Congress "to call upon the Canadian Government to support all avenues toward lasting peace in the region including:

• withdrawal of all foreign troops from Lebanon and their replacement by a United Nations peace-keeping force,

• recognition of Israel's right to live within secure borders based on pre-1967 boundaries,

• recognition of the right of the Palestinian people to a secure and independent homeland,

• recognition of the PLO as the legitimate representative of the Palestinian people."

In unanimously dismissing that application, another panel of the Board (chaired by the person who vas the Chairman of the Board at that time) found that the basis of Dr. Schochet's claim for exemption was political rather than religious in nature, and also concluded that his objections were 'entirely too remote in relation to [OPSEU] to satisfy the Board that [he] objects to paying contributions because of his religious convictions."

27. In Re Ontario Public Service Employees Union and Forer et al. (1984), 1984 CanLII 1875 (ON HCJ), 46 O.R. (2d) 789, 10 D.L.R. (4th) 602, the Divisional Court quashed a decision of the Ontario Public Service Labour Relations Tribunal which had granted a "religious exemption" to Chaim Forer from payment of dues to OPSEU on the basis of the aforementioned OFL resolution concerning the Middle East (pursuant to section 16(2) of the Crown Employees Collective Bargaining Act, which is identical to section 53(2) of the Colleges Collective Bargaining Act in all material respects). In quashing that decision, the majority of the Court approved the Board's decision in Humber College, supra, and expressed agreement with the Board's reasoning on "both the question of remoteness and the requirement that the words or actions leading to an objection must have some measure (viewed objectively) of religious content." In commenting on the remoteness from OPSEU of the OFL resolution, Smith J. wrote, in part, as follows (for the majority):

Another equally cogent reason why the Tribunal's decision cannot stand lies in the remoteness of the OFL resolution. OPSEU as such took no position and it is of course the bargaining agent.

(The majority went on to note that since the Canadian Labour Congress had rejected the thrust of the resolution, the substratum of the "religious objection" had disappeared by the time the Tribunal heard the matter.) On November 21, 1985, the Ontario Court of Appeal allowed an appeal by Mr. Forer and the Tribunal from that judgment, on the grounds that the privative clause (s. 39 of the Crown Employees Collective Bargaining Act) precluded judicial interference with the Tribunal's decision as it was not "patently unreasonable", and as there was some evidence before the Tribunal which would support its factual findings. In writing the unanimous judgment of the Court, Blair J. A. characterized remoteness as a "factual issue", and wrote as follows concerning that issue (in (1986), 1985 CanLII 2257 (ON CA), 52 O.R. (2d) 705, at pages 728 and 729, and 23 D.L.R. (4th) 97, at page 121):

In order to avoid confusion with the main question of interpretation and application of s. 39, 1 deferred reference to two factual issues on which the majority in the Divisional Court disagreed with the Tribunal. The first issue arises from the fact that the resolution, against which Mr. Forer complains, was not passed by OPSEU, the union to which his dues were paid, but by the OFL, a federation of unions of which OPSEU was only one member. The argument was that OPSEU itself had done nothing to justify an objection under s. 16(2). The majority in the Divisional Court accepted this argument and held that the OFL resolution was too "remote" to provide a valid ground for objection by a member of OPSEU.

The second issue is whether, at the time of the hearing by the Tribunal, there was any Middle East policy in existence to which Mr. Forer could object. It will be recalled that, under its constitution, the OFL could only recommend foreign policy resolutions for adoption by the CLC. The material placed before the Tribunal by OPSEU included a letter from the CLC to the OFL which reported that the resolution had been discussed at a meeting of the CLC executive council and that it had been decided "to reiterate the position of the CLC on the Middle East". After the Tribunal's decision an affidavit was filed with the Divisional Court stating that the effect of the CLC's action was to reject the resolution of the OFL. The majority in the Divisional Court held that the OFL resolution was "spent" because it could have no effect unless accepted by the CLC.

Saunders J. dissented holding that there was some evidence before the Tribunal which would support its decision on both issues. I agree with him that such evidence exists. The fact of its existence precludes any interference with the Tribunal's decision.

28. In Mary Geyer and Barbara Jannis Hall, [1985] OLRB Rep. July 1057, another panel of the Board was called upon to determine whether two secretaries employed by the Niagara South Board of Education were entitled to be exempted from payment of dues to OPSEU under section 47 of the Labour Relations Act. One of the bases upon which the exemption was requested was the passage of Substitute Resolution S2 at the OFL convention in November of 1984. In rejecting that as a basis for exemption under section 47, the Board wrote, in part, as follows:

29. [Mary Geyer's] objection to the payment of dues stems first from her opposition to abortion and the OPSEU's association with the OFL's stand on abortion.... It is true that her concern about abortion arose because of her understanding that OPSEU had adopted the OFL's position on abortion. The evidence of Mrs. Jones makes it clear that OPSEU, as an organization, had not taken a formal position with regard to the OFL resolution. This made the situation similar to that in the applications of Mr. Schochet in Humber College, [1983] OLRB Rep. Sept. 1472 and the Ontario Public Service Employees Union and Forer,[19841 1984 CanLII 1875 (ON HCJ), 46 O.R. (2d) 789 (Ont. Div. Ct.). In those cases, OPSEU's mere affiliation with an OFL resolution absent an official stand taken by OPSEU on a particular issue, was held to be too remote to be a foundation for a religious objection to membership....

30. We respectfully agree with the reasoning in those decisions and, having regard to the totality of the evidence, find the concept of "remoteness" to be applicable in the circumstances of the instant case. The OFL actions to which Mr. Tremblay objects are its donation of $5,000 to the OCAC in September of 1984, the "pro-choice" activities of Mr. Pilkey and the OFL's Women's Committee, and the passage of Substitute Resolution S2 at the OFL Convention in November of 1984. However, OPSEU was not in a position to prevent the OFL, its officials, or the majority of the delegates to its 1984 Convention, from engaging in any of those actions. OPSEU had only one representative on the OFL's twenty-three person Women's Committee. That Conunittee's request that the OFL Executive Board donate $3,000 to the OCAC was approved by the OFL Executive Board at a meeting at which no one from OPSEU was in attendance. Moreover, there is nothing in the evidence which suggests that a different result would have obtained if someone from OPSEU had been in attendance and had voted against the payment. It is clear from the totality of the evidence that, as but one of the many affiliates of the OFL, OPSEU is not in a position to dictate the activities in which the OFL, its officials, and its committees will or will not engage. With respect to the passage of Substitute Resolution S2, OPSEU's 210 delegates constituted only about 12% of the 1,700 delegates who attended the OFL Convention in November of 1984, at which the resolution was passed by a margin of approximately two to one. OPSEU took no formal position on that resolution, and each OPSEU delegate voted on it according to his or her own conscience. Thus, it is clear that the passage of that resolution was also a matter beyond the control of OPSEU.

31. For the foregoing reasons, the Board is not satisfied on the basis of the evidence before it that the applicant, because of his religious convictions or belief, objects to paying dues or contributions to OPSEU. In view of our conclusion in that regard, it is unnecessary for the Board to comment upon the submissions of the parties with respect to the constitutional validity of section 53(2) of the Act.

32. For the foregoing reasons, the application is hereby dismissed.