The Ontario Council of the International Brotherhood of Painters and Allied Trades v. W.G. Gallagher Construction Limited
[1989] OLRB Rep. November 1191
0047-89-G; 0170-89-R The Ontario Council of the International Brotherhood of Painters and Allied Trades, Applicant v. W.G. Gallagher Construction Limited, Respondent; Ontario Council of the International Brotherhood of Painters and Allied Trades and International Brotherhood of Painters and Allied Trades, District Council 46, Applicants v. W.G. Gallagher Construction Co. and W.G. Gallagher Construction Limited, Respondents
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: S. Wahl for the applicants; W. Thornton for the respondents.
DECISION OF THE BOARD; November 2, 1989
1We have before us Board File No. 0170-89-R which is an application under section 63 and section 1(4) of the Labour Relations Act ("The Act"). In that application, the applicants, the Ontario Council of the International Brotherhood of Painters and Allied Trades and the International Brotherhood of Painters and Allied Trades District Council 46 ("the Painters Union") allege that there has been a sale of the business from W.G. Gallagher Construction Co. ("W.G.G.") to WG. Gallagher Construction Limited ("Gallagher Limited"), and that Gallagher Limited is a successor employer to W.G.G. In addition, the Painters Union asserts that W.G.G. and Gallagher Limited carry on associated or related activities or businesses under common control or direction and for purposes of the Act ought to be declared as constituting one employer. We also have before us an application under section 124 of the Act (Board File No. 0047-89-G) in which the Painters Union has referred a grievance concerning the interpretation, application, administration or alleged violation of the collective agreement to the Board for final and binding determination. The Painters Union allege that Gallagher Limited is bound to a collective agreement between the Ontario Painting Contractors Association, Acoustical Association Ontario, Interior Systems Contractors Association of Ontario and the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades. Gallagher Limited denies that it is bound to that collective agreement, or that the collective agreement has been violated. It would appear that unless the Painters Union is successful in either its section 63 or section 1(4) application, it is unlikely to succeed with its grievance. We therefore proceeded to deal first with the section 63 and section 1(4) applications.
2The Painters Union's applications under section 63 and section 1(4) of the Act raise a number of factual and legal issues. Chief amongst those issues is the question whether either section 63 or section 1(4) of the Act can be, or need to be applied either retroactively or retrospectively. The parties have agreed that as a preliminary matter the Board ought to proceed with that issue first. The parties have further agreed that their participation in the hearing of the Board to determine that preliminary matter is without prejudice to either parties' position in respect of the other factual and legal issues which remain outstanding.
3The facts underpinning both the section 63 and section 1(4) applications are relatively straightforward. Prior to August 21, 1957, William G. Gallagher carried on business as a sole proprietor under the firm name and style of W.G. Gallagher Construction Co. ("W.G.G."). On August 21, 1957, W.G.G. sold the entire goodwill of the "... business and all its other assets" to Gallagher Limited. Gallagher Limited also assumed all of the liabilities of the business of W.G.G. Gallagher Limited had been incorporated by letters patent in July, 1957. W.G.G. had signed the "working agreement" with the Building and Construction Trades Council of Toronto and Vicinity on February 29, 1956. The purpose and effect of the "working agreement" has been dealt with in a number of Board and Court decisions and need not be dealt with by us in this particular instance. It is sufficient to note that for purposes of this decision (and without prejudice to the position of the parties regarding the effect of the working agreement in this case) any bargaining rights of the Painters Union for employees of W.G.G. or Gallagher Limited must flow from this working agreement. For the purposes of this decision, we have assumed that since the commencement of its business, Gallagher Limited has conducted itself in a manner which is consistent with the obligations of an employer party to the working agreement. The only other relevant evidentiary fact placed before us on agreement of the parties was that in December, 1985, R. G. Gallagher, the President of Gallagher Limited (and the son of W. G. Gallagher) purported to terminate the working agreement in accordance with Article 7 of that agreement.
4For purposes of determining this preliminary matter only, counsel for Gallagher Limited admitted that if Gallagher Limited had obtained all of the assets, and the entire goodwill of W.G.G., and assumed all of the liabilities of W.G.G. in circumstances identical to the events and circumstances which occurred around August 21, 1957, at some point in time after the first statutory provisions dealing with the sale of a business were enacted, a "sale of a business" within the meaning of the Act would have occurred and a successor employer declaration could have been made by the Board. Counsel argued however, that the first statutory provisions in respect of a "sale of a business" or the "successor employer" provisions did not become effective until 1963, more than five years after the "sale" had occurred and therefore the successor employer provisions could not be applied either retroactively or retrospectively to that sale. In so doing, counsel argued that there was a presumption against the retrospective or retroactive application of statutes. He submitted that these presumptions applied and were not rebutted in the present circumstances.
5Similarly, and for purposes of dealing with this preliminary issue only, counsel admitted that if W.G.G. and Gallagher Limited had both existed and carried on business at or after the time the single employer provisions first became effective, that set of circumstances would be encompassed by the current provisions found in section 1(4) of the Act and would satisfy the three preconditions to be Board's discretionary, declaratory power. Again however, counsel asserted that as the first single or "common employer" provisions did not become effective until 1971, the statutory provisions could not be applied retroactively or retrospectively to capture and encompass the events of 1957. Counsel also submitted that as W.G.G. ceased to exist as a business entity in 1957, and did not exist at any time subsequent to the passage of the single or common employer provisions, the current provisions could not be applied to declare W•G.G. and Gallagher Limited as one employer. Counsel again relied upon the presumptions against the retroactive or retrospective application of statutes and argued that the presumptions applied, and were not rebutted in the circumstances before us.
6Counsel for the Painters Union on the other hand argued that the presumptions against retroactivity or retrospectivity did not apply to the facts and circumstances before us. Counsel argued that section 63 and section 1(4) are merely declaratory of a current characteristic or status so that the presumptions do not arise. In this regard, counsel argued that we were charged with interpreting and applying the provisions of the Act. It was his submissions that a proper interpretation or construction of the statutory provisions shows the sections to be declaratory of a current status. Counsel also asserted that these sections are remedial in nature and were enacted to remedy an existing mischief and protect the public and the "working man" so that the presumptions against the retroactive or retrospective operation of statutes did not apply.
7Both counsel referred us to a number of cases and legal writings in which the presumptions against the retroactive or retrospective operation of statutes is addressed. A review of that material shows that the difference between a retroactive and a retrospective statute was accurately set out in an article by E. A. Driedger, Statutes: Retroactive, Retrospective Reflections, 56 Canada Bar Review 264 [1978] wherein Mr. Driedger states at pages 268-269:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.
8In our view, we are not here concerned with the presumption against the retroactive operation of a statute. Neither the Act nor sections 63 or 1(4) contain any provisions which indicate that these sections must be deemed to be the law as of a time prior to their enactment. The issue therefore becomes whether the presumption against retrospectivity applies.
9We begin our analysis by examining the purpose or rationale of the presumption against retrospectivity. That purpose was summarized by Willis J. in Phillips v. Eyre (1870), L.R.6 Q.B at p.23 where he states:
Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. ... Accordingly, the court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature.
10Not all statutes attract the presumption. As outlined by Mr. Driedger in his article, at page 271:
Not all statutes attract the presumption. As outlined by Mr. Driedger in his article, at there are three kinds of statutes that can properly be said to be retrospective, but only one that attracts the presumption. First, there are the statutes that attach benevolent consequences to a prior event; they do not attract the presumption. Secondly there are those that attach prejudicial consequences to a prior event; they attract the presumption. Thirdly there are those that impose a penalty on a person who is described by reference to a prior event, but the penalty is not a consequence of the event; these do not attract the presumption.
11There are therefore two distinct questions which must be answered in this instance. Are sections 63 and/or 1(4) retrospective provisions of the Act, and if so are they retrospective provisions which attract the presumption?
12To answer the first question, Mr. Driedger poses the following question:
Is there anything in the statute to indicate that the consequences of a prior event are changed, not for a time before its enactment, but henceforth from the time of enactment, or from the time of its commencement if that should be later?
13Counsel for the respondent argues that section 63 (formerly sections 47a and section 55, and hereinafter referred to as the successor employer provisions) clearly refers to an event - the sale of a business. Since 1963, the successor employer provisions have attached new consequences to that event. The presumptions against retrospectivity however, precludes this Board from attaching those same types of consequences to an event which occurred prior to 1963, namely the sale of the business from W.G.G. to Gallagher Limited in 1957.
14Counsel for the Painters Union on the other hand argues that the presumption does not apply because the successor employer provision is a provision which is triggered by a status or a characteristic. Although events which occurred prior to the enactment of the successor employer provisions may have created that status or characteristic, the provisions themselves are declaratory of a current status, and have prospective effect only.
15These two diverse submissions from each counsel highlight one of the "exceptions" to the presumption against retrospectivity, or more accurately stated highlight one of the situations in which it can be said that the presumption against retrospectivity does not arise. If the statute attaches to a "characteristic" rather than an "event", the presumption does not apply. Mr. Driedger puts the matter this way:
When can it be said that a construction gives retrospective effect to a statute? In all but the simplest enactments there is set out what may be called the fact-situation, namely, the facts that bring the rule of law into operation. This fact-situation can be set out by defining the subject of the enactment, by describing the circumstances that bring the rule into operation, or partly in the one way and partly in the other. The fact-situation may include a reference to past facts by employing clauses in the past or perfect tenses; the question then arises whether the facts that arose before the enactment bring it into operation, or only those that arose between the time of the enactment and the time of its application.
These past facts may describe a status or characteristic, or they may describe an event. It is submitted that where the fact-situation is a status or characteristic (the being something), the enactment is not given retrospective effect when it is applied to persons or things that acquired that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact-situation is an event (the happening of or the becoming something), then the enactment would be given retrospective effect if it is applied so as to attach a new duty, penalty or disability to an event that took place before the enactment.
16In support of his submissions that the successor employer provisions are declaratory of a current status, counsel for the painters union focused upon the language used in the statute. When first enacted, section 47a (now section 63) stated:
the trade union continues, until the Board ... otherwise directs, to be the bargaining agent for the employees ....
[emphasis added]
Counsel submitted that the use of the word "continues" indicates that the Legislature intended the section to be applied to all "sales", notwithstanding the fact that the "sale" occurred prior to the enactment of the statute. He argued that use of the word "continues" supports his assertion that as originally enacted section 47a (now section 63) was descriptive of a status or characteristic to which new consequences as a result of having that status or characteristic were applied.
17Similarly, in addressing the current provisions of the Act, counsel argued that the use of such words as "is ... bound by the collective agreement" and "is ... the employer for the purposes of the application ...", combined with the use of the words "to whom the business has been sold" show that the legislature is focusing upon a status or characteristic and not an event which has taken place. Counsel asserted that in drafting this section the legislature has directed the Board to focus upon the characteristic of a unionized business that has been sold. He argued that the focus of the section is not the timeliness of the sale, but rather it is the state of being bound to recognize the trade union or the characteristic of being bound to a collective agreement. In further support of his submissions that section 63 was declaratory of a status, counsel emphasized that the Board has no discretion pursuant to that section. The consequences which flow from a "sale" are automatic. He argued that this fact was more consistent with the view that the provision was descriptive of a state of being (with the automatic results that flow from that state of being) rather than a view that the provision relates to an event.
18We do not agree with counsel's submissions. In our view, the provisions of the original section 47a (and the subsequent 47a as amended, section 55 and the current section 63) describe an event and not a characteristic. That event is the sale of the business. These provisions depend on the happening of that event. It is from that event that consequences flow. Although that event may, at least since 1963, result in the attainment of a status or a characteristic, (namely the status of being bound to recognize a trade union) in order for the successor employer provisions to have the effect which counsel urges upon us, that status or characteristic must have been acquired before the original section 47a was enacted and the status or characteristic must have existed at the time the successor employer provisions were enacted and the declaration sought.
19In this case, when the law was enacted in 1963 it cannot be said that Gallagher Limited had the "characteristic" or "status" of a "successor employer" as that term is understood and applied in the Act. There was no such concept as the status or characteristic of being a "successor employer" in the Labour Relations Act sense of the word. That concept was new. At the time section 47a was enacted, the only "characteristic" which Gallagher Limited had, was the characteristic of being a business entity which several years earlier had acquired the assets and liabilities of W.G.G. To hold otherwise would undermine the very reasons for the presumption against retrospectivity as enunciated in Philips v. Eyre, supra. In order for the presumption against retrospectivity not to apply by reasons of the fact that the statute attaches to a characteristic and not an event, the characteristic, (in this case the characteristic of continuing to be bound to recognize a trade union) must have existed with Gallagher Limited at the time the enactment came into force.
20Next we turn to examine section 1(4). In this regard both counsel agreed that section 1(4) attaches to a characteristic rather than an event. We agree with that assessment.
21Counsel for Gallagher Limited submitted however that because the status or characteristic of being "a single employer" did not exist at any time after the single employer provisions were enacted in 1971, those provisions cannot be applied retrospectively to a characteristic which existed prior to enactment of section 1(4).
22Counsel for the Painters Union on the other hand emphasized the use of the words "whether or not simultaneously" in section 1(4). He argued that if the presumption applied he argued it did not because the section was declaratory of a status or characteristic) those words rebutted the presumption. He also submitted that those words pointed to a "time continuum" unrelated to the enactment of section 1(4). As a result, it was argued, section 1(4) applies throughout time. As it is unnecessary for the business entities to have carried on their activities or businesses simultaneously, it is equally irrelevant that one of those business entities may have carried out its business or activities prior to the enactment of section 1(4).
23In the alternative, it was submitted by counsel for the applicant that the sole proprietorship still existed because the person who was the sole proprietor still exists. Counsel argued that the proprietorship did not end upon the incorporation of Gallagher Limited. A sole proprietorship is the business extension of W.G. Gallagher and it exists so long as W.G. Gallagher exists. The mere sale or transfer of goodwill, assets and liabilities from W.G.G. to Gallagher Limited did therefore not put an end to the sole proprietorship. It was submitted that in effect, at all relevant times, Mr. Gallagher has put into effect the business decision as to whether to carry out his activities through the sole proprietorship (W.G.G.) or the limited company (Gallagher Limited). Therefore, as there were two entities in existence at the time section 1(4) was enacted, and because section 1(4) is declaratory of a characteristic, the presumption against retrospectivity is not applicable.
24We do not agree with either of these submissions. In our view, the sole proprietorship does not continue to survive simply because Mr. Gallagher continues to exist. From a practical point of view, the sole proprietorship no longer exists because it is not operating, has no assets or liabilities and no goodwill - all of which were transferred to Gallagher Limited in 1957. At any one time there has only been one entity functioning or operating in the construction industry. Originally that entity was a sole proprietorship, W.G.G. Since 1957, that entity is an incorporated company, Gallagher Limited. Gallagher Limited replaced W.G.G. and substituted its limited liability for the liability of the sole proprietorship. Upon that replacement or substitution the sole proprietorship ceased to exist.
25There were not therefore two entities in existence in 1971 when section 1(4) was first enacted. Section 1(4) has always required as a precondition before a "single employer" declaration can be made the existence of at least two entities. Before a declaration regarding the "status" or "characteristic" of being a "single employer" can be made two entities must exist. In 1971 when section 1(4) was first enacted the "characteristic" of being a single employer did not exist with Gallagher Limited because W.G.G. no longer existed. Since 1971 that state of affairs has not altered. W.G.G. has not re-appeared as an entity with whom Gallagher Limited can acquire the characteristic or status of being declared as a single employer. As the necessary preconditions to the characteristic of being a single employer did not exist in 1971, and have not existed since that time, it would be contrary to the presumption against retrospectivity to reach back to 1957 and attach that "characteristic" to a past state of affairs which existed when the "characteristic" of being declared a single employer for purposes of the Labour Relations Act was unknown. In this regard, we concur with and adopt the words of E. A. Driedger when he says:
Thus, the position appears to be that whenever the operation of a statute depends upon the doing of something or the happening of some event, the statute will not operate in respect of something done or in respect of some event that took place before the commencement of the statute; but if the operation of the statue depends merely upon the existence of a certain state of affairs, the being rather than the becoming, the statute will operate with respect to a status that arose before the commencement of the statute, if it exists at that time.
As the status did not exist at the time section 1(4) was enacted, section 1(4) cannot be applied.
26Neither do we concur with the submissions that the use of the words "whether or not simultaneously" are sufficient to rebut the presumption against the retrospective application of statutes. In Upper Canada College v. F. J. Smith (1920) .... it was stated,
if the language of the statute sufficiently expresses the intention of the legislation that it should govern all actions, without exception, begun before or after the date fixed by the statute itself for the commencement of its operations.
That intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such a character as in themselves to rebut the presumption that it is intended only to be prospective in its operation.
27In order to rebut the presumption the words of the legislature must be very clear (see Mantelli v. Mantelli, (1981), 130 D.L.R. (3d) p. 300). In our view the use of the words "whether or not simultaneously" is not such a clear expression that the legislature intended the section to be applied retrospectively. In our view, the reasons or rationale for the inclusion of those words was succinctly stated in Warren Steeplejacks Limited, [1989] OLRB Rep. March 309 at paragraphs 17-19 where the Board rejected the argument that section 1(4) required the entities to exist contemporaneously. That case does not however support the proposition that the words "whether or not simultaneously" are broad enough to encompass a fact situation such as the present. In view of the presumption against the retrospective operation of statutes, and within the context of section 1(4) and its legislative history, we are of the view that although the entities need not exist contemporaneously, both must certainly have existed since the enactment of section 1(4). The use of the words "whether or not simultaneously" refers only to the fact that entities, which have existed at least, since 1971 need not have existed and/or carried out their activities simultaneously since that time. These words do not go so far as to allow this Board to declare Gallagher Limited a single employer together with W.G.G. - an entity which had ceased to exist and/or carry out activities long before section 1(4) was first enacted.
28Counsel for the respondent also made an alternative argument in respect of the application of section 1(4) to these facts. Counsel submitted that if the Board were to interpret section 1(4) as referring to an event, namely the "becoming" of a common single employer, then the "event" which gives rise to the application of section 1(4) to the case before us is the sending of the letter in December 1985. That letter purports to give notice of the termination of the collective bargaining relationship. It was submitted that the letter was recognition by Gallagher Limited that it was bound to recognize the Building and Construction Trades Council of Toronto and Vicinity and its affiliates. That event occurred in 1985 well after the original single employer provisions of the Act were passed.
29We do not accept counsel's submissions regarding the effect of the letter sent in December 1985. It may be that in December 1985 Gallagher Limited believed it was bound to recognize the Building and Construction Trades Council of Toronto and Vicinity and its affiliated unions. In our view, however, it was not so bound. Gallagher Limited's mistaken belief cannot be the source of the applicant's bargaining rights. In fact, Gallagher Limited could only be bound to recognize the applicant through one of several circumstances, none of which existed in December 1985. Gallagher Limited could have been bound to recognize the applicant had it entered into a voluntary recognition agreement. This it has not done. The December 1985 letter purporting to terminate the working agreement is not such a voluntary recognition agreement. Gallagher Limited could also have been bound had the applicants applied to be certified pursuant to the provisions of the Act. That also is not the case. The only other means by which Gallagher Limited could be bound to recognize the applicant is through the application of section 63 or section 1(4). We have already indicated that section 63 cannot be applied retrospectively to encompass the "sale" from W.G.G. to Gallagher Limited which occurred in 1957. Further, we are of the view that the presumptions against the retrospective operation of statutes prohibits the Board from applying either section 1(4) or section 63 with the ultimate result that Gallagher Limited would be bound to recognize the applicant. In this regard we wish to address counsel's argument that even if the Board were to conclude that the presumption against retrospectivity would normally apply to either provision, it ought not to be applied because the Act, (and in particular these provisions) is not a prejudicial statute but rather is a remedial, beneficial statute, enacted to protect the public.
30Once again we refer to Mr. Driedger's article where he concludes the article by summarizing two situations when the presumption against retrospectivity will not apply.
The presumption does not apply unless the consequences attaching to the prior event are prejudicial ones, namely, a new penalty, disability or duty.
The presumption does not apply if the new prejudicial consequences are intended as protection for the public rather than as punishment for a prior event.
31In addressing this matter, counsel for the respondent submitted that the effect of these provisions is not to impose or create a "new" obligation or duty upon Gallagher Limited. It was argued that the effect of the section 63 declaration is only to declare that the known and existing obligations and duties of W.G.G. to recognize the union were transferred to Gallagher Limited when the sale took place. Similarly, the effect of a section 1(4) declaration is to confirm that the existing obligations and duties to recognize the union were not lost merely because of a new corporate entity. These sections confirm the existing rights of the employees and their trade union and do not impose any new obligations or duties.
32We do not agree. As a matter of law the sole proprietorship (W.G.G.) has a separate legal personality from the incorporated company (Gallagher Limited). The obligations or duties of one are not necessarily the obligations or duties of the other. In our view, the requirement that Gallagher Limited recognize the applicant by reason of a declaration made under section 63 or section 1(4) of the Act is not merely a continuation of existing duties or obligations, but is the imposition of new duties or obligations.
33Counsel for the applicant also asserted that the presumption against retrospectivity does not apply where the statute is remedial and designed to remedy an existing mischief. In our view, that broad proposition is not supported by any of the authorities cited by counsel. Similarly, we do not agree with counsel's assertions that we must first look as to whether the enactment is remedial, and it is only after having made that determination that we can turn to determine whether the presumption against retrospectivity applies. In our view, the appropriate analysis is to start with the presumption and to determine whether it applies and/or whether it has been rebutted. In so doing resort can be had to the objects and purposes of the Act including its remedial nature. A review of the jurisprudence indicates that where the object of the enactment is to protect the public, Courts have held that the presumption has been rebutted or does not apply. It is that portion of the argument which we propose to address. As Mr. Driedger stated in his article and at page 275:
In the end, resort must be had to the object of the statute. If the intent is to punish or to penalize a person for having done what he did, the presumption applies, because a new consequence is attached to a prior event. But if the new punishment or penalty is intended to protect the public, the presumption does not apply.
34We agree that section 1(4) and section 63 are remedial provisions. We do not view either section 63 or section 1(4) as "punitive" legislation designed to punish a person for "having done what he did". We do not agree however, that section 63 or section 1(4) are "intended to protect the public" in the manner in which that phrase has been interpreted and applied in cases where the presumption was not applied because a statute was designed to protect the public.
35A brief review of the cases which deal with this "exception" to the presumption is necessary in order to understand when the "exception" applies or the presumption against retrospectivity is effectively rebutted.
36R. V. Vine (1875), L.R. 10 Q.B. 195 dealt with the statute which prohibited individuals who had been convicted of a felony from selling liquor. The statute provided:
Every person convicted of a felony shall for ever be disqualified from selling spirits by retail, and no licence to sell spirits by retail shall be granted to any person who shall have been so convicted...
The majority of the Court held that the purpose of the enactment was to protect members of the public from the dangers of public-houses run by individuals of dubious character. The purpose of the enactment was not to further punish individuals who had been convicted of a felony.
If one could see some reason for thinking that the intention of this enactment was merely to aggravate the punishment for felony by imposing the disqualification in addition, I should feel the force of Mr. Poland's argument, founded on the rule which has obtained in putting a construction upon statutes - that when they are penal in their nature they are not to be construed retrospectively, if the language is capable of having a prospective effect given to it and is not necessarily retrospective. But here the object of the enactment is not to punish offenders, but to protect the public against public-houses in which spirits are retailed being kept by persons of doubtful characters ... the legislature has categorically drawn a hard and fast line, obviously with a view to protect the public, in order that places of public resort may be kept by persons of good character; and it matters not for this purpose whether a person was convicted before or after the Act passes, one is equally bad as the other and ought not to be intrusted with a licence.
37Lush, J. dissented as he was of the view that the statute was penal in nature. It was his interpretation that the result of that enactment was that persons who had previously been convicted would forfeit their licences. As a result he was of the view that the presumption against retrospectivity would apply.
38More recently, the Supreme Court dealt with this "protection of the public" exception in Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 57 D.L.R. (4th) 458 (SCC). The enactment dealt with in that instance empowered the Alberta Securities Commission to disqualify a person on account of past conduct or conduct which occurred before the effective date of the statute. The Supreme Court referred to Mr. Driedger's text, Construction of Statutes, 2nd ed. (1983) and reviewed a number of authorities including R. V. Vine, supra. It also reviewed Re A Solicitor's Clerk, [1957] 3 All E.R. 617 (O.B.) which had been relied upon by the Alberta Court of Appeal as authority for the proposition that where the objectives of a statute are not "penal" but "protective" the presumption against retrospectivity does not apply. At page 471 the Supreme Court states:
In Re A Solicitor's Clerk, [1957] 3 All E.R. 617 (Q.B.), a statute concerning the practice of law by solicitors was amended so as to enable an order disqualifying a person from acting as a solicitor's clerk if such person had been convicted of larceny, embezzlement or fraudulent conversion of property. A clerk who had been convicted of one of those offences before the coming into effect of the new law, contested his disqualification on the basis that the law was being given a retrospective effect. The Court of Queen's Bench dismissed these arguments. Lord Goddard C.J. found that there was no retrospective effect since the real aim of the law was prospective and aimed at protecting the public. He wrote at p. 619:
In my opinion, however, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.
39The Supreme Court in Brosseau concluded:
The provisions in question are designed to disqualify from trading in securities those persons whom the Commission finds to have committed acts which call into question their business integrity. This is a measure designated to protect the public, and it is in keeping with the general regulatory role of the Commission. Since the amendment at issue here is designed to protect the public, the presumption against the retrospective effect of statutes is effectively rebutted.
In this instance, counsel for the Painters Union has argued that section 63 and section 1(4) of the Act are not penal but are beneficial and protective of the working man so that the presumption does not apply.
40The purposes and objectives of section 63 and section 1(4) have been articulated by the Board in a number of cases. For example in Thorco Manufacturing Limited 65 CLLC ¶16,052, the Board stated:
It is manifest that the object sought to be attained by section 47a of the Act is to maintain and continue the bargaining rights of a union for the employees in the bargaining unit represented by it, when the business or parts thereof in which such employees are employed is sold...
The successor employer provisions are designed to prevent the subversion of bargaining rights. The section is also designed to preserve the structure of the bargaining relationship.
41Similarly, the purpose of section 1(4) was enunciated by the Board in Industrial Mines Installations Ltd., [1972] OLRB Rep. Dec. 1029 where the Board stated:
"Section 1(4) is obviously contemplated to cure the mischief that results from being unable to properly define and tie down the employment relationship. In many situations where companies have a close relationship an employee may be shifted from one company to another so that his employment relationship, at any given period, is difficult to define in terms of one employer. So too, the number of employees employed by one of those companies at any given time may be impossible to ascertain.
Prior to the enactment of section 1(4), where such situations existed, it was difficult to define the employment relationship and to determine the proper employer for certain purposes under the Act. For example, in certification proceedings it was necessary to determine the proper employer in order to determine whether the union had sufficient membership among the employees to be certified.
Also, in some situations where a union had been granted bargaining rights for the employees of one employer, the employees could be shifted to another associated or related employer with the result that the bargaining rights which had been earned by the trade union for the employees was lost. So too, in the case where associated or related employers joined in a common enterprise and used one work force, which was shifted and transferred from time to time, the certification with respect to one employer only was, in effect, a certification of a segment of the total enterprise, and could seriously impair the totality of the business operations by inhibiting the shifting of employees between union and non-union segments of the enterprise. It was also possible in situations where associated or related companies carried on a single enterprise that employees of the separate legal entities could be represented by different trade unions so as to cause the bargaining rights within the single enterprise to be unduly fragmented. An example of the type of situation where section 1(4) was applied is found in Walters Lithographing Company Limited, et al, [1971] OLRB Rep. July 406.
It is in these types of situations that the interests of the parties in having the Board treat separate employers as constituting one employer for the purpose of the Act became apparent, and it is for that reason that section 1(4) was enacted."
42We agree that there is a beneficial component to both these enactments. These sections provide, inter alia, for the preservation of bargaining rights. However, we do not believe that one can characterize these provisions as "beneficial" or "protective" in a sense that is envisioned in Brosseau v. Alberta Securities Commission, supra and the other cases that support this exception to the presumption. Most statutory enactments benefit a given group and, in some cases may have a corresponding negative effect on another group as a result of that benefit. "Beneficial" or "protective" in the context of the presumption against retrospectivity however, is much more specific. In this regard, the cases indicate that the presumption will not be applied to statutes that protect the "public" from some perceived harm. Section 63 and section 1(4) undoubtedly benefit trade unions and their members who are members of the public. Trade unions and their members however, are not representative of the "public" as a whole. In our view, section 63 and section 1(4) were passed by the legislature in an attempt to balance an inequality between two groups within society. Indeed, it can be said that the entire scheme of the Labour Relations Act is an attempt to balance rights between two competing groups. Although it can be said that "the public" has an interest in harmonious labour relations, it cannot be said that the legislations is specifically aimed at protecting the public from some perceived harm. In our view, therefore the proposition that the presumption against retrospectivity ought not to be applied because we are dealing with a statute which is not "penal" but "protective" of the public is not applicable.
43For these reasons, notwithstanding our assumption that:
(a) a sale of a business within the meaning of section 63 of the Act occurred at about the time of the incorporation of Gallagher Limited, and
(b) a single or common employer relationship existed between W.G.G. and Gallagher Limited at or about the time of the incorporation of Gallagher Limited,
we are of the view that neither section 63 nor section 1(4) of the Act can be applied retrospectively to these respondents. The application pursuant to section 1(4) and section 63 of the Act is therefore dismissed.