United Food & Commercial Workers International Union, Local 175 v. Cuddy Chicks Limited, 1988 CanLII 3696

United Food & Commercial Workers International Union, Local 175 v. Cuddy Chicks Limited

[1988] OLRB Rep. May 468

0310-87-R United Food & Commercial Workers International Union, Local 175, Applicant v. Cuddy Chicks Limited, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members J. A Ronson and R. R. Montague.

APPEARANCES: Douglas J. Wray, Win. Richardson and Don Dayman for the Applicant; George W. Adams, Henry Dinsdale, Ted Sefton, Bill Stephens and Carol Ritter for the Respondent.

DECISION OF VICE CHAIR PATRICIA HUGHES AND BOARD MEMBER R. R. MONTAGUE; May 6, 1988

1. The name of the respondent is amended to read "Cuddy Chicks Limited".

2. The United Food & Commercial Workers International Union, Local 175 ("the union") seeks certification as the exclusive bargaining agent of the employees at the hatchery of Cuddy Chicks Limited ("Cuddy Chicks" or "the employer"). The employer maintains that those employees are persons "employed in agriculture" and are therefore not covered by the Labour Relations Act ("the Act") by virtue of section 2(b) of the Act. The union contends, however, that section 2(b) of the Act is contrary to the Canadian Charter of Rights and Freedoms ("the Charter") and that if we find that these employees are employed in agriculture, we should ignore the exemp­tion and proceed with its certification application. Counsel for the union advised the Attorney Generals of Ontario and Canada of its Charter application, as required by the Board: F.D. V. Con­si' ruction Limited, [1986] OLRB Rep. May 617; Dominion Paving Limited, [1986] OLRB Rep. July 946. The Attorney General of Ontario, by letter dated July 8, 1987, asked to be acknowledged as an "interested party" to the proceedings and was given notice of this hearing, but was not repre­sented.

3. Hearings into the union's application for certification were originally held May 22 and June 29 and 30, 1987 before a different panel of the Board ("the first panel"). After the comple­tion of the hearing, but before that panel released its decision, one of the panel members, Mr. Jim Wilson, passed away. A new panel was therefore constituted to permit the parties to adduce evi­dence and make submissions on the issues arising out of the application. (The chair of the first panel is also the chair of the new panel.) In effect, these matters are to be dealt with as if they had not previously arisen before the Board except for the issues resolved by the parties in their meeting with the Labour Relations Officer prior to the start of the hearing before the first panel. (The par­ties are agreed that the report of the Officer applies to the proceedings before this panel.) The report of the Officer indicates that at that time, the parties agreed on the descriptions of a full-time and a part-time bargaining unit and were given the count. With respect to the part-time unit, the number of cards filed by the union was insufficient to permit a vote; with respect to the full-time unit, however, the number of cards filed by the union is sufficient to warrant certification without a vote subject to the determination of the employer's objection and, should that objection be suc­cessful, to the determination of the union's Charter challenge to section 2(b) of the Act.

4. Three dates were fixed for the hearing before the new panel. In a letter dated Decem­ber 17, 1987, however, counsel for the employer wrote to the Board requesting that a day be fixed prior to those already set in order to hear the employer's objection to the Board's taking jurisdic­tion to entertain the Charter issues raised by the union. As a consequence, the parties made sub­missions on that matter alone on a date specifically set aside for that purpose.

5. We reserved our decision on that matter until after the parties had subsequently adduced evidence and made submissions on the issue of whether the employees are "person[s] employed in agriculture". At the conclusion of argument on April 28, 1988 the agricultural issue we recessed briefly and orally gave the parties our "bottom line" decisions on both matters, and indicated reasons would follow.

6. We held unanimously that the employees are employed in agriculture and therefore the Act does not apply to them. The majority held that the Board has jurisdiction to entertain the Charter challenge brought by the applicant. We now give our reasons for both decisions.

Whether The Employees are Persons Employed in Agriculture

7. Section 2(b) of the Act states that

8. This Act does not apply,

(b) to a person employed in agriculture

The issue before us is whether employees who are responsible for monitoring the development of embryonic chickens and otherwise caring for the eggs during incubation and for certain aspects of the hatched chicken are employed in agriculture. (The agreed-to unit is an all employee unit. The union does not ask that we distinguish any employees from the others in the unit with respect to whether they are employed in agriculture or not.)

8. The respondent called evidence about the operation of this hatchery and expert evi­dence about the history and nature of the hatching process. The applicant called no evidence but argued that these employees do not engage in activities which can be defined as agricultural; fur­thermore, the employees work in an environment similar to that and under conditions akin to those in a factory. Counsel argues that the operation is not a family farm, nor is it seasonal; he says the employees are not engaged in feeding and growth but in a mechanized, highly automated, care-taking function.

9. There is no doubt that the hatchery is a highly mechanized, technologically sophisti­cated operation and that the employees in many respects work in factory-like conditions with set shifts, year-round employment and the benefits and disciplinary provisions similar to or the same as one would expect to find in a factory. We accept respondent counsel's submission that agricul­ture has become highly technological and commercial, but that that does not make those activities non-agricultural: Wellington Mushroom Farm, [1980] OLRB Rep. May 813. It is thus the nature of the activities and not the way they are performed or the tools by which they are performed that is relevant.

10. The primary purpose of the hatchery is to incubate fertile hatching eggs which come from breeding farms; the day old hatched chicks are taken to growing farms. One-third of the eggs come from farms owned by the Cuddy family, one-third from farms with which Cuddy Chicks has contracts and one-third from the United states; the day old chicks go to growing farms, in some of which the Cuddy family has an interest. We are concerned only with the hatchery employees.

11. The eggs, which are placed in a setter at the start of the incubation period, must be rotated 90 degrees every hour (to avoid the yolk touching the membrane) and kept at a specified temperature and humidity. The employees make mechanical and manual checks of those variables. They do not actually handle the eggs except to take a sample at 10 days to test for fertility. A fail­ure to maintain the appropriate conditions will result in a decline in the hatchability of the eggs. For example, if the setter is too dry, the eggs dehydrate, killing the embryo; if the humidity is too high, there will be too much water vapour, leaving insufficient room for the development of the air cell, preventing the chick from hatching. After eighteen or nineteen days, the eggs go into the hatching room where the temperature, humidity and air flow are carefully controlled but they are no longer turned. They hatch on the twenty-first day. The embryo is a developing, growing orga­nism. The intended result of the process are the live chicks which are graded, sexed and vaccinated by hatchery employees and then sent on to the growing farms.

12. In Spruceleigh Farms, A Division of Canada Packers Limited, [1972] OLRB Rep. Oct.

860, the Board held that the employees of a hatchery operated by the respondent were persons employed in agriculture. Those employees "grade[d] the eggs, tend[ed) the incubators and administer[ed] to the hatched chicks which [were] packaged in containers and [were] shipped to growing farms [owned by the respondent]". The eggs had been delivered to the hatchery from the respondent's breeding farms. The respondent also had contracts with other breeder and grower farm operators. The Board stated that "the breeding, hatching and growing operations ... are all part of the life cycle of a chicken and each forms an integral part in the operation of raising chick­ens". The Board was concerned, as are we, with only the employees of the hatchery. It specifically held that the growing of chickens, the activity in which the employees were engaged, is "part of the business of agriculture within the meaning of section 2(b) of the Labour Relations Act". We find nothing in the case before us that distinguishes it from the facts in Spruceleigh Farms, supra. We find that the incubation and hatching processes are agricultural in nature.

13. Since the activities of these employees are in themselves agricultural, we do not have to deal with the question of whether their activities, if they were not in themselves agricultural, would nevertheless be integral to an agricultural operation; therefore, Sunnylea Foods Limited, [1980] OLRB Rep. Apr. 530, Ontario Tree Fruits Co-operative Limited, (1962) 62 CLLC ¶16,235 and the cases following it referred to by counsel, are not applicable here.

14. For the reasons given in Spruceleigh Farms, supra, we find that these employees are employed in agriculture within the meaning of section 2(b) of the Act. Accordingly, we now give our reasons for holding that the Board has jurisdiction to entertain the Charter challenge brought by the union.

The Board's Jurisdiction to Hear the Charter Challenge

15. The tasks before us are to determine whether the Board is a "court of competent juris­diction" within the meaning of subsection 24(1) of the Charter and, regardless of our answer to that question, whether we are permitted or required to apply the Charter to matters before us on the basis of subsection 5 2(1) of the Charter. Those sections read as follows:

24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court consid­ers appropriate and just in the circumstances.

52(1) 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.

16. The Board has held since the enactment of the Charter that it has jurisdiction to enter­tain Charter issues arising in matters before it by virtue of section 52 of the Charter: Third Dimen­sion Manufacturing Limited, [1983] OLRB Rep. Feb. 261. This approach has been consistently fol­lowed by the Board; see, for example, Shaw-Almex Industries Limited, [1986] OLRB Rep. Dec. 1800 (application for judicial review dismissed, unreported decision of the Divisional Court, Feb­ruary 11, 1988; application for leave to appeal to the Court of Appeal dismissed, February 22, 1988). Counsel for Cuddy Chicks would have us reassess that approach and find that we do not have jurisdiction, under either subsection 24(1) or section 52 of the Charter.

17. It has now been clearly established that the Charter does not enlarge or extend the jurisdiction of a court or tribunal. The Charter does not confer jurisdiction to deal with applica­tions made under it; that jurisdiction must derive from a source external to the Charter. Thus the phrase "a court of competent jurisdiction" under subsection 24(1) obtains its meaning, not from the Charter, but from the authority of the relevant forum as it existed prior to the Charter's coming into effect and as it exists independently of the Charter. A body is "a court of competent jurisdic­tion" if it has jurisdiction over the persons and subject matter before it and the authority to grant the remedy requested: R. v. Morgentaler, Smoling and Scott (1984), 1984 CanLII 55 (ON CA), 16 C.C.C. (3d) 1 (Ont. C.A.), approved in Mills v. The Queen (1986), 1986 CanLII 17 (SCC), 29 D.L.R. (4th) 161 (S.C.C.), at page 177. In Morgentaler, supra, the accused attempted to appeal a decision of the trial judge who had refused their motion to quash or stay the indictment which had been preferred against them that they allegedly con­spired to procure abortions contrary to sections 251(1) and 423(1)(d) of the Criminal Code. The Court of Appeal held that it has no authority to hear appeals in interlocutory matters and that sec­tion 24(1) of the Charter "does not purport to create a right of appeal or bestow appellate powers on this or any other court. Rather it authorizes those courts which have statutory appellate juris­diction independent of the Charter to exercise the remedial power in s.24(1) in appropriate cases when disposing of appeals properly brought before the court". Nor did the Court find jurisdiction in section 52 of the Charter. The trial court was the appropriate court in which the accused, in these circumstances, could apply under subsection 24(1) for a remedy for the purported Charter violations. ft should be noted that it was not alleged that any specific Charter right was infringed by the Court of Appeal's lack of authority to hear appeals of interlocutory rulings; nor did the Court of Appeal hold that because it did not have jurisdiction prior to the Charter to hear such appeals, it did not have jurisdiction over the persons (that is, the accused) or the subject matter before it to determine the matter raised by them.

18. The most elaborate consideration of the phrase "court of competent jurisdiction", albeit limited to the criminal context, occurs in Mills, supra. In that case, the Supreme Court of Canada found that a provincial court judge presiding at a preliminary inquiry is not a court of com­petent jurisdiction because he or she cannot grant a remedy for a violation of the Charter's guaran­tee in section 11(b) of a right to a trial within a reasonable time. The accused had sought a stay of the proceedings on the basis that his section 11(b) right had been infringed. Although the prelimi­nary hearing judge dismissed the motion, he held that he was a court of competent jurisdiction within the meaning of subsection 24(1) of the Charter. All the members of the Supreme Court held that a provincial court judge presiding at a preliminary inquiry is not a court of competent jurisdic­tion, although three justices held that such a judge has authority to exclude evidence under subsec­tion 24(2) of the Charter. Speaking for the majority, McIntyre J. pointed out at pages 172-173 that the procedural and substantive powers of a preliminary hearing magistrate are specifically set out in sections 465, 468 and 475 of the Criminal Code (granting a stay is not among those powers) and that

[h]e has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy. He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter right has been infringed or denied. He is therefore not a court of competent juris­diction under s.24(1).

19. The Court acknowledged that most applications for a Charter remedy in criminal mat­ters will be made to courts exercising criminal jurisdiction other than the provincial superior court. As stated by McIntyre J., in Mills, supra, page 73, these courts will be courts of competent jurisdic­tion, "where they have jurisdiction conferred by statute over the offences and persons and power to make the orders sought" and "[a] claim for a remedy under s.24(l) arising in the course of the trial will fall within the jurisdiction of these courts as a necessary incident of the trial process". The inferior courts never have jurisdiction where the claim is for a prerogative remedy or "where a claim for relief, if granted, would involve interference in proceedings before another court". In such cases, only the superior court will have jurisdiction, as it will when it is the court of first instance, that is, "in cases where the issue arises in matters proceeding before it or where the pro­ceeding originated in that court because of the absence of another forum with jurisdiction" (Mills, supra, page 174). However,

[tlhe superior court function will not displace that of other courts of limited jurisdiction. Consid­erations of convenience, economy and time will dictate that remedies under s.24(1) will ordinar­ily be sought in the courts where the issues arise.

Again, the dissenting judges shared the view that superior courts, while always having jurisdiction, should decline to exercise it where the trial court is competent to award just and appropriate relief.

20. The analysis in Mills, supra, was affirmed and clarified in Rahey v. The Queen (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.). Rahey maintained that his right under section 11(b) of the Charter had been violated with respect to his trial for alleged contravention of the Income Tax Act. A con­siderable portion of the delay was the result of repeated adjournments initiated by the trial judge for his decision on the defence's motion for a directed verdict. A judge of the Nova Scotia Supreme Court ruled that while the trial court, in that case the provincial court, would normally have jurisdiction to deal with the Charter application, in that case, because the delay resulted from the trial judge's own actions, the superior court should exercise its jurisdiction. In agreeing with that decision, the Supreme Court of Canada confirmed that the superior court will exercise juris­diction only in exceptional circumstances. Lamer, J., speaking for himself and five other judges, said at pages 298-299:

As was decided in Mills v. The Queen, supra, a court of competent jurisdiction for the purposes of s.24(1) in an extant case is, as a general rule, the trial court. It is the judge sitting at trial who would have jurisdiction over the person and the subject-matter and would have jurisdiction to grant the necessary remedy. In Mills, it was also decided that the superior courts should have "constant, complete and concurrent jurisdiction" for s.24(1) applications. But it was therein emphasised that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other cir­cumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate. The clearest, though not necessarily the only, instances where there is a need for the exercise of such jurisdiction are those where there is as yet no trial couri within reach and the timeliness of the remedy or the need to prevent a continuing violation cf rights is shown, and those where it is the process below itself which is alleged to be in violation of the Charter's guarantees. The burden should be on the claimant, in this case Mr. Rahey, to establish that the application is an appropriate one for the superior court's consideration.

Thus, the presumption is in favour of the body in which the matter involving the Charter applica­tion first arises; this is indicated by McIntyre J.'s comments in Mills, supra, that "[c]onsiderations of convenience, economy and time will dictate that remedies under s.24(1) will ordinarily be sought in the courts where the issues arise" and by Lamer J.'s statement in Rahey, supra, that "[t]he burden should be on the claimant ... to establish that the application is an appropriate one for the superior court's consideration". Where the forum of first instance has jurisdiction over the person and subject matter and authority to grant the remedy requested, it is a "court of competent jurisdiction" within the meaning of subsection 24(1) of the Charter and, in the normal course, will be the appropriate forum to determine Charter issues arising out of matters otherwise properly before it.

21. Does the Ontario Labour Relations Board have status as "a court of competent juris­diction"? And if the answer to that question is in the affirmative, is there anything in this particular case which would make the superior court a more appropriate forum than the Board in which the applicant should raise the Charter challenge to section 2(b) of the Ontario Labour Relations Act? In Mills, supra, the Supreme Court limited its analysis to traditional criminal courts. The only ref­erence to tribunals can be found at pages 190-191 of the dissent of Lamer J. in which he parentheti­cally observed that "[wi need not decide here whether tribunals are included in the word 'court"'. Thus while Mills, supra, is determinative of the meaning of the phrase "competent jurisdiction", it leaves the meaning of the term "court" in that context yet to be decided. We find assistance on the latter point in the decisions of lower courts which have considered the question, however, although in some instances the forum at issue was a board of arbitration appointed under a collective agree­ment, rather than a tribunal appointed to interpret and administer a statutory scheme.

22. We were referred to several cases in which tribunals similar to the Board have been found to be "courts of competent jurisdiction". The British Columbia Court of Appeal, in Moore v. The Queen in Right of British Columbia (unreported, February 3, 1988), aff'g (1986), 1986 CanLII 1107 (BC SC), 4 B.C.L.R. (2d) 247 (B.C.S.C.) [leave to appeal to the S.C.C. dismissed May 26, 19881, found that a board of arbitration which obtained its powers from the Labour Code of British Columbia, is a court of competent jurisdiction. Moore had complained that she had been dismissed from her posi­tion as a social worker with the Ministry of Human Resources in contravention of her freedom of conscience and religion when, on religious grounds, she refused to sign an authorization to pay a claim for abortion expenses. The court found that the arbitration board had jurisdiction over the parties, the subject matter (dismissal) and could "provide all the remedies appropriate for a court of competent jurisdiction to grant under section 24(1)". The court, on the other hand, did not have jurisdiction to deal with Moore's grievance and grant her a remedy for dismissal where there was a collective agreement in effect. Subsequently, the British Columbia Labour Relations Board found itself to be a court of competent jurisdiction to entertain an argument that the picketing provisions of the British Columbia Labour Code contravened the Charter's guarantee of freedom of expres­sion: Overwaitea Foods Division of Jim Pattison Industries Ltd. (1987), 14 C.L.R.B.R. (N.S.) 268.

23. The Federal Court of Appeal has held that an umpire on appeal from a decision of a Board of Referees under the Unemployment Insurance Act, 1971 is a court of competent jurisdic­tion: Clarence Zwarich v. Attorney General of Canada (1987), 1987 CanLII 8935 (FCA), 26 Admin L.R. 295, which dealt with whether a provision under the Unemployment Insurance Act exempting from receipt of benefits a person who lost employment because of a stoppage of work resulting from a labour dis­pute contravenes sections 7 and 17 of the Charter, and Joseph Edward Robinson v. Attorney Gen­eral of Canada (unreported; June 17, 1987), in which the issue was whether a distinction made under the Unemployment Insurance Act between payments received under group insurance plans (deemed to be earnings) and payments received under private plans (not deemed to be earnings) is discriminatory under section 15 of the Charter. In both cases, the Court held that while the umpire should have considered the Charter arguments, he should have rejected them as having no merit. Section 96 of the Unemployment Insurance Act, which sets out the powers of the umpire, begins "[a]n umpire may decide any question of law or fact that is necessary for the disposition of any appeal taken pursuant to section 95 ...." and goes on to permit the umpire to dismiss the appeal, confirm, rescind or vary the decision, give the decision that should have been given by the board of referees, or refer the matter back to the board of referees with directions if appropriate. In Zwarich, supra, Pratte J., for the Court, acknowledged that "neither a board of referees nor an umpire ha[s] the right to pronounce declarations as to the constitutional validity of statutes and regulations", but they do have the responsibility of determining that the provisions they are required to apply have been constitutionally enacted; specifically, the umpire can decide whether the Board of Referees' decision accords with the law only after he has determined that the provi­sion it applied was constitutionally enacted. The same analysis underlies the decision in Robinson, supra.

24. In Edward Fat Law v. Solicitor General of Canada and Minister of Employment and Immigration, 1983 CanLII 5023 (FC), [1983] 2 F.C. 181, Mahoney J. held that the Immigration Appeal Board ("the Appeal Board") is "a court of competent jurisdiction" on the basis of its powers under subsection 59(1) of the Immigration Act which, in relation to the particular matter at issue before the Appeal Board (a removal order) grants the Appeal Board "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the mak­ing of a removal order".

25. Counsel for Cuddy Chicks referred us to several cases which he submits stand for the proposition that we do not have jurisdiction to hear the union's Charter argument. In none of these cases was the court required to determine whether a tribunal possessing powers similar to those exercised by the Board is a court of competent jurisdiction.

26. In United Nurses of Alberta, Local 115 v. Foothills Provincial General Hospital Board (1987), 1987 CanLII 3392 (AB QB), 40 D.L.R. (4th) 163, Chrumka J., of the Alberta Court of Queen's Bench, found that a board of arbitration was not a court of competent jurisdiction. The collective agreement required the employer to put up a bulletin board for the union to post its activities, but reserved to the employer "the right to require that posted materials damaging to the Employer be removed". The hospital had taken down material posted by the union; in an interim decision, the board of arbitra­tion found that this did not breach the collective agreement (Chrumka J. approved this finding.) Subsequently, the board of arbitration considered the union's Charter argument that this provision contravened the Charter's freedom of expression, finding that it was a court of competent jurisdic­tion (a position with which both counsel apparently agreed), because the remedy it would grant, should the applicant be successful, was a declaration that the employer's actions in removing the material were a violation of the collective agreement. Presumably, in order to find that the hospital had violated the collective agreement, the board of arbitration, in light of its interim ruling, would have had to find that the second part of the relevant article, reserving rights of removal to the employer, contravened the Charter and would therefore have had to treat the provision as if it did not contain that qualification. Chrumka J. was of the view that the board of arbitration did not have the authority to grant the required remedy, which he characterized as a declaration that the impugned provision in the collective agreement was invalid, since the scope of its jurisdiction to deal with Charter matters depends on the scope of its jurisdiction in the collective agreement which specifically prohibits the arbitration decision from altering, amending or changing the terms of the collective agreement. It should be noted that although he did not consider this particular board of arbitration to be a court of competent jurisdiction because the remedy requested was outside its jurisdiction, Chrumka J. expressed the view more generally that 'a court of competent jurisdiction' is not restricted in its meaning just to courts of record but includes any tribunals which are cre­ated or exist under authority of law for the purpose of administrating justice". It is also useful to note that in contrast to the limited powers of the arbitration board in Foothills Provincial General Hospital Board, supra, under the British Columbia Labour Code, which applied in Moore, supra, a board of arbitration has the explicit power to interpret statutes "intended to regulate the employ­ment relationship of the persons bound by a collective agreement notwithstanding that [their] pro­visions conflict with the terms of the collective agreement".

27. Attorney General of Canada v. David J. Vincer (unreported decision of the Federal Court of Appeal, December 1, 1987) involves the jurisdiction of a review committee under the Family Allowances Act, a forum of appeal for a person whose claim for an allowance has been denied by officials of the Department of National Health and Welfare. The remedy sought was to pay half the family allowance to a father who shared joint custody of their children when he and his wife separated; the legislation provides that the allowance be paid to the mother except in excep­tional circumstances, of which Vincer's situation was not one. Stone J. rested his decision that the review committee is not a court of competent jurisdiction on the powers of the committee as set out in its governing legislation (it is limited to reviewing on appeal the refusal to pay an allowance and in doing so may confirm or vary the decision or rescind or amend it): "it signally lacks any power to grant a remedy under subsection 24(1) of the Charter". It appears not to have been given the power to determine questions of law, for his Lordship distinguished Zwa rich, supra, on the basis that umpires under the Unemployment Insurance Act are sitting or former judges who have been given the express power to determine questions of law. Marceau J. took a similar view. His Lordship referred to subsection 65(1) of the Immigration Act which states that "[t]he [Immigration Appeal] Board is a court of record" in order to distinguish Law, supra, from the facts before him in Vincer; it must be observed, however, that Mahoney J. did not refer to subsection 65(1) in his decision in Law, supra, except to cite it along with other sections, and rested his conclusion solely on subsection 59(1). Marceau J's concern appears to have been the nature of the review commit­tee, which has been granted limited powers and the members of which have no special qualifica­tions. His Lordship described the review committee as "a simple ad hoc committee whose role is to oversee, in a particular case, the administrative process involved in the scheme adopted by Parlia­ment for the awarding of family allowances".

28. The weight of authority appears to lean in favour of a tribunal such as the Board being considered "a court of competent jurisdiction" within the meaning of subsection 24(1) of the Char­ter. Nevertheless, although we may find judgments of other provincial and federal courts and tribu­nals of assistance, we are, of course, not bound by them and would be required to reject them should the courts of this province take a different view. We are, needless to say, bound by the Ontario Divisional Court. Accordingly, we consider in some detail employer counsel's contention that the Divisional Court has taken the position that tribunals are not courts of competent jurisdic­tion.

29. Counsel referred us to Ontario Public Service Employees' Union v. Algonquin College of Applied Arts and Technology (unreported decision of the Divisional Court, April 16, 1987) and to The Greater Niagara Transit Commission v. The Amalgamated Transit Union and Its Local 1582 (Niagara Falls) (1987), 1987 CanLII 4267 (ON HCJ), 61 O.R. (2d) 565 (Div. Ct.), as authority for the proposition that the law in Ontario is that quasi-judicial administrative tribunals such as the Board are not courts of compe­tent jurisdiction under subsection 24(1) of the Charter. Neither of those cases actually deals with a tribunal such as the Ontario Labour Relations Board. Furthermore, the applicability of the Divi­sional Court's view in Algonquin College, supra, has been cast in doubt by the Court of Appeal (unreported dismissal of application for leave to appeal, June 29, 1987).

30. In Algonquin College, supra, the Divisional Court found in obiter that a board of arbi­tration is not a court of competent jurisdiction; its decision, however, does not seem to be limited to arbitration boards appointed under a collective agreement:

.In our view, it is clear that only a Court, in the traditional sense, can qualify as a'court of competent jurisdiction' provided it is empowered with the requisite jurisdiction and authority referred to in Mills[,supra]. See the comments of McIntyre J. at pages 171-174 and 177.

ITihe general power of arbitrators to interpret legislation necessarily incidental to the perfor­mance of the task assigned does not extend to the interpretation of constitutional enactments. Where such an issue arises, or is seen as arising, in a matter before a lay tribunal, the appropri­ate course to be followed is that an application be made to a court of competent jurisdiction for a decision on the constitutional question so that the arbitrator may perform its assigned task armed with the court's opinion and advice.

With respect, it is not clear whether the Court is confining its remarks to board of arbitration appointed under a collective agreement or whether it is including all administrative and quasi-judi­cial tribunals within its comments. Since the courts, including the Ontario Divisional Court and judges of the Supreme Court Trial Division, have encouraged labour boards to consider and deter­mine division of powers issues which arise in matters otherwise properly before them, it is unlikely that the Divisional Court meant that labour boards do not have the power to interpret "constitu­tional enactments": Re Windsor Airline Limousine Services and Ontario Taxi Association 1688 et al (1980), 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Div. Ct.). Furthermore, the Supreme Court of Canada has indicated the considerable value of labour relations tribunals' dealing thoroughly with such issues: Northern v. Telecom Ltd. v. Communications Workers of Canada et al (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 (S.C.C.), at p. 19.It may be, therefore, that the Court did not intend to include such tribunals in its remarks. That it may be interpreted as having done so, however, is supported by the broad wording of the Court of Appeal's endorsement dismissing the union's application for leave to appeal the Divi­sional Court's decision, supra , which contains this paragraph following the dismissal:

In dismissing the application for leave to appeal we are not to be taken as agreeing with the Divisional Court that only a court in the traditional sense of that word can interpret the Charter, or any other constitutional enactment.

31. Counsel for Cuddy Chicks submits that the effect of the Court of Appeal's endorsement is to make the law in Ontario that as stated in the Divisional Court's decision. We are of the view that if the Court of Appeal had been satisfied that that reflected the appropriate statement of the law, it would not have taken the unusual step of adding a paragraph to its usual one line endorse­ment dismissing the application for leave to appeal. The endorsement does not, of course, tell us what the law on this matter is, but it is sufficient to indicate that the issue remains open. Accord­ingly, even if the Divisional Court had intended to include tribunals such as the Ontario Labour Relations Board in its obiter, and that is, in our respectful opinion, far from clear, we are satisfied that we are not obliged by the Divisional Court's decision in Algonquin College, supra, to conclude that we do not have jurisdiction under subsection 24(1) of the Charter.

32. At the outset of his argument on the agricultural issue, counsel for Cuddy Chicks gave us a decision of the Divisional Court which had been released after the conclusion of argument on the issue of whether we have jurisdiction to hear the Charter challenge: The Board of Governors of St. Lawrence College of Applied Arts and Technology v. Ontario Public Service Employees Union (unreported decision of the Divisional Court, April 13, 1988). The Divisional Court in that case followed its decision in Algonquin College, supra, and did not refer to the Court of Appeal's endorsement in that case, although, as counsel submitted it must be taken to have been aware of it. With respect, given the brevity of the endorsement, we do not find any greater assistance on this issue in this case than from the Algonquin College case, supra, which we have considered above.

33. A board of arbitration appointed under a collective agreement was also at issue in the Niagara Transit Commission case, supra, released after the Court of Appeal's endorsement in Algonquin College, supra, to which the Court in Niagara Transit Commission makes no reference.

An employee of the Commission had been charged with theft of money from fare boxes; the Com­mission deferred to the criminal proceedings instead of taking immediate action against the employee. At the trial, the judge had refused to admit into evidence under subsection 24(2) of the Charter a statement made by the employee because it followed, in the judge's finding, a contraven­tion of the employee's right to retain and instruct counsel under section 10(b) of the Charter. After the employee's acquittal, the Commission discharged him and the union grieved the discharge. At the arbitration, the Commission sought to introduce the statement which the trial judge had excluded. The board of arbitration refused to admit the statement because its exclusion by the trial judge constituted a "ruling of a court of competent jurisdiction as to the infringement of section 10(b) of the Charter" and "[t]here is no reason, and probably no power in this Board of Arbitra­tion, to come to an opposite conclusion". The board of arbitration also said that "[e]ven if the employer relied upon [the evidence] when the matter comes before a Board of Arbitration [and it cannot because it has been excluded by a court of competent jurisdiction] the Board is bound to apply the provisions of section 24 dealing with the enforcement of guaranteed rights and freedoms and cannot rely upon such evidence". Watt J. for the Divisional Court held that the board of arbi­tration had erred in failing to admit the evidence; in particular, his Lordship pointed out that a determination that evidence is to be excluded applies only to the proceeding in which it is ten­dered; thus the standard of proof applicable to the proceeding is a relevant factor and, of course, the standards of proof are different in criminal and grievance proceedings.

34. On the specific issue before us, Mr. Justice Watt said the following:

It has further not been here submitted that the Arbitration Board, suo motu, could exclude the proposed evidence under s-s.24(2) of the Charter. The Board did not purport to do so. In order to so hold it would, of course, first be necessary for the Board to be "a court of competent juris­diction" within s-s.24(1) so that it could make the express finding of constitutional infringement or denial which is a condition precedent to the grant of the evidentiary relief under s-s.24(2). On a plain reading of the whole section 24, most especially in light of the legal right said to have been here infringed, s-s. 10(b), such a conclusion, in my respectful view, is, quite simply, unten­able. See generally, Re Trumbley et al and Fleming et al and three other appeals, (1986), 1986 CanLII 146 (ON CA), 55 OR. (2d) 570 (C.A.).

In Re Trumbley, supra, the Court of Appeal was concerned with whether a police disciplinary tri­bunal is an independent and impartial tribunal within the meaning of section 11(d) of the Charter. The Court of Appeal, considering that section 11 refers to an "offence" and that police officers subject to disciplinary proceedings have not been charged with an "offence" within the meaning of that section, held that section 11 could not have any application to the police disciplinary tribunal. Furthermore, said the Court, "a police discipline matter is a purely administrative process" with respect to employment matters which would otherwise be dealt with through the collective agree­ment. (Re Trumbley, supra, has been upheld by the Supreme Court of Canada in a decision released November 19, 1987.) Watt J.'s reliance on Re Trumbley, supra, suggests that the follow­ing analysis applies in the circumstances of the Niagara Transit case, supra: section 10 of the Char­ter applies to persons "on arrest or detention"; the employee of the Transit Commission was not under "arrest or detention" with respect to the grievance proceeding; nor does the board of arbi­tration have the jurisdiction to grant a remedy resulting from a contravention of section 10 because it applies to criminal matters in which the board of arbitration has no jurisdiction. Accordingly, it is not a court of competent jurisdiction under subsection 24(1) of the Charter with the power to exclude evidence as a result of a contravention of section 10 of the Charter. In brief, the board of arbitration, because of the particular nature of the provision involved and its limited jurisdiction, did not have authority to grant the remedy in question.

35. Counsel for Cuddy Chicks advanced policy reasons supporting the inappropriateness of the Board's entertaining Charter applications in the course of applications and complaints filed with it. Counsel made it clear that these considerations are not intended to convince us not to exer­cise a jurisdiction we legally have, but rather are considerations intended to bolster his position that we do not have that jurisdiction.

36. Counsel maintained that the Board's expertise is not in constitutional law, but in labour law. It is, of course, correct to say that the Board's expertise is in labour law; that is why it is par­ticularly appropriate for the Board to deal with Charter matters arising during the course of labour related applications and complaints, as it does with division of powers issues. It is peculiarly within the Board's area of expertise to apply labour relations considerations that arise both in the chal­lenge to a provision of the Act and in any section 1 defence that might be advanced. The Board's findings of fact on those issues and its analysis of relevant labour relations policy should be of assis­tance to a court which is asked to consider the question on judicial review.

37. Counsel further maintained that Charter cases are different than division of powers cases in the sense that the Charter regulates government and it should therefore be applied by a separate judiciary and not by the Board, a part of the executive branch of government. The view that Charter issues should be dealt with by a separate judiciary (we assume by this counsel means the "traditional courts") was raised by Marceau I. in Vincer, supra. Even so, his Lordship appeared to believe that certain tribunals could have the authority to determine whether provisions of legislation conformed to the Charter. That view has not been clearly raised or developed in any other case of which we were made aware (except as has been indicated in the context of Algonquin College, supra and St. Lawrence College, supra) and we are not satisfied that the criteria for "a court of competent jurisdiction" set out in Mills, supra, necessarily require a distinction to be made between "traditional" courts and tribunals which are authorized to determine questions of law, are required to act judicially in so doing and which adjudicate a lis between the parties; furthermore, as already stated, the Court of Appeal's endorsement in Algonquin College, supra, makes it clear that the question remains open in Ontario. The Federal Court of Appeal and the British Columbia Court of Appeal have both held non-traditional courts to be "courts of competent jurisdiction under subsection 24(1) of the Charter: see Zwarich, supra, and Robinson, sup ra, and Moore, supra, respectively. In a recent decision, the Divisional Court has indicated the difficulties in distin­guishing "courts" from other decision-making bodies: in Re West End Construction Ltd. et al and Ministry of Labour for Ontario et al (1986), 1986 CanLII 2541 (ON HCJ), 57 O.R. (2d) 391, Anderson J. refers to "that twilight zone which divides the administrative from the judicial" (the Court held that a complaint under the Ontario Human Rights Code is a civil proceeding and therefore an action for the purposes of the Limitations Act). As was so in the case before the Human Rights Commission, a lis between the parties is involved in this application for certification and in other proceedings before the Board. Furthermore, the Board is authorized to determine questions of law and, as indicated, is required to act judicially in so doing.

38. In counsel's view, because of our status as a tribunal, we should abide by a presumption of constitutional validity of the provisions of the Ontario Labour Relations Act. The principle that a statute is presumed to be constitutionally valid applies in division of powers cases. With respect to the Board's assuming the constitutionality of an impugned provision in Charter cases, we refer to Manitoba (Attorney General) v. Metropolitan Stores Ltd. 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, in which Mr. Jus­tice Beetz, for the Court, stated at page 122 that "the innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the idea that a legislative provision can be presumed to be consistent with the Charter". (In that case, the Supreme Court set aside a stay of proceedings by the Manitoba Court of Appeal against the Manitoba Labour Board. The stay had been sought by an employer which had commenced proceedings in the Court of Queen's Bench to have the first contract provisions of the Manitoba Labour Relations Act declared invalid as contra­vening the Charter and wished to prevent the Manitoba Labour Board from proceeding in the first contract case in which the employer was a respondent.) That the presumption of constitutional validity principle (in this limited sense) does not apply in Charter cases in the same way as it applies in division of powers cases is implicit in section 52's declaration that the Constitution is the supreme law and in the imposition of the burden of proof on a party seeking to defend the impugned provision under section 1 of the Charter.

39. Finally, submitted counsel, Charter cases may involved considerable evidence and length of hearings for which the Board is not equipped and which may have to be repeated in court should the Attorney General, not having been represented in the hearing before the Board, seek to introduce evidence before the court on judicial review. We do not doubt that Charter cases may involve lengthy hearings; however, if the Board legally has jurisdiction to deal with Charter issues, it is not for the Board to abdicate that jurisdiction at the behest of one party simply because it may be faced with the prospect of long and complex hearings. In Mills, supra, La Forest J. commented at page 245 that "extending the ambit of the specific task assigned to the magistrate by the Code" would "unnecessarily complicate his task, require more evidence or at least a more thorough sift­ing of evidence than is required at a preliminary hearing, and in any event require the magistrate to look at the issues before him in a manner different from that contemplated by the Code". In the case of Charter issues brought before the Board in matters otherwise properly before the Board, in contrast, consideration of the Charter issues is simply another aspect integral to the Board's deter­mination of the case before it, rather than an extension of the task assigned to the Board by the Act.

40. These policy considerations were advanced, according to the employer's counsel, in order to help us "resolve the ambiguity in the case law: in our view, there is no such ambiguity. As the above analysis of the jurisprudence indicates, it is a question in relation to each court or tribu­nal or decision-making body whether it has jurisdiction over the persons, subject matter and authority to grant the remedy sought in the specific circumstances at issue. The cases which find that a particular adjudicative body has jurisdiction under subsection 24(1) of the Charter and those which do not so find can be distinguished on the basis of the powers of the particular forum in issue and of the nature of the remedy requested. For example, the powers of the review board in Vincer, supra, and of the arbitration board in Foothills Provincial General Hospital Board, supra are more limited than those of the umpire in Zwarich, supra, and Robinson, supra or of the arbitration board in Moore, supra. Similarly, the arbitration board in Niagara Transit Commission, supra, could not grant the remedy at issue while the arbitration board in Moore, supra, could - and, it should be emphasized with respect to Moore, supra, that the court could not grant the remedy or, indeed, entertain the grievance as could the board of arbitration.

41. The starting point for determining whether the Board is "a court of competent jurisdic­tion" is its authority as granted by the Labour Relations Act. The Board's jurisdiction, prior to and independently of the Charter, is found in sections 106(1) and 108 of the Act:

106.(1) 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, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

108. 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 judgement, certiorari, mandamus, prohibi­tion, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

Together these sections give the Board exclusive jurisdiction to deal with all matters arising under the Act, including the power to deal with matters of law arising in matters properly before the Board.

42. In determining Charter matters, the Board is involved not only in interpreting the Char­ter, a constitutional document, but also in making determinations of fact and in interpreting its home statute. The Board's decisions on non-jurisdictional matters are protected on judicial review by section 108 of the Act, the "privative clause"; that is not the case with matters the courts have determined or do determine go to the Board's jurisdiction: CUPE v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227. The Board cannot give itself jurisdiction through a wrong deci­sion or through the application of its own rules: R. v. Ontario Labour Relations Board, Ex pane Dunn (1963), 1963 CanLII 616 (ON HCJ), 39 D.L.R. (2d) 346. It nevertheless remains that the Board has sole jurisdiction to deal with the matters set out in the Ontario Labour Relations Act and that the courts do not have jurisdiction to do so (cf. Moore, supra). Prior to the Charter, the Board, and not the courts, was competent to hear and determine, for example, allegations of unfair labour practices, sale of busi­ness applications, unlawful strikes and lock-outs and applications of the sort before us in this case: applications for certification. That competence remains: the Board has jurisdiction over those sub­ject matters and over the persons before the Board on such applications and complaints, and can grant remedies in relation thereto where it finds a violation of the Act or in the case of certification applications, when the applicant establishes the elements which entitle it to be certified. Thus where Charter issues arise and the remedy requested is one which the Board can already grant, "considerations of convenience, economy and time" indicate that the Board has jurisdiction to and should entertain those Charter issues (see Mills, supra, and Rahey, supra). Employer's counsel contends that the Board is not given the power in the Act to declare the Act or any provision of it invalid; that, of course, is the case; in addition, the power to make a declaration of invalidity rests with the superior courts. However, a finding that a provision is inconsistent with the Charter on the basis that the provision is of no force or effect does not constitute a declaration, but is "a decision of a legal question properly before the court": Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A), per Macfarlane J.A., for the majority; also see Zwarich, supra, and Moore, supra. We conclude, therefore, that the Ontario Labour Relations Board may be a court of compe­tent jurisdiction within the meaning of subsection 24(1) of the Charter.

43. In this case, however, it is argued that we do not have jurisdiction because we do not have jurisdiction over the persons or subject matter of the application if we were to find that the employees who are the subject of the certification application are employed in agriculture. It is obvious that the Board cannot, absent the Charter, certify the union as the exclusive bargaining agent of employees who are employed in agriculture, since the Act does not apply to such employ­ees. It does, however, have jurisdiction to entertain the application for certification and to consider and determine whether the affected employees are employed in agriculture. Prior to the Charter, once the Board found that the employees were employed in agriculture, it dismissed the applica­tion for certification: see, for example, Wellington Mushroom Farm, supra. The question before us is whether, when the applicant has challenged the exemption under the Charter, the Board is required to dismiss the application and the applicant compelled, if it wishes to pursue the matter, to make an application to the Supreme Court of Ontario for a declaration that the exemption con­travenes the Charter and, if it is successful, to then return to the Board with the declaration of invalidity in hand requesting the Board to hear the application for certification? Clearly the supe­rior court can make the declaration, should it consider it appropriate to do so, but it cannot con­sider the applicant's application for certification; in short, it cannot grant the remedy actually sought by the union. This was the case in Moore, supra; there the British Columbia Court of Appeal pointed out that "[a] declaration by the court on the question could produce no better result than a finding by the arbitrator, and would be an unwarranted interference by the court in a labour relations matter~~ since Just and appropriate relief can be granted by another tribunal".

44. It is, of course, the union which makes the Charter application, not the employees themselves. The union is acting, in the broad sense of the term, as the "agent" of the employees who have shown an interest in being represented by it. Under the scheme of the Act, employees may select their bargaining agent by signing applications for membership in the union before the hearing into the certification application, they may, in certain circumstances, express their choice in a vote directed by the Board after the application has been heard, they may object at the hear­ing to being represented by the union making the application, they may subsequently seek to ter­minate the union's status as their bargaining agent, they may participate when another union seeks a declaration that it has become the successor the union representing them: but they cannot them­selves make an application for certification. Only a union has status to seek certification as the exclusive bargaining agent of the employees; those employees do not have status to make an appli­cation to certify the union as their bargaining agent. In this case, the union can evidence the sup­port in the form of applications for membership and payment by each such employee of $1.00 of over 55% of the full-time employees whom it has sought to organize. It has chosen to represent the employees by seeking certification before the Board, including raising its Charter argument in response to the employer's objection to its certification. In our view, section 52 of the Charter requires the Board to satisfy itself that section 2(b) of the Act is not inconsistent with the Charter before it applies it. The Board has the authority "to determine all questions of fact or law that arise in any matter before it"; this application is at this point properly before us and as part of the appli­cation there has arisen the factual and legal question of whether the exemption which may serve to bar the union's certification, regardless of whether it enjoys sufficient support for certification, is constitutional.

45. Section 52 of the Charter imposes on the Board an obligation to apply the Ontario Labour Relations Act in a manner consistent with the requirements of the Charter, as was made clear by the Chief Justice in R. v. Big M Drug Mart Ltd.,1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at page 353:

If a court or tribunal finds any statute to be inconsistent with the Constitution, the overriding effect of the Constitution Act, 1982, s.52(1), is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer "of force or effect".

[emphasis added]

The underlying legal and policy justifications for its assumption of jurisdiction under section 52 from the Board's perspective were set out in Third Dimension, supra. We agree that the Board is required to interpret the Labour Relations Act in a manner that is consistent with the requirements of the Constitution. In the course of considering applications and complaints before it, the Board must take into account the effect of the Charter, where it is raised by one of the parties before it: Moore, supra, Zwarich, supra. If we were to refuse to entertain the applicant's Charter application on the ground that, having found these employees to be employed in agriculture, we no longer have jurisdiction over the persons or subject matter before us, we would be remiss in our obliga­tion to ensure that the law we are applying is consistent with the supreme law of Canada.

46. Having considered the case law and the policy reasons advanced by counsel, we con­tinue the approach set out in Third Dimension, supra, and the cases following it, of entertaining Charter issues arising in applications and complaints brought under the Act. Given the jurisdiction "to determine all questions of ... law that arise in any matter before it", the Board is required to consider those questions in light of the Charter's constitutional supremacy over all other laws, including the Ontario Labour Relations Act. With respect to subsection 24(1), we are satisfied for the reasons given above that the Board constitutes "a court of competent jurisdiction" with respect to matters properly before it. We do not consider this an appropriate case in which the "presump­tion" (as that term takes its meaning from Mills, supra, and Rahey, supra) in favour of the forum in which the matter would normally proceed should be displaced: the union's application for certifi­cation is properly before us, as are the union and the employer; we have the authority to grant cer­tification, the remedy sought by the union. The employer objects to the application on the basis of section 2(b) of the Act; the validity of section 2(b) has been brought into issue by the union and in our view, we could not lawfully dismiss this application on that basis until we had determined that the agricultural exemption is consistent with the Constitution.

47. This matter is directed to the Registrar to set dates for this panel to hear evidence and argument on the union's Charter challenge to section 2(b) of the Act.

DECISION OF BOARD MEMBER JAMES A. RONSON; May 6, 1988

1. As stated in the decision of Vice-Chair Hughes and Board Member Montague, we are unanimously of the view that the employees for whom the Applicant Union seeks bargaining rights are "persons employed in agriculture" within the meaning of section 2(b) of the Labour Relations Act ("the Act"). Normally that finding would terminate these proceedings, but the Applicant Union has asked the Board to declare that section 2(b) of the Act contravenes the Canadian Char­ter of Rights and Freedoms ("the Charter"). It will argue that the Board should strike section 2(b) from the Act. Section 2(b) reads as follows:

2. This Act does not apply,

(b) to a person employed in agriculture, hunting or trapping

2. By its own motion the Respondent Employer submits that the Board has no jurisdiction or authority to declare that section 2(b) of the Act "has no force or effect" (section 52(1) of the Charter). More specifically the Employer submits that the Board is not a "court of competent jurisdiction" (section 24(1) of the Charter), from whom the Union may obtain an order striking section 2(b) from the Act. It is this narrow question of jurisdiction that concerns the Board in this decision.

3. It is trite to say that the Board is a creature of statute deriving its authority only from the express provisions of the Act. If the provisions of the Act give the Board jurisdiction (a) over the person; (b) over the subject matter; and (c) to grant the necessary remedy; then the Board is a "court of competent jurisdiction" for the purposes of the Charter. [Lamer J. - Rahey v. The Queen (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d), 289 (S.C.C.)]

4. Given the interpretation of the words "court of competent jurisdiction" by the Supreme Court of Canada, it is possible for the Board to be a "court of competent :iurisdiction" with respect to a particular section of its governing statute, but not to have the necessary jurisdiction to be a "court of competent jurisdiction" over the subject matter mentioned in another section.

5. Put another way, the issue before us is not simply whether the Board is a "court of com­petent jurisdiction". In many instances the Board is a "court of competent jurisdiction" because the Act gives it jurisdiction over the person, the subject matter and the remedy. For example, the Board is a "court of competent jurisdiction" to hold that the reverse onus provisions in the Act do not contravene the Constitution of Canada. That is so because the legislature has given the Board the express authority to interpret the meaning and effect of those provisions. The narrower issue, the one before the Board in this motion, is whether the Legislature has constituted the Board as a "court of competent jurisdiction" to declare that section 2(b) of the Act contravenes the Constitu­tion of Canada.

6. In section 2 of the Act the legislature tells the Board that it has no authority to apply the provisions of the Act to the labour relations between employers and employees engaged in agricul­ture. We may not like that restriction. In some cases before the Board, the hearing panel has indi­cated its displeasure with the situation. Nevertheless, in its wisdom, the Legislature has seen fit to retain the exclusion both after those Board decisions and the enactment of the Charter. The Legis­lature has continued to reserve to itself the social policy considerations pertaining to employment in the agricultural sector.

7. The Union is forced to shelter under the provisions of the Act when it seeks to ask the Board to declare that section 2(b) is unconstitutional. That very section tells the Board that the Act does not apply when the subject matter is persons "employed in agriculture". When the sub­ject matter is agriculture the Legislature has said that the Board cannot use section 106(1) and sec­tion 108 of the Act to give itself jurisdiction and obligate itself to apply section 52 of the Charter. As a result the Board is without jurisdiction to strike down section 2(b) and is not a "court of com­petent jurisdiction" from whom the Union may seek the remedy under the Charter. It must seek another forum to claim its remedy.

8. I would grant the motion of the Employer and dismiss the application to strike section

2(b) from the Act.