International Union of Operating Engineers, Local 793 v. Arlington Crane Service Limited, 1988 CanLII 3791

[1988] OLRB Rep. December 1187

2864-85-M International Union of Operating Engineers, Local 793, Applicant v. Arlington Crane Service Limited, Respondent v. Operating Engineers Employer Bargaining Agency, Intervener

BEFORE: Harry Freedman, Vice-Chair, and Board Members F. W. Murray and D. A. Patterson.

APPEARANCES: Bernard Fishbein, Jack Slaughter, Joseph Kennedy and E. A. Ford for the appli-cant; Thomas A. Stefanik, Lynn Bevan and Dorothy Foran for the respondent; Pamela Yudcovitch and Jim Thomson for the intervener; Valerie Lawson on behalf of the Attorney General of Ontario.

DECISION OF THE BOARD; December 19, 1988

1. In this arbitration proceeding before the Board, counsel for the respondent raised the Canadian Charter of Rights and Freedoms as a defence to the allegation that the respondent vio-lated the collective agreement between the Operating Engineers Employee Bargaining Agency and the Operating Engineers Employer Bargaining Agency. While the grievance claims that the respondent violated several provisions of that collective agreement, counsel for the applicant advised the Board that the applicant sought relief only in respect of a violation of article 3 of that collective agreement.

2. Article 3 of the collective agreement is entitled "union security" and contains various sections which require, among other things, that the respondent hire and employ members of the applicant, deduct and remit dues to the applicant, and engage sub-contractors who are in contrac-tual relations with the applicant. The respondent claimed that article 3 of the collective agreement infringed several of the respondent's rights under the Charter and therefore was of no force or effect.

3. The parties agreed to the manner in which the Board should deal with the Charter defence raised by the respondent. The Board in paragraph 2 of its decision in this matter dated January 19, 1987 wrote:

"The respondent takes the position that the relevant provision of the collective agreement is void by reason of it being contrary to the Canadian Charter of Rights and Freedoms. Counsel for the applicant takes the position that the Canadian Charter of Rights and Freedoms has no appli-cation to this issue. The parties agree that the preliminary issue of whether the relevant provi-sion of the collective agreement is subject to the Canadian Charter of Rights and Freedoms should be dealt with by the Board first

4. When the hearing in this matter reconvened, counsel for the applicant submitted that the respondent was bound to the collective agreement by reason of its membership in the Crane Rental Association of Ontario, a constituent element or member of the Operating Engineers Employer Bargaining Agency. Counsel submitted that the respondent's membership in an employers' organization that was part of the Operating Engineers Employer Bargaining Agency created the contractual obligation that bound the respondent to the collective agreement negotiated by the Operating Engineers Employer Bargaining Agency on behalf of members of its constituent organi-zations as well as on behalf of those employers who were not members of those organizations, but who were represented in collective bargaining by the Operating Engineers Employer Bargaining Agency as a result of the operation of section 143 of the Labour Relations Act and the designation made by the Minister of Labour pursuant to section 139(1)(b) of the Act. Counsel argued that those provisions of the Act which mandate the Operating Engineers Employer Bargaining Agency to represent employers who are not members of any of the employers' organizations that comprise the Operating Engineers Employer Bargaining Agency are simply irrelevant to this proceeding.

5. Counsel also contended that the collective agreement before us in this proceeding applies to all sectors of the construction industry and is not restricted to the industrial, commercial and institutional sector. The grievance before the Board in this proceeding is also not restricted to work done by the respondent in the industrial, commercial and institutional sector of the construc-tion industry, but rather relates to all sectors of that industry. Counsel submitted that the respon-dent was bound by that collective agreement in respect of work outside of the industrial, commer-cial and institutional sector in the same way that it was bound by the collective agreement in respect of that sector, that is, by virtue of its membership in the Crane Rental Association of Ontario. Counsel therefore submitted that the Charter simply has no relevance whatever to the collective agreement in respect of the respondent since the respondent was bound to the collective agreement by reason of private contractual obligations arising out of membership in an employers' organization that bargained with the applicant on behalf of the respondent and not by reason of legislation.

6. The Board received evidence from Ernest Ford, the Labour Relations Manager of the applicant from January 1, 1971 to June 1, 1987 and from Jack Redshaw, a business agent with the applicant for twenty years until July 31, 1986. Mr. Redshaw was the applicant's business agent in the Hamilton area for approximately thirteen years and was quite familiar with the respondent and its operations.

7. Both Mr. Ford and Mr. Redshaw testified that the Crane Rental Association of Ontario had represented the respondent in collective bargaining for a number of years. Mr. Ford identified documents that the applicant received from the Crane Rental Association of Ontario which stated that the respondent or its predecessor was a member of the Crane Rental Association of Ontario as far back as September, 1975. Mr. Redshaw testified that he had negotiated directly with the respondent many years ago, and both Mr. Redshaw and Mr. Ford testified that more recently, the Crane Rental Association of Ontario negotiated on behalf of the respondent. Both Mr. Ford and Mr. Redshaw also testified that the applicant had not received any communications from either the respondent or the Crane Rental Association of Ontario advising that the respondent was no longer a member of the Crane Rental Association of Ontario or that the Crane Rental Association of Ontario had ceased to represent the respondent in collective bargaining.

8. Mr. Redshaw was not aware that the respondent denied being a member of the Crane Rental Association of Ontario. Both Mr. Redshaw and Mr. Ford had been involved in numerous prior Board proceedings between these parties where the issue of whether the respondent was bound to the collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency, or its predecessor collective agree-ments between the applicant and the Crane Rental Association of Ontario were dealt with by the Board.

9. There have been several earlier proceedings before the Board involving these two par-

ties where the applicant alleged that the respondent violated the collective agreement. In Board File No. 1652-76-M, decision dated June 15, 1977, the Board recorded the following agreed fact:

"The facts which form the background to this grievance are not in dispute.... The applicant and the respondent are covered by a collective agreement between the applicant and the Crane Rental Association of Ontario, which commenced on May 1, 1975 and which expired on April

30, 1977."

In Board File No. 0729-77-M, decision dated September 2, 1977, the Board stated:

having regard to the admission by the respondent Arlington Crane Service Limited at the hearing of the instant grievance that any terms and conditions of employment of its employees were governed by the collective agreement between the Crane Rental Association of Ontario and the applicant dated September 5, 1975, and that it continued to deal with its employees out-side of the collective agreement under the scheme described in the Board's decision of June 15, 1977 from the date of that decision to the date of the hearing of the instant grievance, the Board finds as follows:

1. That the respondent Arlington Crane Service Limited has at all material times been bound by the terms of the said collective agreement."

In Board File No. 0786-81-M, decision dated, August 28, 1981, the Board made the following determination based on the agreement of the parties:

"Having regard to the foregoing, to the representations before it and pursuant to the provisions of section 112a of the Act, the Board makes the following determination:

1. The International Union of Operating Engineers, Local 793, and Arlington Crane Service Limited are bound by a collective agreement between the Operating Engineers Employee Bargaining Agency and the Operating Engineers Employer Bargaining Agency. This collective agreement is in effect from May 1, 1980, until April 30, 1982."

In Board File No. 0338-82-M, decision dated June 21, 1982 the Board dealt with a grievance alleg-ing a violation of article 3 of a predecessor to the collective agreement before us in this proceeding. In the course of finding a violation of that collective agreement, the Board wrote:

The parties advised that that part of the grievance alleging that the respondent employer has failed to remit regular monthly dues, working dues, training fund, pension and benefit and labour relations fund contributions on behalf of all employees covered by the collective agree-ment has been settled between the parties. The issue to be determined is whether the respon-dent employer has hired an apprentice contrary to article 3.1(a).

The facts in this matter are as follows:

• Both parties to this application are bound by the terms of the province-wide collective agreement entered into by the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency on May 7, 1980."

In Board File Nos. 2222-82-M and 2509-82-M, decision dated March 25, 1983, the Board recorded the following agreed fact:

~'The parties to the above Referrals of Grievance to Arbitration pursuant to Section 124 of the Labour Relations Act, each agree with the other, as to the following facts. The parties agree to call no further evidence and make argument and representations to the Board on these agreed facts. The parties further agree that the Board remain seized with the issue of damages, if any, and the parties are free to call whatever evidence they feel appropriate on the damages issue, if necessary.

1. Arlington Crane Service Ltd. ('Arlington') acknowledges that it is bound to the provincial collective agreement between Operating Engineers Employer Bargaining Agency and Operat-ing Engineers Employee Bargaining Agency, effective July 5, 1982 until April 30, 1984 ('the col-lective agreement')."

In Board File No. 1959-83-M, decision dated March 5, 1984 the Board wrote:

"There was no dispute that the applicant and the respondent are bound by the provincial collec-tive agreement effective from May 1, 1982, until April 30, 1984, between the Operating Engi-neers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency. The grievance in this referral involves the interpretation and application of article 3.4.

10. Mr. Stefanik, counsel for the respondent on this issue, did not contest that the respon-dent was bound by the collective agreement as a matter of statute. Indeed, the respondent relies on that as the basis for asserting that the collective agreement is subject to the Charter. Counsel argued that there was no direct admissible evidence establishing that the respondent was a member of the Crane Rental Association of Ontario at the times relevant to this proceeding. All of the prior Board decisions which found that the respondent was bound by the collective agreement did not articulate the grounds for that finding. Counsel submitted that an employer may be bound by the collective agreement through various means, and not necessarily because an employer is a member of an employer's organization.

11. We are satisfied that the respondent was, at all material times, bound by the collective agreement in respect of all sectors of the construction industry. We accept that there was not any direct evidence as to whether the respondent was actually a member of the Crane Rental Associa-tion of Ontario. The lists supplied to the applicant by the Crane Rental Association of Ontario were hearsay evidence with respect to the fact of membership. Those lists were admitted to estab-lish, pursuant to section 51(2) of the Act, that the Crane Rental Association of Ontario bargained on behalf of the respondent. The direct evidence of Mr. Redshaw and Mr. Ford and the findings set out in the previous Board decisions between these parties satisfies us that the Crane Rental Association of Ontario bargained on behalf of the respondent and that the respondent accepted that situation until sometime after the grievance before us was referred to arbitration. Thus, while there was no direct evidence to establish that the respondent was a member of the Crane Rental Association of Ontario, the evidence that the respondent was bound by collective agreement between the applicant and the Crane Rental Association of Ontario and the evidence that the Crane Rental Association of Ontario represented the respondent in collective bargaining causes us to conclude that it is more probable than not that the respondent was a member of the Crane Rental Association of Ontario. We are reinforced in our conclusion on this issue by the respon-dent's failure to call any evidence to deny that it was a member of the Crane Rental Association of Ontario. In the result, we are satisfied that section 51 of the Act operated to bind the respondent to the collective agreement at all material times. See Paul D'Auost Construction, [1976] OLRB Rep. Sept. 529; Great Lakes Fabricating, [1982] OLRB Rep. June 872; London Sandblasting & Painting Limited, [1982] OLRB Rep. Sept. 1322; Twin Electric, [1984] OLRB Rep. Feb. 393; David Yan Construction Limited, [1984] OLRB Rep. May 715.

12. Apart from section 51 of the Act, it is also clear that the respondent was bound by the collective agreement in respect of the industrial, commercial and institutional sector of the con-struction industry by virtue of section 143 of the Act and the Ministerial designation made under section 139(1)(b) of the Act dated March 31, 1978. It is uncontested that the applicant holds bar-gaining rights for employees of the respondent. We accept that the respondent did not actually negotiate or sign the collective agreement with the applicant. Rather, the collective agreement which is the subject of this dispute is binding upon the respondent by operation of section 143, insofar as the collective agreement applies to industrial, commercial and institutional sector. Coun-sel for the respondent submits that as there is a legislative foundation upon which the applicant bases its assertion that the respondent is bound to the collective agreement, that also creates the basis for asserting that the collective agreement is void by reason that it is contrary to the Charter.

13. Ms. Bevan, counsel for the respondent on this issue, reviewed the provincial bargaining provisions of the Act in detail in support of her submissions that the collective agreement was sub-ject to Charter scrutiny. Her analysis of the legislation began with the proposition that the collec-tive agreement to which the respondent is subject was only binding on the respondent by operation of statute and therefore was subject to the Charter. She pointed out that the Minister of Labour designated who will be parties to the collective agreement, their collective bargaining is mandated by statute and is enforced through the statutory dispute resolution processes created under the Act. She argued that the collective agreement is so inextricably tied to the legislation that the col-lective agreement in this case is subject to Charter review in the same way that the legislation is subject to Charter review.

14. While much of counsel's argument dealt with the legislative scheme established by the province-wide bargaining provisions of the Act which, without doubt, must conform with the Char-ter in order to be effective, the issue the parties put before the Board was not the constitutionality of the legislation, but rather whether article 3 of the collective agreement was subject to the Char-ter. The nature of the specific issue which the parties agreed to address was explicitly set out in the Board's earlier decision in this matter, quoted in paragraph 3 above and in paragraph 3 of that decision where the Board again stated:

"The parties agree that the Board should determine as a preliminary matter the issue of whether the relevant provision of the collective agreement is subject to the Charter."

Subsequent to that decision, counsel for the respondent in a letter to the solicitors for the applicant dated June 3, 1987 wrote:

"The Respondent denies that the contents of Article 3 of the collective agreement are a matter of private contract between the parties. The Respondent intends to rely upon sections 117,118, 137, 138, 139, 142, 143, 145 and 146 of the Labour Relations Act.

In the alternative, should it be found that the contents of Article 3 of the collective agreement are a private contract, the respondent states that such contract by its nature in any event is sub-ject to the Charter."

Counsel for the respondent in a letter of June 11, 1987 to the solicitors for the applicant also wrote:

"It is my understanding that at the hearing on June 29 and 30, 1987 the parties would be arguing the issue of whether the relevant provision of the collective agreement is subject to the Cana-dian Charter of Rights and Freedoms, and only that issue."

Thus, the Board is required to determine whether article 3 of the collective agreement is subject to the Charter, or to put it another way, whether the respondent can rely on the Charter to challenge the validity of article 3 of the collective agreement. We emphasize that the respondent did not in this proceeding before the Board challenge the constitutional validity of the various provisions of the Labour Relations Act which bound the respondent to the collective agreement.

15. The rights and protections afforded to individuals and persons in our society by the Charter do not apply to all relationships that exist between or among the members of Canadian society. Rather, the Charter's application is limited by section 32(1) which provides:

"This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the

Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province."

The limits of the Charter's application are also made clear by section 52(1) of the Charter which provides:

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

16. The combination of sections 32(1) and 52(1) of the Charter establishes that the Charter applies to the activities carried on by government but does not apply to the activity of persons or entities that are not a manifestation of government. Where, however, there is a legislative founda-tion for the action of a person or entity that is not a part of government, whether the Charter applies is open to question.

17. In Blainey v. Ontario Hockey Association, (1986), 1986 CanLII 145 (ON CA), 54 O.R. (2d) 513, the Ontario Court of Appeal determined that a provision of the Ontario Human Rights Code which permitted dis-crimination on the basis of sex in respect of participation in athletic activities or membership in an athletic organization was contrary to the Charter. In that case membership in the athletic organiza-tion was restricted to males by reason of the organization's by-laws. The issue before the Court of Appeal as characterized by the majority, Finlayson, J.A. dissenting, was whether the relevant pro-vision of the Ontario Human Rights Code and not the by-law of the athletic organization was con-trary to the Charter. The majority of the Court nevertheless did receive and dispose of the argu-ments that the organization's by-laws were subject to Charter scrutiny by reason of the application of the Charter itself, or alternatively, by reason of the nature of the organization. The Court of Appeal at 521-22 adopted the following passage from Professor Swinton's article in Tarnopolsky and Beaudoin, The Canadian Charter of Rights and Freedoms Commentary 1982 at 44-45:

"The automatic response to a suggestion that the Charter can apply to private activity, without connection to government, will be that a Charter of Rights is designed to bind governments, not private actors. That is the nature of a constitutional document; to establish the scope of govern-mental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of a Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between indi-viduals are left to the regulation of human rights codes, other statutes, and common law reme-dies, such as libel and slander laws. Furthermore, s. 32(1) specifically states that the Charter applies to 'the Parliament and government of Canada in respect of all matters within the author-ity of Parliament' (emphasis added). It is governmental action which is caught, not private action."

18. That Court also rejected the argument that the association was acting as an arm of gov-ernment. The Court of Appeal wrote at 522-23:

"In the alternative, it was submitted by counsel for the appellant and for the Canadian Associa-tion for the Advancement of Women and Sport that the C.A.H.A. and the O.H.A. were agents of the Government of Canada, and their rules could be regarded as acts done pursuant to pow-ers granted by law. In that respect, the comment made by Dickson J. in Operation Dismantle Inc. et al. v. The Queen et al., 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at p. 459, 18 D.L.R. (4th) 481 at p. 494, 13 C.R.R. 287, is also germane:

I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to 'laws' in s. 52 of the Charter is confined to statutes, reg-ulations and the common law. It may well be that if the supremacy of the Constitution expressed in s. 52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s. 52.

However, assuming that there can exist a relationship between 'government' and private citizens and organizations so that the actions of the citizen or organization can be considered 'actions of government' for the purposes of the Charter, in my opinion no such nexus has been established in this case. The only relationship that has been established between the Government of Canada and the C.A.H.A. and the O.H.A. is that they receive grants from the federal government under the Fitness and Amateur Sport Act, R.S.C. 1970, c. F-25. They also receive grants from various municipalities. There has been no delegation of power by Parliament or the Legislature to the C.A.H.A. or the O.H.A., nor have they been granted any powers by governments.

On the record before this Court, neither the CAHA. nor the OHA. in conducting their activities can in any way be said to be doing so as some form of governmental agency or exercis-ing a governmental function. I agree with the following comment made by Steele J. at p. 231

OR., p. 605 D.L.R.:

This does not make the CAHA. or the O.H.A. governmental agencies. To hold otherwise would mean that all industries, charities and other organizations that receive government grants are performing government functions and are subject to the Charter. This is not the intent of s. 32 of the Charter."

19. The proper application of the Charter was also addressed by the Ontario Court of Appeal in McKinney v. University of Guelph, (1987), 1987 CanLII 179 (ON CA), 63 O.R. (2d) 1. The majority of the Court discussed the scope of the Charter's role at page 17:

"What the Charter did was to recognize existing rights and freedoms, fulfill the gestation of oth-ers, and create new ones. It acts as a guarantee of these rights and freedoms and is a direction to government at the federal and provincial levels that no action of theirs is to be in conflict with its standards in the human and civil rights field. It therefore follows that if the rights of a citizen have been adversely affected in a particular instance, recourse is first had to the relevant human rights legislation enacted at the appropriate constitutional level. Where the conduct complained of is sanctioned by that human rights legislation or any other legislation, resort is then had to the Charter to determine if the legislation in question is inconsistent with the Charter. If it is, it is the legislation that will be struck down to the extent of the inconsistency. The person aggrieved may then pursue his or her remedies and the party formerly relying on the impugned legislation will have to address the complaint on its merits. The Charter does not apply to private activity; that is governed (if it is governed at all) by the human rights legislation enacted by the two levels of government."

20. The Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Limited, (1986) 1986 CanLII 5 (SCC), 33 D.L. R. (4th) 174 held that the Charter did not apply to "private" arrangements, but also expressly noted that where a party to the arrangement relies on governmental action, the Charter could be applicable. The Court wrote at 198:

"It would also seem that the Charter would apply to many forms of delegated legislation, regu-lations, Orders in Council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the legislatures. It is not suggested that this list is exhaustive. Where such exercise of, or reliance upon, governmental action is present and where one private party invokes or relies upon it to produce an infringement of the Charter rights of another, the Char-ter will be applicable."

While it seems that the Court's comment might invite Charter scrutiny of any conduct carried out by a non-government party pursuant to any statutory authority, the Court also pointed out that it was the statutory provision authorizing the activity that would be the subject of Charter scrutiny and not the activity itself. The Court wrote at 198:

"If in our case one could point to a statutory provision specifically outlawing secondary picket-ing of the nature contemplated by the appellants, the case -- assuming for the moment an infringement of the Charter -- would be on all fours with Blainey and, subject to s. 1 of the Charter, the statutory provision could be struck down. In neither case, would it be, as Professor Hogg would have it, the order of a court which would remove the case from the private sphere. It would be the result of one party's reliance on a statutory provision violative of the Charter."

[emphasis added]

21. The analysis of this issue by the Court of Appeal in McKinney, supra, also clearly focused attention on the statutory authority authorizing the activity which is being challenged, and not the activity itself. See McKinney, supra at 20-24. It seems therefore that if the conduct under attack is permitted or authorized by governmental action, such as a statute, regulation, order in council, etc. the Charter can be invoked to determine whether the statute, regulation, order in council etc. infringes the Charter, but that the Charter does not apply to the conduct itself unless that conduct can itself be viewed as the action of government. See McKinney, supra at 25-28.

22. In the case before us, the collective agreement, as it relates to the industrial, commer-cial and institutional sector of the construction industry was negotiated by the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency, both of which were designated by the Minister of Labour pursuant to the Labour Relations Act. Those agencies were authorized to represent employers and trade union unions in collective bargaining. However, their creation, administration and operation are not controlled by the Minister. There was no suggestion that the Minister of Labour gave directions to those agencies to act in a particu-lar way. The employer bargaining agency is analogous, in our view, to any other "body exercising statutory authority" to which the Court of Appeal in McKinney , supra, referred in the following passage at p. 23-25:

"To say that 'any body exercising statutory authority' is 'bound by the Charter' would mean that incorporated companies operating anything from a corner store to a world-wide cartel would be subject to the Charter. It would include innumerable bodies and indeed almost any organization which has been incorporated, because almost all can be said to be exercising statutory authority. The statement that a corporation exercising statutory powers must stay within the ambit of those powers does not mean that in exercising those powers it does so as 'government'. It may well be exercising those powers as a private entity. The statement: 'action taken under statutory author-ity is valid only if it is within the scope of that authority', is a correct statement of the law before and after the Charter, but it does not follow that an ultra vires action by the delegate of statu-tory power will cause the delegate to become the subject of Charter scrutiny. Actions taken outside of statutory authority may well attract the attention of the courts by way of judicial review, or give rise to actions for damages, or they may be ignored as ineffective. If the statu-tory authority is itself inconsistent with the Charter, it can be struck down. If the action taken by the delegate of statutory authority is ultra vires the statutory authority, the existing law pro-vides a remedy. But, if the action taken by the delegate is intra vires constitutionally valid stat-utory authority, it cannot be challenged under the Charter but only under the constitutionally appropriate human rights statute. In the case on appeal that statute is the Ontario Human Rights Code, 1981....

The fact that municipal corporations are "creatures of the legislature" is not determinative. It is the function that they were created to perform that is. 'Creatures of the Legislature' do not automatically become accountable to the Charter: they remain accountable to their 'creator'. Ordinarily, it is their 'creator' which would attract the reach of the Charter, but municipal cor-porations differ from other statutory corporations in that they are incorporated by government to perform a governmental function; a function that the provincial government could and often does perform itself. As such, they can be considered 'a distinct level of government' to use Lin-den J.'s phrase, or 'a branch of government' to use that of McIntyre J. in Dolphin Delivery, supra. But it is the function for which they are incorporated that gives them this status and not the mere fact that they are incorporated and have their authority to act bestowed upon them by their incorporating statute.

We do not believe that the various criteria that are identified by either the appellants or the respondent universities are very significant in determining if the respondent universities are sub-ject to the Charter. In our view, the extent to which the respondent universities receive financial support from the provincial government is irrelevant to a determination as to whether they are performing governmental functions or simply providing a public service. Their source of funds may reflect on their independence but it is of little help in determining their function. The fact that they have certain legislated crutches and perquisites is similarly not determinative of their role.

Further, we do not think it makes any difference that the Ministry of Education has made regu-lations with respect to admission standards or any goals or objectives in the educational process. The fact is that the universities are autonomous, they have boards of governors, or a governing council, the majority of whose members are elected or appointed independent of government. They pursue their own goals within the legislated limitations of their incorporation. With respect to the employment of professors, they are masters in their own houses.

In support of the submission that universities are bound by the Charter, counsel argued that they form part of the administrative machinery of government because they are subject to the supervisory authority of the courts through the traditional prerogative remedies. This can hardly be the test since our courts have never been reluctant to interfere in the internal affairs of wholly private organizations where members complain of a breach of internal rules or a denial of natural justice. Whether relief is available through civil action for declaratory relief, injunc-tive relief, an award of damages or resort to the Judicial Review Procedure Act, R.S.O. 1980, c. 224, is merely a matter of choice of remedies and is not determinative of whether or not a body is an emanation of government, performing a governmental function."

23. A similar finding was made by the British Columbia Court of Appeal in Harrison v. University of British Columbia, (1987), 1988 CanLII 183 (BC CA), 49 D.L.R. (4th) 687. In that case the Court found that the University was not an extension of government, and its mandatory retirement policy was a matter of private contract and not the exercise of a public function. The approach to that problem was set out by the Court at page 692-693:

"In other words, where the act alleged to infringe the Charter is the act of a branch of govern-ment as defined in Dolphin Delivery, the Charter applies. Where, on the other hand, the impugned act is the act of a body other than Parliament, the legislatures or their executives, it will be subject to the Charter to the extent that it bears a direct and definable connection to an act of Parliament, the legislatures or their executives, thereby establishing an exercise of govern-mental power. This result is in accordance with the purpose of the Charter of protecting individ-ual rights against undue infringement by the more powerful state. To permit Parliament, the legislatures or the executive arms of government to avoid the Charter by delegating their func-tions to, or dictating the conduct of, subsidiary bodies, which are immune from Charter scru-tiny, would run counter to that purpose. The state acting through a subsidiary agent should be equally subject to the Charter as the state acting directly.

Viewed thus, the question in this case is whether there is such a "direct and precisely defined connection" between the government and the acts of university alleged to violate the Charter, that those acts may be regarded as the exercise of governmental power. That connection might be established if it were found that the government exercises sufficient control over the univer-sity that the acts in question should be regarded as the government's acts. The requisite connec-tion might also be found if the act in question was done pursuant to a specific delegation of gov-ernmental power; in such a case, government power would be exercised, and it is that government power which attracts Charter scrutiny. This list is not comprehensive. In other cases, other factors may be relevant to determine whether a direct link with government is established."

24. The negotiation of a collective agreement by the Operating Engineers Employer Bar-

gaining Agency is, in our opinion, essentially a private matter not involving the exercise of govern-ment policy or government function. See Bhindi v. B. C. Projectionists Local 348, (1986), 1986 CanLII 1100 (BC CA), 29 D.L.R. (4th) 47 (B.C.C.A.); Ontario English Catholic Teachers Association v. Essex County Roman Catholic School Board, (1987), 1987 CanLII 4043 (ON HCJ), 36 D.L.R. (4th) 115 (Ont. Div. Ct.); Bartello v. Canada Post Corporation, (1987), 1987 CanLII 177 (ON HCJ), 62 O.R. (2d) 652 (H.C.).

25. The Operating Engineers Employer Bargaining Agency is not, in our opinion, an agency of the government. There is not a similar close relationship between the government and the Operating Engineers Employer Bargaining Agency as there was between the Council of Regents and the government which prompted Mr. Justice White in Lavigne v. Ontario Public Ser-vice Employees Union, (1986), 1986 CanLII 2629 (ON HCJ), 55 O.R. (2d) 449 (H.C.) to find that the Charter applied to the col-lective agreement negotiated by the Council of Regents, a delegate of ministerial authority.

26. The collective agreement before us was negotiated by an employer bargaining agency designated by the Minister of Labour. While the Labour Relations Act authorized the Operating Engineers Employer Bargaining Agency to bargain collectively on behalf of the respondent in respect of the industrial, commercial and institutional sector of the construction industry, neither the statute nor any other emanation of government directed that employer bargaining agency in it’s bargaining. None of the indicia upon which Mr. Justice White relied in reaching the conclusion that he did in Lavigne were present in the instant case before us. Additionally, the authority to carry on collective bargaining by the Operating Engineers Employer Bargaining Agency in respect of the sectors of the construction industry other than the industrial, commercial and institutional sector did not derive from the ministerial authority to designate bargaining representatives. There-fore, we find that the Operating Engineers Employer Bargaining Agency is not an agency or ema-nation of government.

27. Since the respondent in this case does not attack the legislation, but rather argues that the collective agreement is subject to Charter scrutiny, the respondent must persuade us that the collective agreement itself is a manifestation of government activity.

28. In our view, the position of the respondent in this case is virtually identical to the posi-tion taken by the applicant in Tomen v. Federation of Womens Teachers Association of Ontario, (1987), 1987 CanLII 4396 (ON HCJ), 61 O.R. (2d) 489 (H.C.). In that case, the applicant challenged a by-law of the Ontario Teachers Federation claiming, among other things that the by-law was contrary to the Charter. In dismissing the application, Mr. Justice Ewaschuk held that the by-law, although arguably having a public aspect, was in essence a private matter among the members of the Federation. His Lordship noted the applicants' argument that there was a public dimension to the by-law at page 502:

"The applicants contended that By-law I is not merely a private law but has a public dimension since it controls the collective bargaining process for elementary and secondary schools through the School Boards and Teachers Collective Negotiations Act, supra. By this public Act, to which the Charter undoubtedly applies, all teachers are required to bargain collectively with school boards on a local basis through their representative local affiliate. The applicants thus argued that, since By-law I dictate to which of the five affiliates a teacher must belong, By-law I has a public governmental dimension requiring Charter scrutiny."

29. In finding that the by-law in dispute was not subject to the Charter, Mr. Justice Ewas-chuk wrote at 506-507:

"The procedure for passing the by-law and its amendment is telling. By-law I is not a regulation approved by the Lieutenant-Governor in Council. Instead, By-law I is a corporate by-law passed by the board of governors to regulate internal membership in the five affiliates of the O.T.F. It is comparable to thousands of by-laws passed in Ontario by voluntary non-profit cor-porations to govern membership in the particular corporation. By-law I is an internal law passed by representatives of the teachers of Ontario to regulate membership in the five teachers' affili-ates of the O.T.F. Compulsory membership in a particular affiliate is not dictated by the Ontario government, but by the teachers themselves through their appropriate representatives - the board of governors equally representing the five teacher affiliates.

It is therefore abundantly clear that By-law I is a private law devised by teachers to regulate their membership in the five affiliates. Unlike the Klein case, supra, this private law does not have a public impact. In Klein, the Law Society regulated lawyers advertising to the public, and regulated lawyers dealing with the press. Here, the by-law regulates only membership internal to the O.T.F. and its five affiliates. In no way does By-law I have a public dimension.

Obviously the purpose in passing By-law I was to regulate membership in particular affiliates and not to regulate collective bargaining. It must be remembered that the School Boards and Teachers Collective Negotiations Act is not under attack here. Although the latter Act can only be changed by legislative amendment, compulsory membership in the five affiliates can be changed by a simply amendment of the by-law by the O.T.F. board of governors. It is in this sense that By-law I is private law internal to the democratic process of the federation. What the teachers have devised, the teachers may undo by simple amendment. No amendment by the Legislative Assembly of Ontario or by the Lieutenant-Governor in Council is required to remove compulsory membership in one of the five teacher affiliates.

I therefore repeat my conclusion that By-law I is a private law internal to the Ontario Teachers' Federation and its five teacher affiliates.

By-law I is therefore not subject to Charter scrutiny and in particular is not subject to s. 2(d) of the Charter relating to freedom of association nor to s. 15 of the Charter relating to equality rights."

30. It is clear that the collective agreement to which the respondent is bound was negotiated by entities that are not part of government. While it may be that there is some public aspect to the negotiation of the collective agreement, its content flows from collective bargaining, an activity undertaken that does not, in and of itself, constitute a government or public function. As in Tomen, supra, legislation is not under attack by the respondent before the Board, but rather it is the collective agreement that is the subject of dispute. The collective agreement, like the by-law in Tomen, supra, may be amended by the parties to the collective agreement without reference to the Legislature, the Lieutenant-Governor in Council or the Minister. The collective agreement is, in that sense, a private matter directly affecting only those employers who are members of a constitu-ent employers' organization of the Operating Engineers Employer Bargaining Agency or those employers for whose employees the applicant holds bargaining rights in respect of the industrial, commercial and institutional sector of the construction industry. As we are satisfied that neither of the parties to that collective agreement are manifestations of government, and the function of neg-otiating a collective agreement is not a public or governmental function, we are satisfied that the collective agreement is not subject to Charter scrutiny.

31. In view of paragraph 3 of the Board's decision in this matter of January 19, 1987, this grievance is to be heard on its merits. As no evidence has been adduced with respect to the merits of this grievance, this panel of the Board is not seized with this matter.