Ontario Public Service Employees Union v. The Crown in right of Ontario, 1989 CanLII 3002

Ontario Public Service Employees Union v. The Crown in right of Ontario

0956-88-R; 1073-88-R; 1329-88-R; 1617-88-R; 1639-88-R; 1884-88-R; 1885-88-R;2324-88-R; 2335-88-R Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and Barry Lightfoot, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Nat­ural Resources, and Smith Forestry Consultants, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as repre­sented by the Ministry of Natural Resources, and Hotchkiss Forestry Enterprises, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and Nicol Seguin, Respondent; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural resources, and John McCormack, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Nat­ural Resources, and Elsie McCormack, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by The Ministry of Government Services, and Wayne Forbes c.o.b. as Forbes Janito­rial Services, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Transporta­tion, and Dunning Paving Limited, Respondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and B. L. Arm­strong.

APPEARANCES: David Wright and Sherrie Currie for the applicant; Roy C. Filion, Karen E. Rey­nolds, and Al Kaufman for the Crown; Brenda Barker for Hotchkiss Forestry Enterprises; Nicol Seguin appeared on his own behalf; no one appeared for the other respondents.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER, B. L. ARM­STRONG; October 20, 1989

1The name of the second respondent in File No. 1329-88-R is amended to read: "Hotch­kiss Forestry Enterprises".

2These are nine applications under the Successor Rights (Crown Transfers) Act (the ''Act").

3In a decision dated July 19, 1989, in respect of File Nos. 0956-88-R, 1617-88-R, 1884-

88-R, 1885-88-R, 2324-88-R, and 2335-88-R (Dunning Paving Limited, [1989] OLRB Rep. July

714, which will be referred to herein as the Dunning decision, for ease of reference), the majority of a panel of the Board composed of the writer and Board Members B. L. Armstrong and J. A. Rundle (with Board Member Rundle dissenting) granted those six applications and declared that, by virtue of section 2(1) of the Act, the respondents Barry Lightfoot, John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services, John McCormack, Elsie McCormack, Wayne Forbes c.o.b. as Forbes Janitorial Services, and Dunning Paving Limited, had each become bound by the collective agreement between the applicant (also referred to in this decision as "O.P­.S.E.U." and the "Union") and the Crown (as represented by the Management Board of Cabi­net). In the instant proceedings, the Union seeks similar declarations in respect of the respondents in File Nos. 1073-88-R, 1329-88-R, and 1639-88-R. Those applications are opposed by the Crown and the other respondents who appeared or were represented at the hearing. The Crown also seeks to have the Board reconsider the Dunning decision on the basis of a judgment rendered on December 22, 1988 by the Supreme Court of Canada in Le Syndicat National des Employes de la Commission Scolaire Regionale de la L'Outaouais (CSN) v. Union des Employes de Service, Local 298 (FTQ), which will be referred to herein as "CSN" for ease of exposition. That request for reconsideration is opposed by O.P.S.E.U.

4The evidence regarding File No. 1639-88-R was heard on July 26, 1989, and the evi­dence regarding File Nos. 1073-88-R and 1329-88-R was heard on August 1, 1989. On August 2, 1989, the Board heard argument in respect of those three applications, and also in respect of the aforementioned request for reconsideration. In preparing this decision, we have duly considered all of the oral and documentary evidence which was adduced before us, the statement of facts to which the parties to the application in File No. 1329-88-R agreed for purposes of this case, and the submissions that were made on behalf of the various parties.

5File No. 1639-88-R, pertains to a contract between the Ministry of Natural Resources (the "Ministry") and the respondent Nicol Seguin ("Seguin") in respect of a natural regeneration survey of approximately 960 hectares of Crown forest in the Nipissing and Ottawa River Forest Management Units of the Ministry's North Bay Administrative District (the "District"). Regenera­tion surveys form part of the Ministry's forest management program. A natural regeneration sur­vey is generally performed about five years after an area of forest has been harvested. Its purpose is to determine the level of natural regeneration which has occurred during that period. (Where transplanting has occurred, an "artificial regeneration survey" is conducted to determine the level of regeneration which has occurred.) To conduct a regeneration survey, lines are run in a set grid pattern across the area to be surveyed, and plots are surveyed along that line. Information is thereby gathered concerning such matters as the size and vigour of the species, the amount of com­peting vegetation, and the overall condition of the regeneration. That data is recorded on silvicul­ture assessment stock tallying sheets supplied by the Ministry, and is used to perform calculations from which a regeneration figure for the area can be interpolated. This figure enables Ministry offi­cials to assess whether the area can be left to grow on its own or whether transplantation or other regeneration work is required.

6Prior to 1988, natural regeneration surveys and artificial regeneration surveys had been performed in other areas in the District by seasonal and regular employees of the Ministry. How­ever, in 1988 a relatively high incidence of forest fires kept many of the Ministry's seasonal and reg­ular employees engaged in activities other than forest management work for much of the season. In order to catch up on some of that work, the Ministry extended the contracts of three seasonal employees, and sought tenders in respect of the aforementioned natural regeneration survey, which had to be completed prior to snowfall and leaf drop. Bob Brunette, the Ministry's Forest Operations Manager for the District, testified that at the time of that tender, there were no sea­sonal employees on layoff with recall rights under the collective agreement. Mr. Brunette consid­ered hiring some additional seasonal employees to perform that regeneration survey, but decided not to do so because of time constraints.

7Tenders in respect of the contract in question were invited by means of a newspaper advertisement and by means of letters sent by the Ministry to individuals and companies that had previously expressed an interest in performing regeneration surveys. The Ministry held a manda­tory information session on September 13, 1988 at the District Office to explain the survey proce­dure and how it was to be carried out. Only those who attended that meeting were eligible to sub­mit a bid for the contract. The tender closed at noon on September 16. The contract was awarded to Seguin, whose bidding price was the lowest of the six tenders received. Seguin had worked for the Ministry as a seasonal employee during two or three previous summers. He performed a regen­eration survey during his first summer of seasonal employment with the Ministry, and also per­formed other forest management functions. He also worked for the Ministry as a seasonal employee during June of 1988 doing tree marking, which is another part of the Ministry's forest management program.

8As a result of that tender, on September 22 the Ministry and Seguin entered into a con­tract which detailed the specifications of the regeneration survey and the terms under which it was to be performed. That contract required Seguin to complete the survey before November 4, and to provide the Ministry on or before, November 11 with all final information and data collected in respect of the survey. He hired an undergraduate forest technician from Sioux College as an employee to assist him in performing that contract (in accordance with one of the provisions of Schedule "A" to the contract, which provided that a "survey party shall consist of a minimum of two persons"). The aerial photographs and maps required to locate the areas to be surveyed were provided to Seguin by the Ministry as part of the tender package. The Ministry also provided him with tallying sheets and an instruction manual concerning the assessment procedure. Seguin pro­vided the remainder of the equipment needed to perform the contract, including a clipboard, hip chain (which is a measuring device consisting of a counter with a spool of thread), stereoscopes (used to view the aerial photographs); and a sketchmaster (used to transpose from the aerial pho­tographs to the map). After Seguin submitted his invoice and the other documentation required under the contract, Ministry employees audited his performance and verified that it was within the performance range specified in the contract. He was then paid by the Ministry in accordance with the terms of the contract.

9File No. 1073-88-R pertains to a contract between the Ministry and Smith Forestry Con­sultants ("Smith") in respect of the ground spray (hand-spot) application of the chemical Velpar in certain areas in the Ministry's Blind River Administrative District. File No. 1329-88-R pertains to a similar contract between the Ministry and Hotchkiss Forestry Enterprises ("Hotchkiss").

10Velpar is a selective chemical herbicide which is applied in newly planted stands of trees (such as jack pine), as part of the Ministry's forest management program, in order to eliminate unwanted vegetation (such as poplar and grasses) that would otherwise compete with the trees for light, moisture, and nutrients. Portable backpack sprayer units are used to apply the chemical in measured amounts in various spots between the trees so as to achieve a coverage of 3000 spots per hectare. The chemical subsequently kills the roots of the unwanted plants after precipitation causes its absorption into the soil. A blue dye called "Traxit" is mixed with the Velpar prior to spraying to provide a means of visually locating the spots which have been sprayed. Prior to Velpar becoming available for use in the mid 1980's, the Ministry had done some ground application of other chemi­cals, but their limited effectiveness had necessitated a lot of hand clearing projects.

11Prior to 1988 the hand-spot application of Velpar had been performed by Ministry employees in its Blind River Administrative District. However, in 1988 the Ministry decided to have it performed by contractors. Invitations to tender were sent to Smith, Hotchkiss, and various other firms which the Ministry knew to have some interest in bidding on such contracts. The tender was initially divided into four different areas (each referred to in the tender as a "Job No.") but one of them was subsequently dropped. Hotchkiss was the successful bidder on Job No. 1 (involv­ing 60 hectares in Timbrell and Villeneuve Townships), and Smith was the successful bidder on Job Nos. 2 and 3 (involving a total of 120 hectares in Esten, Proctor, and Lewis Townships). None of those areas had ever been sprayed with Velpar before, but some areas nearby the areas covered by Job No. 3 had been sprayed with Velpar by some of the Ministry's seasonal employees in the previ­ous year. After beginning their seasonal work by planting trees in May, those seasonal employees performed handspot spraying of Velpar and then performed hand clearing work until the end of the season (in early September).

12After being notified by the Ministry that they were the successful bidders, Hotchkiss and Smith each entered into a detailed written contract with the Ministry. A pre-project meeting was also held with each of the contractors to ensure that all of the documentation was in place and that all of the necessary arrangements had been made for the proper performance of their con­tracts. Those pre-project meetings with Smith and Hotchkiss were held on June 1, 1988, and June 17, 1988, respectively.

13Although they are available on the open market, under the terms of those contracts the Ministry agreed to provide Velpar and Traxit to Smith and Hotchkiss. The contracts obligated the contractors to provide their own backpack sprayer units, but the Ministry agreed to rent some of its units (which had been purchased by the Ministry at a cost of about $225 each) to Hotchkiss at a nominal rental rate of $1 per unit, when the units which Hotchkiss had ordered had not arrived by the time Hotchkiss was to begin spraying under the contract. Hotchkiss completed all of its work under the contract during the period from June 17 to June 26. No backpack sprayer units were rented to Smith, which began to spray with its own units in early June and completed the contract by June 30. Both contractors were paid the full amounts which they invoiced since the Ministry's assessment (performed by Ministry employees) indicated that the spraying had been properly per­formed. (The contracts provided for assessment on the basis of four groups of 25 trees per hectare, but assessment on the basis of one group of 25 trees per hectare was substituted on the agreement of the parties when the original plan proved to be too cumbersome.)

14The work under Smith's contract was performed by Peter Smith (the principal of Smith Forestry Consultants) and by other persons employed by Smith. Gordon Hotchkiss, the President of Hotchkiss Forestry Enterprises, did not personally perform the work under his company's con­tract. The employees used by Hotchkiss to perform its contract are described in the following state­ment of facts agreed to by the parties for purposes of this case, as presented to the Board by Hotchkiss's representative, Brenda Barker, after Mr. Hotchkiss proved to be unable to attend the hearing because of pressing family matters:

During the 1988 contract the employees who performed the work in question were five employ­ees. They were all students that were working during their summer vacation. The students worked on other projects for Hotchkiss. They worked from approximately May 2 to approxi­mately June 15 on tree planting, then from June 17 to June 26 on the herbicide spraying project. Then their employment was completed. They didn't work after June 26.

15In submissions which were subsequently adopted by Ms. Barker on behalf of Hotchkiss, Mr. Filion argued on behalf of the Crown that the Supreme Court of Canada's decision in CSN has changed the state of the law concerning the meaning of the term "undertaking". In that case, a school board had always used contractors to clean six of its schools. The contracts for those janito­rial services were awarded for each school annually through calls for tenders, and were generally in effect from July 1 of one year to June 30 of the following year. In 1979 the contracts for janitorial services at four of the schools were awarded to one company ("Netco"), and the contracts for jani­torial services at the other two schools were awarded to another company ("MBD"). The CSN Union held certificates for the Netco employees working at those four schools, and also held cer­tificates for the MBD employees working at the other two schools. All of those employees embarked upon a lawful strike in early December of 1979, as a result of which the school board terminated the contracts with Netco and MBD. After calling for new tenders, the school board awarded contracts for janitorial services at the six schools to a third company ("SMR") in January of 1980. When another union (the "FTQ Union") applied for certification in respect of various employees of SMR, including the employees performing the janitorial work at the six schools, the CSN Union attempted to defeat that application for certification by filing an application in which it sought to have a transfer of rights and obligations from MBD and Netco to SMR recorded pursu­ant to sections 45 and 46 of the Quebec Labour Code, (the "Code"). Those sections provide as follows:

45. The alienation or operation by another in whole or in part of an undertaking otherwise than by judicial sale shall not invalidate any certification granted under this code, any collective agreement or any proceeding for the securing of certification or for the making or carrying out of a collective agreement.

The new employer, notwithstanding the division, amalgamation or changed legal structure of the undertaking, shall be bound by the certification or collective agreement as if he were named therein and shall become ipso facto a party to any proceeding relating thereto, in the place and stead of the former employer.

46. An [sic] labour commissioner may make any order deemed necessary to record the transfer of rights and obligations provided for in section 45 and settle any difficulty arising out of the application thereof.

That application was granted by the labour commissioner, who concluded that, although no con­tract or transaction of any kind had been entered into between SMR, MBD, and Netco in respect of the janitorial work in question, and although no legal relationship existed between any of them, section 45 of the Code applied. Accordingly, the commissioner concluded that the rights and obli­gations of MBD or Netco, as the case might be, had been transferred to SMR, which he declared to be bound by the certification of MBD and Netco, and by the legal strike initiated against them. His decision was appealed to the Quebec Labour Court and was upheld by a majority of that court. However, that decision was quashed by the Superior Court (which allowed a motion for evocation filed by the FTQ Union). The Superior Court judgment was affirmed by the Quebec Court of Appeal, and by the Supreme Court of Canada.

16In affirming that the commissioner had exceeded his jurisdiction, Beetz J. (who wrote the unanimous judgment of the four members of the Court who decided the appeal) held that sec­tion 45 of the Code did not bring about a transfer of rights from Netco and MBD to SMR because there was never an alienation or agreement to operate between Netco and SMR, nor between MBD and SMR. The Court noted that, in reality, those three companies were competitors and the school board was a client, which had dealt first with Netco and MBD, then with SMR, without ever having used any employees of its own to perform the work. Thus, the case is clearly distinguishable from the instant applications, in which parts of the Ministry's forest management program which the Ministry previously performed itself by using its own employees have been transferred to con­tractors. However, the Supreme Court of Canada's judgment in CSN also construed the term "un­dertaking" in the context of section 45 of the Code. In rejecting the "functional" definition adopted by the commissioner (and the majority of the Quebec Labour Code) which merely required that the same jobs, tasks, and activities be performed by the alleged successor, the Court indicated that "[t]he undertaking at issue in section 45 'consists of a self-sustaining organization of resources through which specific activities can be wholly or partly carried on"'. Crown counsel urges us to adopt a similar definition in these proceedings. However, unlike the Code which con­tains no definition of "undertaking", section 1(1)(h) of the Act defines that term in the following expansive manner:

"undertaking" means a business, enterprise, institution, program, project, work or a part of any of them.

18. In KBM Forestry Consultants Inc., [1987] OLRB Reports March 399 ("KBM"), the Board left open the issue of whether the term "work" in the section 1(1)(h) definition of "under­taking" meant "the performance of labour":

10. The relevant portions of the Successor Rights (Crown Transfers) Act are as follows:

1.-(1) In this Act,

(f) "transfer" means a conveyance, disposition or sale;

(h) "undertaking" means a business, enterprise, institution, program, project, work or a part of any of them.

2.-(1) Where an undertaking is transferred from the Crown to an employer and a bar­gaining agent has a collective agreement with the Crown in respect of employees employed in the undertaking, the employer is bound by the collective agreement as if a party to the collective agreement until the Board declares otherwise.

Comparable provisions under section 63 of the Labour relations Act (also referred to as "section 63") are as follows:

63.-(1) In this section,

(a) "business" includes a part or parts thereof;

(b) "sells" includes leases, transfers and any other manner of dispo­sition, and "sold" and "sale" have corresponding meanings.

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the busi­ness has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto

In both statutes, there is provision for the Board to determine the composition of the bargaining unit where it is necessary to do so.

11. The Successor Rights (Crown Transfers) Act was enacted to fill the gap left by the fact that section 63 of the Labour Relations Act does not apply to the Crown: Municipality of Metropoli­tan Toronto, [19751 OLRB Rep. Oct. 777. In enacting the new statute, however, the Legislature employed wording different from that found under the parallel section 63 of the Labour Rela­tions Act. That wording reflects the nature of certain of the wide range of activities engaged in by government. Thus even though jurisprudence under section 63 of the Labour Relations Act is applicable to applications under the Successor Rights (Crown Transfers) Act (see, for example, The Ministry of Natural Resources, [1986] OLRB Rep. March 331), cases under the latter stat­ute must be considered in the context of the wording of that Act. As the Board said in The Min­istry of Natural Resources, supra, at paragraph 4, "the Successor Rights (Crown Transfers) Act was intended to apply at least to circumstances analogous to those in which the Board has found a 'sale of a business' under section 63 of the Labour Relations Act" (emphasis added). The Board's interpretation of section 2 of the Successor Rights (Crown Transfers) Act is not limited by its interpretation of section 63 of the Labour Relations Act, but must be given a broad inter­pretation (a general principle also applied to section 63) which takes into account the extensive definition of "undertaking". For example, in our view, it does not require the transfer of physi­cal assets, as suggested by counsel for KBM, nor does the length of the contract affect whether it is a "transfer", as suggested by counsel for the Crown. Underlying the legislation is the recog­nition (a recognition also underlying section 63 of the Labour Relations Act) that "the continuity of the work performed before and after the transfer [is of "particular significance"], since the trade union is certified to represent certain work groups, the collective agreement regulates the conditions of work for employees in those groups, and the purpose of section [63] is to preserve both the bargaining relationship and the collective agreement": Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, paragraph 32, cited in The Ministry of Natural Resources, supra. More specifically in the context of the Successor Rights (Crown Transfers) Act, the gains achieved by the union with respect to the jobs which are integral to a particular government pro­gram are not to be lost through the government's transferring that program (and those jobs) to a private entity (and vice versa). From another perspective, it may be said that whatever protec­tions or conditions accrue to those jobs through representation by the union are not to be threatened through the government's transferring the program or portion of a program, of which they are a part, to a private entity.

12. It has been held that under section 63, the transfer of work alone does not meet the require­ments of the section: see, for example, British American Bank Note Co. Ltd., [1979] OLRB Rep. Feb. 72 and Corporation of the City of Stratford, [1985] OLRB Rep. June 923. Under sec­tion 63, that which may be sold is the predecessor employer's business or portion of a business which has been defined in relation to economic organization, including physical assets, operating personnel and goodwill: Metropolitan Parking Inc., supra, and cases cited therein. Under sec­tion 2, on the other hand, that which may be transferred or conveyed includes "projects" or "programs" or "work". We do not necessarily conclude that "work" within the meaning of sec­tion 2 means the same type of work as that the transfer of which does not alone satisfy the requirements of section 63, i.e., the performance or labour; more appropriately, work must be read within the context of the word "undertaking". However, it is not necessary for us to decide that issue in this case. We are satisfied that in this case a "program" or "project" is the most rel­evant form of undertaking listed in section 2. A program or project may be defined as the inter­related steps or functions (or "the work") established for the purpose of achieving a particular objective. The concept of "title" cannot attach to a project or program (although title to equip­ment or land might pass; however, we have already said that the transfer of either equipment or land is not necessary to a transfer within the meaning of section 2). Here, the Crown is involved in a reforestation project or program, operating out of its Thunder Bay Forest Nursery, and as part of that project or program, it is necessary to harvest seedlings which will later be replanted. A portion of this harvesting, following upon the loosening of the soil and prior to the actual replanting, was, but is no longer, done by the Ministry; it is now done by KBM. The Ministry has transferred (or "disposed" of) that part of the project to KBM, although it retains an inter­est in ensuring that the work performed by KBM is performed in a manner consistent with the standards established by the Ministry for the reforestation program. That brings it squarely within section 2 of the Successor Rights (Crown Transfers) Act. We are satisfied that there has been a continuation of the work and jobs, that OPSEU is the bargaining agent for employees performing that work and that the Crown and OPSEU are parties to a collective agreement applying to that work.

19. In dismissing an application for judicial review of KBM on April 25, 1988, the Divi­sional Court stated:

In our view there can be, as in this case, a disposition of services effecting a transfer under s.2(1) of the Act. Such a transfer is consonant with the large range [of] governmental activity contemplated within the definition of "undertaking" in s.1(1) of the Act. The diversity of such activity goes beyond the concept of "business" as found in S.63 of the Ontario Labour Relations Act and accordingly the term "undertaking" as found in S.11) of the Act should not be lim­ited by analogy [to] 5.63. In concluding that the reforestation herein [is a] "program, project, work or a part of any of them", the award was not patently unreasonable.

20. In Charmaine's Janitorial Services, [1988] OLRB Rep. Sept. 871 ("Charmaine"), the Board specifically rejected the notion that the term "work" refers to "exertion of labour" and that the section 1(1)(h) definition of "undertaking" includes the mere performance of labour in itself:

20. The jurisprudence makes it clear that the transfer of work alone does not constitute a sale of a business or part of a business under section 63: British American Bank Note Co. Ltd., [1979] OLRB Rep. Feb. 72, at para. 11 ("section [63] cannot be interpreted as guaranteeing to a bar­gaining agent an absolute right of property in the work performed by its members"); Metropolitan Parking Inc., supra, at paras. 36 ("The focus of section [63] is the business entity --the employer's total economic organization -- not simply the work which the employees per­form:), 38 ("A transfer of work, by itself, is simply not enough to ground a section [631 finding.") and 44 ("The Legislature could have provided for the continuation of bargaining rights whenever there is a continuity of the work performed, but it did not do so."); The Charm­ing Hostess Inc., [1982] OLRB Rep. April 536, at para. 33; The Corporation of the City of Stratford, [1985] OLRB Rep. June 923.

21. We are of the view that the definition of "undertaking" in clause 1(1)(h) of the Act does not include the mere performance of labour in itself. Clause 1(1)(h) does not state that "undertak­ing" includes the enumerated words, but rather that it means those words and therefore is lim­ited to them. Where the context does not suggest a contrary intention, given a list of terms in a definitional phrase, the terms should be interpreted with reference to each other (that is, as "of the same kind or nature" or ejusdem generis), as counsel for the Crown argues, rather than interpreting one of the terms, here the term "work", as if it were the only term of its own class in a list of terms of another class or classes (that is, "of its own particular kind" or sui generis). Furthermore, "work" is part of a list which is preceded by the indefinite article "a" and the most common sense reading of the clause is that "'undertaking' means a ... work or a part of [it]". We conclude that the term "work" does not refer in itself to the exertion of labour and that in and by itself the performance of labour does not constitute an undertaking.

22. As the Divisional Court indicated in KBM, supra, however, the provision of services may constitute an undertaking within the meaning of clause 1(1)(h) of the Crown Transfers Act. The provision of services is, of course, a function integral to modern governments and while it may be difficult to distinguish the provision of services from the performance of labour, in the gov­eminent context, many programs are comprised in their physical manifestation of little more than the provision of services to the public. The purpose of such provision is nevertheless to carry out a government undertaking or part of an undertaking.

23. Thus under section 63, which is concerned with the private sector, the Board has been insis­tent on ensuring that more than the expenditure of energy or physical exertion be transferred from one entity to another in order for there to be a transfer of a business. It has held that if all that is transferred is the opportunity to do work, there is no transfer; there is no transfer, for example, if business A has contracted to business B the right to provide labour to carry out some purpose (such as providing persoinel to help the predecessor employer run its hospitality portion of its business better: The Charming Hostess Inc., supra, paras. 37 - 39). For that rea­son, the Board has spoken of the transfer of assets, goodwill, inventory, customer lists and other indicia of a thriving or once thriving business and has required that some of such indicia be present to find that a business has been transferred. In referring to a "part" of a business, the Board has not been willing to consider the exertion of labour as constituting a "part", but rather has interpreted "part" as a coherent and severable portion of a business, such as one of a chain of stores or a clearly identifiable department in a factory: Metropolitan Parking Inc., supra, para. 33.

24. The distinction between "work" and a total business is less easy to make in the government context because of the nature of the undertakings carried on by government. While the purpose of section 63 and that of the Crown Transfers Act are analogous, it is not insignificant that the wording of the two provisions are not the same. The legislature has explicitly recognized that the functions of government place it in the role of employer, but that as an employer it may be engaged in quite different sorts of interests than the private sector, even as it also may be engaged in quite similar interests in form if not in substance; the provision of social assistance or of housing and the functions performed by employees in connection with such programs are fun­damentally different than the usual private business and the functions carried out by its employ­ees, but the running of a railway or of a bookshop will not outwardly be different whether car­ried on by a private employer or by government and can be characterised much more easily as a "business" than the provision of social assistance. Yet the provision of social assistance or of housing or the running of a railway or bookstore are all "undertakings" within the meaning of clause 1(1)(h) of the Crown Transfers Act.

25. In other words, while the purpose may be the same, the activities encompassed by the two provisions are not similar. Just as "business" and "undertaking" are neither conceptually nor in fact synonymous, the definition of "part" of an undertaking cannot be the same as that of "part" of a "business" but must take into account the different ways in which government car­ries out its functions and in which it acts as an employer. As "undertaking" is broader than "business", so may "part" of an undertaking be broader than "part" of a business. The notion of a coherent and severable portion of a business, in the sense of one store of many, which is applicable under section 63, is not necessarily appropriately transferred to the Crown Transfers Act. A program or project may be comprised of several distinct functions which can be severed but which do not constitute anything resembling a microcosm of the whole. Thus the operation of Algonquin Park consists in providing services to the users of the Park which make the Park's use possible in the first place or more enjoyable or complete, as well as services which enable the government to benefit from the operation of the Park, among other things. These activities are severable in the sense of being easily identifiable as distinct services, but they mean very lit­tle on their own and are not analogous to the manner in which the Board has generally defined "part" of a business under section 63. That does not make them any less "part" of the undertak­ing of operating the Park, however, since in reality the operation of the Park can be seen only as comprised of these different services or functions.

21. We respectfully agree with that reasoning and, having regard to the provisions of the Act and in particular to the section 1(1)(h) definition of "undertaking", we are not persuaded that anything which the Supreme Court of Canada said in CSN in construing that term in the context of the Code, negates the validity of that reasoning, which was adopted and applied in Dunning.

22. Crown counsel also referred us to the Canada Labour Relations Board decision dated May 8, 1989 in Canadian Union of Postal Workers v. Canada Post Corporation and Nieman's Pharmacy (C.L.R.B. Files 585-199 and 585-243). In the course of deciding that Canada Post did not sell a part of its business by entering into contractual arrangements under which Nieman's Pharmacy operated two "gross marginal postal outlets", the Canada Labour Relations Board found the CSN judgment to be relevant to the application of section 44 of the Canada Labour Code, which provides as follows:

44.(1) In this section and in sections 45 and 46,

"business" means any federal work, undertaking or business and any part thereof;

"sell", in relation to a business, includes the lease, transfer and other disposition of the busi­ness.

(2) Subject to subsections 45(1) to (3), where an employer sells his business,

(a) a trade union that is the bargaining agent for the employees employed in the business con­tinues to be their bargaining agent;

(b) a trade union that made application for certification in respect of any employees employed in the business before the date on which the business is sold may, subject to this Part, be certified by the Board as their bargaining agent;

(c) the person to whom the business is sold is bound by any collective agreement that is, on the date on which the business is sold, applicable to the employees employed in the busi­ness; and

(d) the person to whom the business is sold becomes a party to any proceeding taken under this Part that is pending on the date on which the business was sold and that affects the employees employed in the business or their bargaining agent.

However, we do not find that decision to be of assistance in construing the Act because, as was the case with the applicable legislative provisions in CSN, the Canada Labour Code provisions under which it was decided leave the term "undertaking" undefined, and do not contain anything like section 1(1)(h) of the Act, by which the Ontario Legislature has given that term an expansive defi­nition.

23. For the foregoing reasons, the Crown's request for reconsideration of the Dunning deci­sion is hereby rejected, as is its contention that the Board should adopt a different approach in the instant decision. (In view of our conclusion in that regard, it is unnecessary to determine whether the subsequent release of an English translation of a Supreme Court of Canada judgment that was only available in French at the time the case was argued before the Board provides a legitimate basis for a reconsideration request.)

24. Under section 2(1) of the Act, an employer is bound by the collective Agreement between the Union and the Crown where an undertaking is transferred from the Crown to the employer and the Union has a collective agreement with the Crown in respect of employees employed in the undertaking. It is clear from the evidence that the ground spray application of Velpar forms part of the Ministry's forest management program, just as the marking and tallying of trees described in paragraphs 27 to 31 of Dunning formed part of that program (and just as the lift­ing of nursery trees and the transplanting of seedling stock described in paragraphs 12 to 14 of Charmaine formed part of its reforestation program). The same is true of a natural regeneration survey. The Crown provided Smith, Hotchkiss, and Seguin with detailed written instructions con­cerning the performance of their obligations under their respective contracts, and also gave them access to the Crown forests and Crown management units in which they were to fulfil those obliga­tions. The Ministry supplied Seguin with aerial photographs and maps, tallying sheets, and an instruction manual concerning the assessment procedure. It supplied Smith and Hotchkiss with Velpar and Traxit. It also provided Hotchkiss with backpack sprayer units at a nominal rent when the units which Hotchkiss had ordered had not arrived by the time Hotchkiss was to begin spraying under the contract. Having regard to the breadth of the section 1(1)(h) definition, and to the prin­ciples set forth in the decisions quoted above, we are satisfied that the subject matter of each of the three contracts in question is an "undertaking" within the meaning of the Act, because the subject matter of each of them is a part of a Crown program, namely, the Ministry's forest management program.

25. It is also clear from the evidence that, in each of the three applications, the undertaking has been "transferred", within the meaning of section 1(1)(f) of the Act, from the Crown to an employer through the tendering procedures described above. As indicated in paragraph 54 of Dunning, the term "employer" is a label used to identify the corporation, partnership, association, or other entity to which an undertaking has been transferred. Moreover, even if the Board were to adopt the more restrictive definition of "employer" which was considered and rejected in Dunning (namely, that an "employer" is a person or firm that employs a worker or workers for remunera­tion), Smithy Hotchkiss, and Seguin would all still be found to be employers, because they each employed at least one employee for remuneration in fulfilling their contractual obligations to the Crown.

26. The final prerequisite of section 2(1) is that the Union have "a collective agreement with the Crown in respect of employees employed in the undertaking". It was contended by Crown counsel that this prerequisite is not met unless there is evidence that the functions covered by the contract have been performed in the past by Crown employees in the precise location(s) to which the contract pertains. In making that submission, counsel referred to these three applications as involving "new work", in the sense that no regeneration survey or ground spray application of Vel­par had ever been carried out by Crown employees in the precise locations covered by the con­tracts. However, the contention that, for section 2(1) of the Act to apply, there must be evidence that the operations in question have been performed in the past by Crown employees in the precise locations covered by the contracts has already been considered and rejected by the Board. In Dunning, the Board wrote as follows in paragraph 56:

The final prerequisite of section 2(1) is that the Union have "a collective agreement with the Crown in respect of employees employed in the undertaking". In construing that phrase in the context of section 2(1), we have derived some assistance from that subsection's omission of the words "immediately before the transfer", which words follow that phrase in section 4(1) of the Act. The omission of those words from section 2(1) supports the Union's contention that for that provision to be applicable there need not have been Crown employees performing the work in question immediately before it was contracted out. Indeed, as indicated above, Crown coun­sel acknowledged in his reply argument that performance of the work in question by Crown employees immediately prior to the transfer is not a prerequisite of section 2(1). If it were, the applications in KBM and Charmaine could not have succeeded as, in view of the seasonal nature of the work, there would not have been any Crown employees performing it immediately prior to the transfers of undertakings which occurred in those cases. Moreover, the narrow interpreta­tion of section 2(1) on which the "lack of continuity argument" is based gives rise to a serious anomaly from a labour relations perspective. If Crown counsel's interpretation of section 2(1) is correct, even if the Union acted as expeditiously as possible to preserve its bargaining rights by filing and successfully pursuing an application under the Act shortly after an undertaking was first transferred by the Crown to an employer by means of a contract, the Union would be unable to continue to preserve those bargaining rights if, after that contract expired or was ter­minated, the Crown transferred the undertaking to another employer without using Crown employees to perform any of the work in the interim. As indicated above, Union counsel con­tends that the word "employees" in the section 2(1) phrase "collective agreement with the Crown in respect of employees employed in the undertaking" should be interpreted to !nean "those who would do the work if done by the Crown". It is unnecessary for purposes of this decision to rule upon the validity of that proposed interpretation, which might bring within the ambit of the Act the contracting out of new functions which have never previously been per­formed by Crown employees. None of the applications covered by this decision involves such a situation. Snow plowing, garbage pick-up and disposal, janitorial work, operating and maintain­ing access points, and marking and tallying of trees have been and continue to be performed by Crown employees covered by the collective agreement between the Union and the Crown (al­though the number of Crown employees performing such work has been reduced by contracting out). Without attempting to provide a definitive interpretation of the phrase in question, we are satisfied that it is at least broad enough to encompass situations in which the Union has histori­cally had, and has at the time at which the contract transfers the undertaking to an employer, a collective agreement with the Crown in respect of Crown employees who perform the type of functions covered by the contract, irrespective of whether such functions are actually being per­formed at that time. This interpretation affords due recognition to the aforementioned differ­ence in wording between sections 2(1) and 4(1), and does not give rise to the aforementioned anomaly. Moreover, it is also reflective of the "fair, large and liberal construction and interpre­tation" which, as noted above, section 10 of the Interpretation Act directs be given to every Act of the Legislature. In light of our conclusion concerning the meaning of that phrase, we find no merit in Crown counsel's submission that for section 2(1) to apply, there must be evidence that the work in question has been performed in the past by Crown employees in the precise location cov­ered by the contract. Thus, it is irrelevant (in respect of File No. 2324-88-R) whether the M.G.S. ever used Crown employees to perform janitorial work at the Centre, as it is clear from the evi­dence that it has used and continues to use Crown employees to perform that same function at other locations, and that such employees were and are covered by the Crown's collective agree­ment with the Union. The same is true of the tree marking and tallying described above in respect of File No. 1617-88-R. As indicated above, the M.N.R. has done tree marking and tally­ing in the Lindsay District every year for at least the past six years, but the locations in which it has been performed have changed each year in accordance with the nature of the Ministry's for­est management program, which requires different areas to be planted and tended at different times. To adopt in such a context the approach suggested by Crown counsel would be to unduly narrow the scope of the Act and thwart the attainment of its object of preserving bargaining rights in the context of the transfer of an undertaking from the Crown to an employer.

[Emphasis added.]

27. Similarly, in the instant case the evidence indicates that the Ministry has in recent years used its own employees to perform natural regeneration surveys in its North Bay Administrative District, and to perform ground (hand-spot) application of Velpar in its Blind River Administra­tive District. The precise locations in which those functions have been performed have changed from year to year in accordance with the nature of the Ministry's forest management program, of which they are each a part. Under the circumstances, we are satisfied that, at all material times, the Union had a collective agreement with the Crown in respect of employees employed in the under­takings to which these applications pertain.

28. Ms. Barker contended that the application pertaining to Hotchkiss should be dismissed because it was not filed with the Board during the time that Hotchkiss was carrying out its contract with the Ministry. However, nothing in the Act precludes the Board from dealing with an applica­tion which pertains to a contact which has been fulfilled prior to the application. The only time lim­its specified in the Act are the sixty-day periods referred to in clauses (a) and (b) of section 4(2), which apply to applications for termination of bargaining rights on the basis of a substantial change in the character of the undertaking. No such application is before us in these proceedings. When the Crown transfers an undertaking to an employer and a bargaining agent has a collective agree­ment with the Crown in respect of employees employed in the undertaking, the employer becomes bound by the collective agreement by virtue of section 2(1) of the Act. Thus, no application is nec­essary to give the collective agreement binding effect, as the employer is bound by it as a matter of law until the Board otherwise declares. Although delay on the part of a trade union in seeking to enforce rights under a collective agreement may in some circumstances support an arbitral declina­tion to remedy breaches of a collective agreement, nothing in the Act suggests that delay on the part of a trade union in filing an application under the Act constitutes a legitimate basis for releas­ing the employer from the binding effect of the collective agreement. Moreover, even if we were to assume (without deciding) that we could "otherwise declare" on the basis of delay, there is no evi­dence that Hotchkiss has been prejudiced by any delay on the part of the Union, nor is there any­thing else in the circumstances of this case that would warrant such a declaration.

29. Ms. Barker also asked the Board to determine which parts of the collective agreement were binding upon Hotchkiss. However, the Act gives us no jurisdiction to make such a determina­tion. Issues concerning whether particular provisions of the collective agreement applied to Hotch­kiss, and whether Hotchkiss breached those provisions, are matters for determination under the arbitration provision included in the collective agreement (or deemed to be so included by section 44 of the Labour Relations Act), as are a number of the other matters raised by the respondents' representatives in their submissions.

30. Mr. Filion and Ms. Barker posed several questions based upon hypothetical fact situa­tions which give rise to a number of interesting issues. However, it is neither necessary nor appropriate for us to comment on those issues as they are not properly before us for adjudication in these proceedings. It is sufficient for purposes of the instant case to indicate that, on the totality of the evidence, we are satisfied that on or about June 17, 1989, the Crown (as represented by the Ministry) transferred to Hotchkiss Forestry Enterprises the aforementioned undertaking; that at the time of the transfer the Union had a collective agreement with the Crown in respect of employ­ees employed in the undertaking; and that as a result, Hotchkiss Forestry Enterprises became bound by that collective agreement by virtue of section 2(1) of the Act.

31. Having regard to the agreement of the parties to File No. 1329-88-R regarding the com­position of the bargaining unit, the Board, pursuant to section 4(1) of the Act, hereby determines that all employees of Hotchkiss Forestry Enterprises who performed the application of herbicide using the chemical Velpar by ground application in Villeneuve and Timbrell Townships, Blind River District, as per tender # BL 8802, save and except those employees otherwise excluded from the collective agreement between the Management Board of Cabinet and O.P.S.E.U., constitute a unit of employees appropriate for collective bargaining.

32. With respect to File No. 1073-88-R, the Board, for the reasons set forth above, hereby declares that the Crown has transferred an undertaking to Smith Forestry Consultants; that at the time of the transfer the Union had a collective agreement with the Crown in respect of employees employed in the undertaking; and that, as a result, Smith Forestry Consultants became bound by that collective agreement by virtue of section 2(1) of the Act.

33. With respect to File No. 1639-88-R, the Board, for the reasons set forth above, hereby declares that the Crown has transferred an undertaking to Nicol Seguin; that at the time of the transfer the Union had a collective agreement with the Crown in respect of employees employed in the undertaking; and that, as a result, Nicol Seguin became bound by that collective agreement by virtue of section 2(1) of the Act.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; October 20, 1989

I am of the opinion that in these cases, as in Dunning Paving Limited, [1989] OLRB Rep. July 714, the Successor Rights (Crown Transfers) Act is being interpreted by the majority in a fashion such as to effectively deny to the respondents freedoms guaranteed under both Section 3 of the Labour Relations Act and Section 2(d) of the Canadian Charter of Rights and Freedoms, as articulated in Part I of the Constitution Act.

The applications seek from the Board a benefit which might properly be sought through the negotiation of more stringent collective agreement provisions regarding the contracting out of work. In the collective bargaining forum the parties themselves would be able to fashion mutually acceptable resolutions of problems raised by the fact situations described in the majority decision. The flexibility which collective bargaining affords would result in resolutions much to be preferred over that of this tribunal which, perhaps necessarily, subordinates practical considerations in favour of a determination as to whose definition of an "undertaking" shall prevail.

I am also of the view that the majority decision both here and in Dunning Paving Limited must not reflect the intent of the Legislators since their effect is to severely inhibit the abil­ity of the Government to enter into and withdraw from various activities at times and under cir­cumstances which, in the view of our elected representatives, best serve the public interest. Yet this will surely be the case since prospective purchasers or contractors from the private sector will be averse to acquiring obligations to a public service union along with the purchase or contract.

The anomalies created by the majority decision and pointed out by Mr. Filion and Ms. Barker are indeed hypothetical in that they have not yet occurred but they are not abstract since the seasonal needs are of a recurring nature. The fact that employees could be frustrated in a wish to be represented by another union or no union, the fact that serious questions could arise as to the nature and extent of liabilities a "new” contractor might inherit from a prior (seasonal) contractor and the certainty that the Crown will be precluded from having the work accomplished at the low­est cost to the taxpayer, all strike me as compelling reasons for the Board to exercise its discretion in the form of a denial of these applications, thus effectively referring the matter back to the par­ties and the collective bargaining process. I would have so ordered and I would have granted Mr. Filion's request for reconsideration of Dunning Paving Limited.