Canadian Guards Association v. Pinkerton's of Canada Ltd., 1989 CanLII 3069

Canadian Guards Association v. Pinkerton's of Canada Ltd.

[1989] OLRB Rep. July 783

0068-88-R; 0767-88-R; 1149-88-R; 1484-88-R; 1552-88-R; 2261-88-R; 2666-88-R Canadian Guards Association, Applicant v. Pinkerton's of Canada Ltd., Respondent v. Richard Bibeault, Intervener; Canadian Guards Association, Applicant v. Pinkerton's of Canada Ltd., Respondent; Canadian Guards Associa­tion, Applicant v. National Protective Services Company Limited, Respondent v. George Faulkenburg, Intervener; Canadian Guards Association, Applicant v. Board of Management for the Metropolitan Toronto Zoo, Respondent v. Interna­tional Union United Plant Guards Local 1962, Intervener #1 v. Ron Saxton, Intervener #2; Canadian Guards Association, Applicant v. Burns International Security Services Limited, Respondent v. Gordon A. Southorn, Intervener; Canadian Guards Association, Applicant v. Wackenhut of Canada Limited, Respondent v. Shane Freeman, Intervener; United Steelworkers of America v. Pinker­ton's of Canada Ltd., Respondent v. Larry Bishop, Intervener

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

APPEARANCES: B. Shell and P. Turtle for the applicants and the intervening employees; M. J. Gleason for Pinkerton's of Canada Ltd.; George Monteith for Board of Management for the Met­ropolitan Toronto Zoo; Michael Gordon and Peter Whalen for Burns International Security Ser­vices Limited; Brian P. Smeenk for Wackenhut of Canada Limited; Harvey Beresford, Susan McDermott and W. J. Gretton for Inco Limited; no one appeared for National Protective Services Company Limited.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; July 25, 1989

11. These are seven applications for certification which were filed with the Board between April 11, 1988, and January 26, 1989, in respect of over a thousand security guards, hundreds of whom have expressed an appetite for collective bargaining by joining one of the applicant trade unions. This decision pertains to a motion by some of the parties that the Board postpone the hear­ing of issues which have arisen in these applications with respect to the effect of the Canadian Charter of Rights and Freedoms (the "Charter") on part of section 12 of the Labour Relations Act.

22. In a decision dated June 27, 1988 in respect of File No. 0068-88-R (Pinkerton's of Canada Ltd., [1988] OLRB Rep. June 613), this panel of the Board wrote, in part, as follows:

1. This an application for certification. In Appendix A to its (Form 10) Reply, the respondent submitted that the application should be dismissed on the following grounds:

a) Respondent's labour relations fail within the exclusive constitutional jurisdiction of the federal government and consequently are not subject to this Board's jurisdiction;

b) Pursuant to section 12 of the Act, Applicant has no status to seek or acquire certifica­tion of Respondent's security guards by reason of Applicant's avowed affiliation with an organization that admits to membership persons other than security guards;

c) Applicant's membership evidence is tainted "in toto" by reason of the active and illicit participation of a representative of management in Applicant's organizing campaign.

2. Prior to the June 1, 1988 hearing of this matter, the parties' representatives met with a Board Officer and, without prejudice to the respondent's position regarding the foregoing grounds, reached agreement on certain matters, including an agreement that notwithstanding the consti­tutional jurisdictional issue, the parties would request the Board to hear argument regarding section 12 first, before considering any other issues.

3. By letter dated May 26, 1988, counsel for the applicant advised the Board, the Attorney Gen­eral for Ontario, the Attorney General for Canada, and respondent's counsel as follows in respect of this matter:

I am counsel to the Canadian Guards Association in the above captioned matter. An Application for Certification with respect to certain employees of the respondent was filed on April 11, 1988. I have conferred with counsel for the respondent in this mat­ter and we have agreed that upon the commencement of the certification hearings in Ottawa on June 1, 1988 before the Ontario Labour Relations Board the first issue to be addressed will be the preliminary objection raised by the respondent that the Board should refuse to certify the applicant trade union pursuant to s.12 of the Labour Relations Act.

In reply to the respondent's position the trade union confirms that it will be taking the position that s.12 of the Act does not apply to bar certification because the trade union referred to above is not "affiliated, directly or indirectly, with an organization that admits to membership persons other than guards". Alternatively the union will be arguing that a portion of s.12 should be struck down as it violates the guarantee of freedom of association contained in s.2 (d) of the Canadian Charter of Rights and Freedoms. The trade union takes the position that the portion of s.12 which states no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employer's organization shall be required to bargain with a trade union on behalf of any person who is a guard, if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly with an organization that admits to membership persons other than guards" consti­tutes a violation of the Charter. The union is not challenging that portion of s.12 which prohibits the inclusion in a bargaining unit with other employees a person employed as a guard to protect the property of an employer as constituting a violation of the Charter of Rights and Freedoms.

4. At the June 1, 1988 hearing of this matter, counsel advised the Board that they had further agreed to request the Board to hear and determine the issue of whether or not the applicant (also referred to in this decision as the "CGA") is "affiliated, directly or indirectly, with an organization which admits to membership persons other than guards" (the "section 12 issue") on the understanding that if the Board decided that it was, evidence and argument would be presented at a later date concerning the Charter issue. Since it appeared to the Board that the procedure suggested by the parties might expedite the hearing of the matter by avoiding unnec­essary evidence and argument, the Board acceded to that request. Consequently, this decision deals only with the section 12 issue.

5. It is common ground between the parties that "the guards covered by the application protect the property of employers within the meaning of section 12 of the Act, and in accordance with the Board's caselaw dealing with conflict of interest, such that their duties include the surveil­lance and monitoring of both property and employees of employers". It is also common ground between the parties that the applicant has entered into the following contract (the "Service Con­tract") with the United Steelworkers of America (the "USWA").

[The quotation of the Service Contract, which appears at pages 614-16 in the report of that deci­sion, has been omitted.]

10. Section 12 provides as follows:

The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.

The purpose of that section is to protect against conflicts of interest between guards' duties to the employer whose property they are obliged to protect, and their expected loyalty to the employer's employees: see, generally, Kimberly Clark of Canada Ltd.,[1987] OLRB Rep. Oct. 1255; Citicom Inc., [19851 OLRB Rep. Jan. 57; Wells Fargo Armcar, Inc., [19811 OLRB Rep. July 1046; and Canadian Paperworkers Union, Local 4 v. Fraser inc., supra.

11. It is unnecessary in the instant case to attempt to exhaustively define the term "affiliated". It is sufficient for the purposes of this decision to indicate that, in our view, the portion of section 12 which is in issue in these proceedings covers contractual arrangements of the type contained in the Service Contract, and is not confined to situations in which unions are bound together or controlled by constitutional obligations. Thus, having duly considered the submissions of coun­sel and all of the material which has been placed before us, we have concluded that the appli­cant is "affiliated, directly or indirectly, with an organization which admits to membership per­sons other than guards", namely, the USWA. Under the terms of the Service Contract, the USWA is obliged to provide all support and technical services to the CGA and to the CGA's members which the USWA provides to its own chartered local unions and to its own members. It is also required to make available to the CGA the USWA offices in Ontario. As a result of the latter provision, guards in the employ of the respondent were invited (by the letter quoted above), as part of the applicant's organizing campaign, to call a number which is answered "United Steelworkers of America". At least two-thirds of the dues paid by members of the CGA flow through to the USWA under the terms of the Service Contract, which also requires the CGA to provide the USWA with a complete list of all CGA bargaining units and, where possible, with a list of the names, addresses, and telephone numbers of all members of the CGA. It also obligates the CGA to co-operate and support the USWA in complying with all sections of the Act in the event that the USWA decides to seek to become the legal bargaining agent with respect to any or all locals of the CGA. The contract further stipulates that at least one employee or agent of the USWA shall be invited to attend every meeting of all locals of the CGA and that the employee or agent shall be entitled to participate in such meetings. Thus, in view of the very close relationship which exists between the CGA and the USWA under the terms of the Service Contract, we have concluded that the CGA is "affiliated, directly or indi­rectly," with the USWA within the meaning of section 12 of the Act.

12. For the foregoing reasons, the Board has concluded that unless the applicant's Charter argu­ment is successful, section 12 will preclude the Board from certifying the applicant and requiring the respondent to bargain with the applicant on behalf of any of the respondent's guards, because the applicant is affiliated with an organization that admits to membership persons other than guards.

33. In an unreported decision dated December 7, 1988 in respect of File No. 1552-88-R, another panel of the Board chaired by the present Vice-Chair wrote, in part, as follows:

8. In the instant case, counsel for the applicant advised the Board that although he does not agree with the Pinkerton's decision, he accepts it as a decision of the Board and does not seek to relitigate the affiliation issue in the context of this case. The Charter argument asserted by the CGA in the Pinkerton's case is that a portion of section 12 violates the guarantee of freedom of association contained in section 2(d) of the Canadian Charter of Rights and Freedoms, and is not "saved" by section 1 of the Charter. The impugned part of section 12 provides as follows: ". . . no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is char­tered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than gnards." That same issue has also been raised by the applicant in the instant case and in a number of other certification applications. In order to facilitate the determination of that matter, applicant's counsel has requested the Board to list this application and all of those other applications to be heard together in respect of the Charter argument. That request was made by applicant's counsel at the November 3, 1988 hearing of this matter, and was confi­rmed in the following letter dated November 8, 1988:

Re: Canadian Guards Association and Pinkerton's of Canada Ltd.; Application for Certification; Board File: 0068-88-R; Our File: OLRB-649A

Canadian Guards Association and Pinkerton's of Canada Ltd.; Application for Certification; Board File: 0767-88-R; Our File: OLRB-687

Canadian Guards Association and National Protective Services Company Limited; Application for Certification; Board File: 1149-88-R; Our File: OLRB-699

Canadian Guards Association and Board of Management For The Metropolitan Toronto Zoo; Application for Certification; Board File 1484-88-R; Our File OLRB-713

Canadian Guards Association and Burns International Security Services Limited; Application for Certification; Board File: 1552-88-R; Our File: OLRB-716

We are counsel to the applicant Canadian Guards Association in the above-captioned matters which are all outstanding before the Ontario Labour Relations Board. In all of these matters, an issue which must be determined by the Board before it can certify the applicant as bargaining agent for any of the respondents' employees is whether that portion of s.12 of the Labour Relations Act which precludes the certification of any union which is affiliated with an organization that admits to membership persons other than guards is of no force and effect as it is a violation of s.2(d) of the Charter of Rights and Freedoms. The applicant in all of the above-captioned matters takes the position that the portion of s.12 referred to above is an unconstitutional violation of freedom of association guaranteed by the Charter, and it is not "saved" by the provi­sions of s. 1 of the Charter.

In order to make a determination as to the constitutionality of s.12 of the Labour Relations Act it will be necessary for the applicant and the respondent in each case to adduce detailed evidence of constitutional facts. Further, it will be necessary in each case for both parties to adduce evidence with respect to the "justification" of any pos­sible infringement of the Charter pursuant to s.l of the Charter of Rights.

In order to avoid unnecessary duplication of proceedings and of evidence and argu­ment in this matter, the applicant respectfully requests that the Board convene a sin­gle hearing to address the Charter issue at which all parties may lead evidence and make representations before the Board. The applicant respectfully requests that the Board immediately schedule twenty to thirty hearing dates before July 1989 on a pre­emptory [sic] basis.

Further, the applicant respectfully requests that the Board schedule a pre-hearing conference before January 1,1989 to be attended by all parties so that any prelimi­nary and procedural issues can be dealt with.

I have sent copies of this letter to all interested parties of whom I am aware. Should the Board determine that any other person is an interested party in this matter, please ensure that such party receives a copy of this letter and future correspondence from the Board.

Thank you for your attention and assistance.

9. Copies of that letter were sent by the Registrar to each of the other parties to the applications referred to in the letter, and their counsel, as well as to the other interested party identified by counsel, along with the following letter:

I am enclosing herewith a copy of a letter dated November 8, 1988, from the solicitor for the applicant in the above matters, with respect to which I would appreciate receiving your written comments, if any, by November 21,1988.

10. A number of responses have been received. In his written submissions, counsel for the respondent [Burns International Security Services Limited] indicated that his client is not opposed to a single hearing, but does not agree that the dates should be set on a peremptory basis. The respondent also agrees that a pre-hearing conference is appropriate, but requests that it be held in January. Counsel for the United Plant Guard Workers supports the applicant's request for a pre-hearing conference and for a single hearing to address the Charter issue. Coun­sel for the Board of Management for the Metropolitan Zoo has advised the Board that his client is prepared to consent to a single hearing to address the constitutionality of section 12 on the condition that all other parties agree to participate. However, he has also expressed opposition to dates being set peremptorily. Counsel for National Protective Services contends that the request is premature in that the CGA has also filed an application for certification with the Canada Labour Relations Board (the "CLRB") in respect of its employees, and is awaiting a decision by the CLRB on the constitutional aspect of that application. Accordingly, counsel for National Protective Services requests that the Board defer any hearing with respect to the Char­ter argument until the CLRB has ruled on the issue of its constitutional jurisdiction. Correspon­dence from counsel for Pinkerton's of Canada raises a similar concern regarding the potential for conflicting decisions and unnecessary expenditures, in view of the fact that the applicant has also applied to the CLRB in respect of his client's employees working in Ottawa. Counsel advised the Board that if the CLRB decides to proceed with the certification application pres­ently pending before it between the applicant and his client, he intends to request this Board to stay all proceedings in respect of the provincial application. He also indicated that his client has no objection to the Board convening a single hearing to consider the Charter issue provided that the CLRB does not determine to proceed with the federal application. However, he requested that the Board initially confine that hearing to the issue of whether section 12 infringes any sub­stantive right guaranteed by the Charter, with the issue of the applicability of section 1 of the Charter being dealt with subsequently in the event that the Board finds an infringement. Pinker­ton's of Canada is also opposed to dates being fixed without consultation, and requests that the pre-hearing conference and the hearings be held in Ottawa.

11. In a letter dated December 2,1988, counsel for the applicant acknowledged receipt of the correspondence described in the preceding paragraph, and reiterated the positions asserted in his letter of November 8,1988.

12. The following letter has been received from counsel for Inco Limited:

We are counsel for Inco Limited and have received a copy of a letter dated November 8th from Brian Shell, counsel for the United Steelworkers of America, in connection with the forthcoming Charter challenge to Section 12 of the Labour Relations Act.

As you know, the United Steelworkers of America and the Canadian Guards Associ­ation entered into a service contract which the Board has determined, in the Pinker­ton's of Canada Ltd. case, to be contrary to Section 12 of the Act. Inco Limited has a collective bargaining relationship with the Canadian Guards Association with more than 90 guards in the bargaining unit, the largest, we believe, private sector guards unit in Canada. In addition, the United Steelworkers is the bargaining agent for all mining and smelting employees (in excess of 6500) for Inco Limited in the Sudbury district.

As a result of the Steelworker/Guards service contract, Inco Limited has had numer­ous discussions with both the Canadian Guards Association and the United Steel­workers of America concerning the application of Section 12 to this relationship.

For this reason, Inco Limited seeks status to attend before your Board and participate in the hearing on the Charter issue raised by Mr. Shell in his November 8th letter. It would be the intention of Inco Limited to call evidence, participate in the cross-exam­ination of witnesses and make detailed submissions. As you can appreciate, the deci­sion will have a direct affect [sic] on the relationship between Inco Limited and the Canadian Guards Association. We believe that by combining the interests in one hearing, the Board will avoid a multiplicity of hearings inasmuch as this matter will have to be determined to the satisfaction of Inco Limited in its own situation.

We look forward to a favourable response and, should it be necessary, will be pleased to make additional and detailed submissions with respect to the granting of Intervener status....

13. Having duly considered all of the submissions which have been received, we have concluded that this application should be listed for hearing together with File Nos. 0068-88-R, 0767-88-R, 1149-88-R, and 1484-88-R in respect of the Charter argument, and that a pre-hearing conference should be convened to facilitate that hearing. Accordingly, the Registrar is directed to schedule a pre-hearing conference in respect of this file and those other four files, and to list all five of them for hearing together in respect of the Charter argument (described in paragraph 8 of this decision), on such dates as are recommended by the pre-hearing conference Vice-Chair. Notice of hearing and notice of the pre-hearing conference is also to be given to Inco Limited, and to Wackenhut of Canada Ltd. (in view of the fact that the CGA filed a certification application (File No. 1944-88-R) in respect of some of its employees on November 15, 1988).

44. By letter dated February 9, 1989, counsel for the applicants and the intervening employees notified the Board and the representatives of the other parties that reliance will also be placed upon section 15 of the Charter in challenging the constitutional validity of the impugned portion of section 12 of the Act.

55. The pre-hearing conference directed by that decision was convened before Vice-Chair S. A. Tacon on February 10, 1989. In accordance with the Board's usual practice, Vice-Chair Tacon subsequently prepared a Memorandum that was forwarded by the Registrar to each of the parties and their representatives. The following is some of the information included in that Memo­randum:

The following represents the various agreements and undertakings from the Pre-Hearing Con­ference on February 10, 1989. For convenience, I have grouped the items under headings which I regarded as appropriate.

SUBSTANTIVE ASPECTS

Agreed: "Test" cases are to be selected and their facts agreed on so that the evidence to be lead at the hearing will be restricted to the "Charter" issue. The factual agreements on the "test" cases shall only pertain to the "Charter" issue.

Agreed: The parties are to be bound with respect to the "Charter" aspect of the decision result­ing from the "test" cases in their respective certification applications. It is understood that this agreement would not preclude any party from seeking judicial review of the Board's decision on the Charter. Moreover, the parties are to be bound only with respect to the "Charter" aspect of the Board decision and may raise other issues in their respective certification applications (e.g., timeliness, bargaining unit description, challenges to the list, etc.).

Agreed: The intervener Inco would not be precluded from leading evidence units situation (the USWA represents the production unit and the CGA represents the guards). The applicants do not assert that Inco is precluded, by bargaining with the CGA, from raising the s.12 issue....

PROCEDURAL ASPECTS

Scheduling:

Agreed: hearings to be scheduled at a rate of 3 days per week (perhaps 4 on occasion and pre­ferably not Fridays)

Agreed: 40 hearing dates to be set down commencing in September 1989 and continuing each week thereafter except that there is to be a break of approximately one week following the first 36 days of hearing; it is understood that there may be the occasional cancellation for reasons of emergency, illness, etc.

Agreed: if the hearing is not completed within the 40 days, the matter is to continue from day to day thereafter until finished

Agreed: some hearings to be scheduled in Ottawa; specific dates to be determined; counsel to discuss further the number of such dates and which dates would be appropriate to schedule in Ottawa

The Hearing

Agreed: The applicants shall proceed first with respect to evidence re: s. 15 and s. 2(d) of the Charter. The respondents shall lead evidence in response re: s. 15 and s. 2(d) and evidence re: s. 1. The applicants shall then lead reply evidence on s. 15 and s. 2(d) and evidence in response re: s. 1. Finally, the respondents shall lead reply evidence re: s. 1.

Agreed: The respondents shall determine amongst themselves their internal order of proceeding re: leading evidence. The applicants (should more than one counsel appear) shall do likewise.

Agreed: With respect to questions and argument, the order shall proceed as just noted and then in reverse order to end with the counsel who commenced (i.e., "around the table and back"). This order (i.e. permitting questions in the reverse of the initial order) does not preclude a right to object to any specific question asked on the "return" route.

66. The pre-hearing conference continued on March 10, 1989. Vice-Chair Tacon's Memo­randum in respect of that date reads, in part, as follows:

PROCEDURAL ASPECTS

Confirmed: It is confirmed that the following dates have been set for hearing of the above-noted cases:

September 5,6,7,11, 12, 13, 19, 20, 21, 25, 26, 27;

October 2,3,4, 16, 18, 19, 23, 24, 25, 30, 31;

November 1, 6,7,8,20,21,22,27,28,29;

December 5,6,7,18,19, 20;

January of 1990: 2, 3, 4, 8, 9, 10.

Confirmed: It is confirmed that the hearing times for the dates in September and onwards, shall be 9:30 to 12:30, 2:00 to 4:30, except with respect to the first day of each three day block, in which case the hearing times shall be 10:00 to 1:00 and 2.30 to 5:00.

77. On March 10 the parties' representatives also appeared before this panel of the Board to make submissions on a procedural issue which they had been unable to resolve. The Board's oral ruling concerning that issue is quoted in an unreported decision dated March 20, 1989 (in File No. 1522-88-R), which reads as follows:

1. During the course of the pre-hearing conference proceedings which are being conducted by Vice-Chair Tacon in respect of this application for certification and File Nos. 0068-88-R, 0767-88-R, 1149-88-R, 1484-88-R, 2261-88-R, and 2666-88-R, representatives of the parties agreed to appear before the Board to make submissions on a procedural issue which they had been unable to resolve. On March 10, 1989, after hearing and recessing to consider those submissions, the Board made the following oral ruling:

Having regard to all of the circumstances, including the desirability of achieving the greatest expedition possible in dealing with certification applications, the desirability of avoiding a procedure which may protract hearings by giving rise to the potential for a substantial amount of time being devoted to hearing submissions and making rulings concerning the proper scope of evidence adducible in respect of a bifurcated issue, and the distinct possibility that a significant proportion of the evidence that would be of arguable relevance to the merits of the Charter arguments might also be of argua­ble relevance to the issues of status or standing, we are unanimously of the view that evidence and argument concerning the issues of status or standing should be heard together with evidence and argument on the merits. Accordingly, the request by some of the respondents that we hear the status or standing issues as preliminary matters is hereby denied.

2. By letter dated March 14, 1989, counsel for Burns International Security Services Limited requested the Board to reconsider that ruling. However, the letter does not contain any repre­sentations or submissions that have not already been considered by the Board or that counsel had no opportunity to raise at the aforementioned hearing. Accordingly, the Board, in the exercise of its discretion under section 106(1) of the Labour Relations Act, declines to reconsider that ruling.

88. The pre-hearing conference continued again on May 19, 1989. The resulting Memoran­dum prepared by Vice-Chair Tacon includes the following information:

4. The parties are to inform the Board well in advance of the September commencement of hearings of the dates to be scheduled for Ottawa so that the necessary arrangements may be made. By agreement, the September 7 hearing date is to be cancelled.

5. Agreed: It was agreed that the Inco "configuration" (i.e., employer with guards and an extant collective agreement with the USWA) could be placed before the Board hearing the Charter issue. Inco counsel to inform B. Shell of the evidence to be introduced and this exchange would likely result in at least a partial agreement on facts, thereby expediting the proceedings.

6. Metro Zoo: H. Doyle stated the Zoo's position that, because of the costs involved, the Zoo wished to withdraw from the Charter litigation and merely await (and be bound by) the Board's decision in that regard. H. Doyle did not wish the Zoo "fact configuration" to be adjudicated by the Board. B. Shell opposed this position. H. Doyle wished to have this issue argued in advance of the September hearing. S. Tacon stated that H. Doyle should indicate his position in writing (reasons and citations, if any) and forward this to the Board. (see recommendation below)

7. By letter dated June 21, 1989, M. Gordon asserted that the Charter hearing before the Board should be postponed because the question of Board jurisdiction regarding relief for a claimed breach of a Charter right is presently before the Ontario Court of Appeal in Cuddy Chicks.

Recommendation

A hearing before the Howe panel be scheduled for July 7,1989 to hear submissions with respect to two issues:

(a) the motion by H. Doyle that the Metro Zoo be permitted to await the outcome of the Char­ter issue (and be bound by result) without participating in the Charter hearing and without hav­ing evidence re: The Metro Zoo fact configuration before the Board in the Charter hearing;

(b) the motion by (at least) M. Gordon and M. Gleason that the Charter hearing before the Board should be postponed pending the release of the final decision in Cuddy Chicks.

99. It is unnecessary for us to deal with the first of those two issues as the Metro Zoo is no longer seeking to withdraw from the Charter hearing. Thus, this decision is confined to the second issue, as were the submissions which counsel made before this panel at the July 7 hearing.

1010. Cuddy Chicks Limited is the respondent in a certification application (File No. 0310-

87-R) that has been filed with the Board by United Food & Commercial Workers Union, Local

175. In a decision dated May 6, 1988 (Cuddy Chicks Limited, [1988] OLRB Rep. May 468) in

respect of that application, the majority of another panel of the Board wrote, in part, as follows:

2. The United Food & Commercial Workers International Union, Local 175 ("the union") seeks certification as the exclusive bargaining agent of the employees at the hatchery of Cuddy Chicks Limited ("Cuddy Chicks" or "the employer"). The employer maintains that those employees are persons "employed in agriculture" and are therefore not covered by the Labour Relations Act ("the Act") by virtue of section 2(b) of the Act. The union contends, however, that section 2(b) of the Act is contrary to the Canadian Charter of Rights and Freedoms ("the Charter") and that if we find that these employees are employed in agriculture, we should ignore the exemption and proceed with its certification application....

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

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

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

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

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

1111. Cuddy Chicks Limited sought judicial review of that decision. In a judgment released on November 2, 1988, Mr. Justice Gray (with whom Austin and McKeown JJ. concurred) held that the Board is a court of competent jurisdiction (within the meaning of section 24(1) of the Charter) in the context of a certification application, that the Board has the authority to apply the Charter in proceedings before it by virtue of section 52(1) of the Constitution Act, and that the Board also has jurisdiction to apply the Charter by virtue of its duty to apply statutes to proceed­ings before it: see Re Cuddy Chicks Ltd. and Ontario Labour Relations Board et al (1988), 1988 CanLII 4839 (ON HCJ), 66 O.R. (2d) 284.

1212. On January 16, 1989, Cuddy Chicks Limited obtained leave to appeal that judgment to the Ontario Court of Appeal. The appeal was heard on June 5 and 6, and judgment was reserved.

1313. All of the counsel in attendance before this panel of the Board at the July 7 hearing, other than counsel for the applicants and the intervening employees, seek to have the Board post­pone the Charter hearing in these proceedings until after the Ontario Court of Appeal has decided the Cuddy Chicks appeal. It is their contention that it would be in the interests of justice for the Board to do so because their clients will have been unnecessarily put to substantial expenditures of time and money if it ultimately turns out that the Board has no jurisdiction to deal with Charter issues. They also contend that this case is distinguishable from the usual situation in which a party seeks to adjourn a Board hearing pending disposition of judicial review proceedings in that, in the instant case, the applicants have no right to certification since section 12 of the Act precludes the Board from certifying them. They further contend that considerations of delay defeating labour relations are inapplicable in the context of these proceedings because it was and is open to the applicants to bring the Charter issue directly before the Courts. They further argue that if the applicants had done so, there would have been some procedural advantages available to the other parties, including an opportunity to receive in advance all affidavits filed by the applicants, to cross-examine on them, and to have a costs sanction imposed on the applicants if the case did not succeed. It is also their position that the balance of convenience favours the requested postpone­ment. Some of respondents' counsel also indicated that they wished to reserve their right to request a further postponement in the event that the Ontario Court of Appeal upheld the Divi­sional Court decision and leave to appeal to the Supreme Court of Canada was subsequently obtained.

1414. Counsel for the applicants (and the intervening employees) opposes the requested post­ponement. In stressing the need to avoid having labour relations defeated through delay, he sub­mitted that the disposition of certification applications covering a substantial number of employees should not be delayed to await a Court decision which may not issue for many months, may never issue at all if the parties to those proceedings resolve their differences, or may not be dispositive of the Board's jurisdiction in the instant proceedings. In support of his clients' position, counsel noted that although the respondents and the intervening union must have been aware of the Cuddy Chicks proceedings throughout the pre-hearing conference process, no request was made that the Charter hearing be postponed until months after the aforementioned Charter hearing dates had been set in place through that process. He also noted that if the applicants and intervening employ­ees accept his recommendation that they abandon any reliance on section 15 of the Charter, the number of days needed to hear the Charter issues may be halved, but the remaining need for over twenty days of hearing would still result in substantial delays if the existing dates were cancelled and new dates had to be scheduled following the disposition of the Cuddy Chicks appeal. Counsel further indicated that, based upon the hearing arrangements made through the pre-hearing confer­ence process, his clients have retained expert witnesses, including one from the United Kingdom who is not available later in the Fall but who has agreed to come to Toronto to give evidence in these proceedings on September 19, 20, and 21.

1515. Having duly considered the able submissions of counsel (which are set forth above in a highly abbreviated form), we are of the view that the requested postponement should be denied. While counsel for some of the respondents described their request in other terms, it is in essence a request for an adjournment, not unlike those which the Board sometimes receives from a party that has applied for (or intends to apply for) judicial review of a Board decision. The Board has a discretion to adjourn any hearing if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. Nov. 1036, at paragraph 8, the Board stated:

…….The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:

5. The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal, ¶70 CLLC 14,024) wherein the Board stated:

……the Board's decision to deny the respondent's request for an adjourn­ment was based on the Board's practice to grant adjournments only on con­sent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness....

The powers of the Board with respect to adjournments were confirmed by the Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400, at pages 404 and 405:

Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exer­cise its discretion in a variety of situations. In the case of a request for adjournment, it is mani­festly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Exp. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 OR. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. Ii is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act, 1971 (Ont.), c.47, and afford the parties the opportunity to be present and be represented, if they wish, by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

1616. The Courts have made it clear that the Board, as master of its own procedure, is enti­tled to proceed with the hearing of a matter notwithstanding a pending or anticipated application for judicial review: see, for example, Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183 (1971), 71 CLLC ¶14,087 (Ont. C.A.). This applies all the more forcefully in the context of an appeal from an unsuccessful application for judicial review of a Board decision pertaining to another application between different parties.

1717. The Board and the Courts have long recognized that expedition is particularly impor­tant in the context of applications for certification, where labour relations delayed are often labour relations defeated and denied. Moreover, we are not persuaded that such considerations are inap­plicable in the context of the instant proceedings. If, as contended by the applicants and the inter­vening employees, the impugned portion of section 12 is unconstitutional and therefore inoperative as a bar to these applications, the applicants are entitled to have the Board determine with reason­able expedition whether or not they have satisfied the other requirements of the Act and thereby become entitled to be certified. Moreover, the present state of the law in Ontario, as reflected in the aforementioned unanimous Divisional Court judgment in Cuddy Chicks, is that the Board is a "court of competent jurisdiction" within the meaning of section 24(1) of the Charter in the context of a certification application, that the Board also has the authority to apply the Charter in proceed­ings before it by virtue of section 52(1) of the Constitution Act, and that, in addition, the Board has jurisdiction to apply the Charter by virtue of its duty to apply statutes to proceedings before it. Thus, the Board has properly been called upon in these proceedings to hear and determine the Charter issues which have arisen in the context of the instant certification applications. In doing so, the Board must conduct a fair and proper hearing in accordance with the requirements of natural justice and the procedures set forth in the Labour Relations Act and the Statutory Powers Proce­dures Act. Having exercised their option to have those issues adjudicated in this forum and to thereby avail themselves of those procedures, the applicants acted responsibly in requesting and participating in the aforementioned pre-hearing conference process in an attempt to have the Charter issues decided in the context of "test cases" in which a number of potentially affected par­ties would be able to participate. That process has resulted in a substantial number of hearing days being set down before this panel in the period from September 5, 1989 to January 10, 1990. The applicants have relied upon those arrangements in preparing their case and scheduling the afore­mentioned expert witness from the United Kingdom. If those dates are lost through postponement of the Charter hearing, the disposition of these applications will be substantially delayed.

1818. We are not insensitive to the expenditures of time and other resources which participa­tion in proceedings of this magnitude entails. However, even if the Ontario Court of Appeal judg­ment is rendered sometime in the Fall, it may not conclusively determine the issue of the Board's jurisdiction to hear the Charter issues raised in these proceedings. Moreover, leave to appeal to the Supreme Court of Canada may well be sought and obtained. It would be inappropriate and inconsistent with sound labour relations considerations to postpone the disposition of these appli­cations until that jurisdictional issue has been conclusively resolved by the Courts in the Cuddy Chicks case, as that may not occur for years, if at all. The employees to whom these applications pertain should not be placed in limbo for such a lengthy period, uncertain of whether or not the applications will ultimately succeed, and unable to obtain (or, in the context of the Metro Zoo case, change) union representation. Such a delay would certainly not promote the objects of the Labour Relations Act as set forth in its preamble.

1919. For the foregoing reasons, we hereby deny the requested postponement of the hearing of the aforementioned Charter issues.

CONCURRING DECISION OF BOARD MEMBER W. H. WIGHTMAN; July 25, 1989

While agreeing with the result in this decision, I think it is important to note that counsel for the respondents make a valid point in observing that the matters before this panel are not application(s) for certifications but rather application(s) for reconsideration of earlier findings in the light of provisions of the Canadian Charter of Rights and Freedoms. In the particular circumstance of this case I believe the outcome, in which I join, is correct but other circumstances can be envi­sioned wherein the distinction drawn to our attention should cause the Board to accede to a request that the Board defer to the courts.