Ontario Labour Relations Board

[1988] OLRB Rep. June 627

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

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

APPEARANCES: Brian Shell, Norm Carriere Joe Miles and Dennis Stevenson for the complainant; Michael Gordon and Johnathon Shaw for the respondent; no one appearing for the interveners.

DECISION OF THE BOARD; May 31, 1988

[Paragraphs 1 to 5 omitted: Editor]

6. The Board made the following oral ruling at its hearing in this matter in Toronto on May 27th, 1988, after hearing submissions from counsel for the respondent and without calling upon counsel for the complainant to reply:

Counsel for the respondent has moved for reconsideration of a portion of our remedial order that was made on December 22, 1986 and subsequently amended on February 16, 1987 after a request for reconsideration was made at that time by counsel for the respondent. That portion of the order provides:

"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 respondent presents to the complainant a return to work protocol that does not discriminate between the employees hired after the commencement of the strike and the striking employees.

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.

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."

Counsel for the respondent relies on two subsequent events to make this second request today:

i) the reasons for judgment of the Divisional Court dismissing the application for judicial review of the Board's decision of December 22, 1986 and

ii) comments to the effect that an application for reconsideration could be made at any time which were made by the Board's counsel in the Court of Appeal when the respondent sought and was denied leave to appeal the decision of the Divisional Court dismissing the application for judicial review.

We entertained the motion for reconsideration because of the representations from both counsel, but principally from counsel for the respondent, that collective bargaining between these parties may once again resume, and the request for reconsideration may have an influence on the course of that bargaining.

Counsel for the respondent made lengthy, thoughtful and careful submissions in support of his request. Since a prompt decision on the request is much more important than attempting to articulate counsel's detailed argument, we can only roughly describe what we understand to be the thrust of

it.

Counsel, in essence, submitted that the Board's decision of December 22, 1986 changed the law of this province with respect to the rights of employers who have been legally struck by their employees and the duties owed by employers to their striking employees and the employees that have been hired as strike replacements. Since the law was changed, and because counsel for the respondent was under a misapprehension as to the scope of the original proceeding, the Board's compensation order is, in effect, unfair and is also an impediment to a fruitful collective bargaining relationship being re-established between these parties.

Counsel relies on the following passage in the reasons for judgment of the Divisional Court in Shaw-Almex Industries Limited v. United Steelworkers of America, (1988), 88 CLLC ¶14,007 at page 12,033-34:

"The applicant submits that the panel lost jurisdiction by failing to reconsider the question of remedy, except in a very limited way, after it became obvious that an exchange between the employer's counsel and the panel had left the employer's counsel with the impression that he would have a further opportunity to present evidence and submissions on remedy if the panel found against the employer on the merits.

It appears that the employer's counsel believed, in good faith, that he would have such a further opportunity, and there are some passages in his earlier exchange with the panel and with opposing counsel on which one can see how such a belief could arise and in which one can see some lack of clarity as to how things had been left. This court, had it been in the same position as the Board, would have exercised its discretion to allow further evidence and submissions on the question of remedy as soon as it became apparent that the applicant, in good faith, had been left with the impression that such opportunity would have been afforded.

The question, however, is not how we would have exercised our discretion had we been charged with the duties of the Board, but rather whether the Board lost jurisdiction by acting as it did. The majority of the panel, in making its decision not to reconsider the remedy issue, had before it a letter from applicant's counsel, which advanced with great force and clarity his position with respect to reconsideration.

It is obvious from the panel's reasons in refusing a full reconsideration that they had considered his submission. Although we would have exercised our discretion differently, there was a basis on which the majority of the panel could properly exercise their discretion as they did. We cannot say that they, after considering the reasons advanced by the applicant for reconsideration, lost jurisdiction by failing to grant an indulgence."

The Board, in its decision of February 16, 1987 did reconsider and amend paragraph 73(b) of its order of December 22, 1986 and also dealt with the issue upon which counsel relies. The Board wrote at paragraph 7 and 8 of that decision:

"Counsel for the respondent also submitted that the Board indicated to the parties that the Board would remain seized with determining the appropriate remedy and not damages only. Counsel has reproduced his notes of the exchange among counsel and the Board. His notes are consistent with our recollection of the exchange. The relevant portion of the exchange set out in counsel's notes is:

Gordon: Mr. Chairman, just before we adjourned, I gave the Board an undertaking from which I would like to be relieved. It has to do with the Board remaining seized of this matter.

Freedman: With respect to damages?

Gordon: Yes, I would wish not to agree that you remain seized on second thought.

Freedman: Assuming we are prepared to say that's fine, what's to stop the Board on its own motion to say that in this type of case, why shouldn't the

Board remains seized?

Gordon: To be blunt, my friend has closed his case in chief and adduced no evidence on the subject.

Freedman: That's rather blunt. The name of the case, it escaped me, that dealt with the matter where there was a claim by party of insufficient evidence. The Board wouldn't go ahead whether the Board remained seized or not. The Board is content to allow you to withdraw your undertaking, however, the Board will remain seized of the matter. Even if Mr. Shell had proceeded to adduce evidence~ we would have remained seized of it.

Gordon: I had not obtained instructions on this. I thank you, I'm fine now.

Freedman: All right, the Board will remain seized on the matter for damages notwithstanding the employer's lack of approval.

It was our intention at the time, and it is, in our view, clear from the exchange, that the Board was remaining seized with the issue of determining the quantum of damages, if it became necessary to do so. We did not suggest that we would remain seized with determining the appropriate remedy. We observe here that the question that counsel for the respondent wished to ask that went to the issue of remedy and which prompted the exchange set out above and to which counsel for the complainant objected was withdrawn. The Board did not rule on whether that question or questions along that line were relevant."

With respect, the majority of the Board, Mr. Gallivan dissenting, does not agree that the decision of December 22, 1986 changed the law in the way suggested by counsel. In our view, the Labour Relations Act has always required that employers deal with their employees, whether they are on strike or in any other situation, in a manner that does not discriminate against those employees because they exercised rights under the Act. We did not disagree with any previous Board decision on this point. Rather, it seemed to us that the focus of this case was much more on employer motivation whereas the decisions relied on by counsel, such as Becker Milk Company Limited, [1977] OLRB Rep. Dec. 797 and Fotomat, [1980] OLRB Rep. Oct. 1397, discussed at length in our December 22, 1986 decision, were principally focused on other issues.

As for the comments of the Court with respect to the manner in which we exercised our discretion, we refer to and adopt the following passage from Knight Security Guards Limited, [1970] OLRB Rep. June 377 at 379-382:

"The applicant further submits that '... In view of the opinion expressed by the four Judges, there is certainly reason to gravely doubt the correctness of the Board's decision and in particular its interpretation of section 9 [now section :12]. In our respectful submission, the Board is clearly in error. When an administrative tribunal such as the Board is given exclusive jurisdiction to determine all questions of fact or law that may arise in any matter before it and also is given the protection of a wide privative clause, it ought not refuse to reconsider its decision in circumstances such as these, especially when doubt has been cast upon it by a superior Court. There are, of course, no facts in dispute. The main issue is one of the proper legal interpretations to be given to section 9. A refusal by the Board to deal with the matter at this stage would, in our respectful submission, be tantamount to ignoring the considered opinion of the Courts on this matter, as well as ignoring any assistance or argument questioning its decision....'

The next matter to be dealt with is the applicant's renewed request that we reconsider our decision in the light of the comments made by the Courts.

Section 80 [now section 108] of the Act reads as follows:

'No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.'

The Court of Appeal has found that it has no jurisdiction in view of the preclusive effect of section 80 to 'review' the Board's decision. Since section 80 also precludes the Court from 'questioning' by the Board's decision, if section 80 is binding upon the Courts, by necessary implication the Courts must also have found by the same preclusive effect of section 80 that they have no jurisdiction to 'question' the Board's decision.

This Board, being a creature of the statute, receives its jurisdiction from the Act and must exercise its jurisdiction subject to the strictures of the Act. While the trial division and the appellate division of the Supreme Court of Ontario are courts of superior jurisdiction, they are such only in matters falling within their competence. Section 79(1) [now section 106(1)] of the Act provides that 'the Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes...' This Board has been given exclusive jurisdiction with respect to the powers conferred on it. Accordingly, the Board has sole responsibility in matters falling within its competence, subject only to the limited areas where the Courts have exercised a power of review, e.g., where the Board has failed to exercise its jurisdiction or exceeds its jurisdiction.

As can be seen from the above~ the Courts have not found that the Board has wrongfully exercised its jurisdiction which would entitle the Courts to review the Board's decision's in this case. The Board does not deem it advisable to consider the Court's remarks to be judicial directions in the instant case. If the Board were to decide otherwise, the Board would be acting contrary to the spirit and intent of section 80 by conferring jurisdiction on the Courts which section 80 clearly prohibits. In addition, to do so might place the Board in the position of attaching significance to the Courts' remarks, which the Courts did not intend.

If the Board were to accede to the applicant's request the Board would thereby give to the parties indirectly a right of appeal to or review by the Courts which is prohibited by section 80. Since the Act expressly prohibits review by the Courts, the Board ought not to circumvent the spirit and intent of section 79(1) and section 80 of the Act by cooperating with a party in order to enable that party to do indirectly what the party is prohibited from doing directly.

There is no doubt that the reasoned decisions of the Courts with respect to matters within their jurisdiction, even when expressed obiter dicta, are of great value in cases before the Board. However, such decisions are readily distinguishable from the use to which the applicant has requested the Board to make of the opinions expressed by the Courts in this case."

The Board is the master of its own procedure and in the circumstances of this case, we were and are satisfied that we were not unfair to the respondent. The parties are engaged in litigation over their respective rights under the Act. Litigation ensues risks to both sides, and one of those risks is the possibility that one side will face a risk of loss if its position is unsuccessful. We do not accept counsel's premise that we changed the law and therefore do not accept that the respondent should be relieved from the logical consequence of finding that it violated the Act, which ordinarily is a requirement to compensate those persons who have suffered a loss flowing from the violation.

In our opinion, our remedial order in paragraphs 73, 74 and 75 of our decision of December 22, 1986 as amended by our decision of February 16, 1987 is simply that, that is, an order to compensate for the losses caused by the respondent's violation of the Labour Relations Act.

Mr. Gallivan dissents. For the same reasons expressed in his dissent from the Board's decision of December 22, 1986, he would reconsider the compensation order in the way requested by counsel for the respondent.

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