Canadian Guards Association v. Pinkerton's of Canada Ltd., 1990 CanLII 5732

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

[1990] OLRB Rep. January 68

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 #1 v. Inco Limited, Intervener #2 v. Attorney-General of Ontario, Intervener #3; Canadian Guards Association, Applicant v. Pinkerton's of Canada Ltd., Respondent v. Inco Limited, Intervener #1 v. Attorney-General of Ontario, Intervener #2; Canadian Guards Association, Applicant v. National Protective Services Company Limited, Respondent v. George Faulkenburg, Intervener #1 v. Inco Limited, Intervener #2 v. Attorney- General of Ontario, Intervener #3; 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 v. Inco Limited, Intervener #3 v. Attorney-General of Ontario, Intervener #4; Canadian Guards Association, Applicant v. Burns International Security Services Limited, Respondent v. Gordon A. Southorn, Intervener #1 v. Inco Limited, Intervener #2 v. Attorney-General of Ontario, Intervener #3; Canadian Guards Association, Applicant v. Wackenhut of Canada Limited, Respondent v. Shane Freeman, Intervener #1, v. Inco Limited, Intervener #2 v. Attorney-General of Ontario, Intervener #3; United Steelworkers of America, Applicant v. Pinkerton's of Canada Ltd., Respondent v. Larry Bishop, Intervener #1 v. Inco Limited, Intervener #2 v. Attorney-General of Ontario, Intervener #3

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

APPEARANCES: Brian Shell and Paula Turtle for the applicants and the intervening employees; M. J. Gleason for Pinkerton's of Canada Ltd.; G. S. Monteith and K. Thompson for the Board of Management for the Metropolitan Toronto Zoo; Richard P. Stephenson for International Union United Plant Guards Local 1962; Michael Gordon for Burns International Security Services Limited; Brian P. Smeenk for Wackenhut of Canada Limited; Harvey A. Beresford, John C. Field, Wallace T. Gretton, and Guy Giorno for Inco Limited; no one appeared for the Attorney-General of Ontario or for National Protective Services Company Limited.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER, W. H. WIGHTMAN; January 31, 1990

1. These seven applications for certification are currently being heard together for purposes of determining whether a portion of section 12 of the Labour Relations Act is inconsistent with the "freedom of association" guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter"), and if so, whether it is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society, within the meaning of section 1 of the Charter. This decision pertains to certain issues which have arisen in the course of the hearing:

(1) the issue of whether Board Member Peacock's presence on this panel gives rise to a reasonable apprehension of bias; and

(2) issues regarding the reception of expert evidence.

I

Introduction

2. Section 12 of the Act provides:

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.

3. It is the position of the applicants and the intervening employees that the portion of section 12 which provides that "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", is violative of section 2(d) of the Charter and is not "saved" by section 1. The portion of section 12 which precludes the Board from including in a bargaining unit with other employees a person employed as a guard to protect the property of an employer is not being challenged.

4. In a decision dated June 27, 1988 in File No. 0068-88-R (Pinkerton's of Canada Ltd., [1988] OLRB Rep. June 613), the Board found the Canadian Guards Association (the "CGA") to be "affiliated, directly or indirectly" with the United Steelworkers of America (the "USWA") in view of their relationship under the terms of their Service Contract (quoted in paragraph 5 of that decision). Thus, the Board concluded that unless the Charter challenge succeeded, section 12 would preclude the Board from certifying the CGA and requiring Pinkerton's of Canada Ltd. ("Pinkerton's") to bargain with the CGA on behalf of any of its guards.

5. A pre-hearing conference in respect of these applications was convened before Vice-Chair S. A. Tacon on February 10, 1989, and continued on March 10, May 19, and July 7, 1989. On March 10 and July 7, representatives of the parties also appeared before this panel of the Board to make submissions on procedural issues which they had been unable to resolve. Our rulings concerning those issues are set forth in Pinkerton's of Canada Ltd., [1989] OLRB Rep. July 783. (An application for judicial review of that decision was dismissed on August 23, 1989: see [1989] OLRB Rep. Aug. 924.)

II

The Bias Issue

6. The hearing of the merits of the aforementioned Charter challenge was scheduled to commence on September 5, 1989. However, at the commencement of the hearing on that day, counsel for the respondent Burns International Security Services Limited ("Burns") advised the Board that he had been instructed by his client to object to Board Member Peacock sitting on the panel of the Board assigned to hear this case, on the grounds that his presence on the panel gave rise to a reasonable apprehension of bias. In support of that objection, counsel referred the Board to a brief passage from a speech which Mr. Peacock made in the Ontario Legislature on November 13. 1970. The capacity in which Mr. Peacock was speaking at that time is recorded as follows at page 6470 of the pertinent Report of the Ontario Legislature:

Mr. H. Peacock (Windsor West): Mr. Speaker, on third reading of Bill 167, An Act to amend The Labour Relations Act, I rise on behalf of the New Democratic Party group in this Legislature to finally put on the record our unalterable opposition to the passage of this particular piece of legislation....

The passage on which Burns relies appears at pages 6472-6473 and pertains to what is now section 12 of the Act:

[Bill 167] completely disenfranchizes a particular group of employees - those who work as plant guards or security guards - from real genuine participation in the trade union movement of this province. True, the bill will allow them to form a union, but only a union which represents no other persons but security guards or plant guards. The bill denies them affiliation with a local labour council, a central labour body like the Federation of Labour for Ontario or the Canadian Labour Congress.

I suggest to the minister, as has already been done before, that these employees - already so badly underpaid, subject to long and capricious hours of work and exceptional discipline because of the high rate of turnover in that particular occupation - are going to remain at the bottom of the collective bargaining ladder because they will not be able to make use of the supportive services and facilities of such central labour bodies as the federation in setting their collective bargaining goals and achieving them against their managements and employers.

7. Counsel for Burns referred the Board to the following authorities in support of his client's position: Szilard v. Szasz, 1954 CanLII 4 (SCC), [1955] S.C.R. 3; Re Refrigeration Workers Union, Local 516 and Labour Relations Board of British Columbia (1986), 1986 CanLII 3957 (MB CA), 27 D.L.R. (4th) 676 (B.C.C.A.); R. v. Ontario Labour Relations Board; Exparte Hall, 1963 CanLII 189 (ON HCJ), [1963] 2 OR. 239 (O.H.C.); and Committee for Justice v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.

8. Burns' position was supported by counsel for Pinkerton's, who referred the Board to pages 6251-6259 of the aforementioned Report of the Ontario Legislature, in which Mr. Peacock is recorded to have made the following comments concerning what is now section 12 of the Act on November 10, 1970, while Bill 167 was being debated in Committee of the Whole:

Mr. Peacock: Mr. Chairman, on section 8 I would like to move that section 9 of the Act, as re-enacted by clause 8 of the bill, be amended by deleting the words "in either case" in the eighth line and by deleting the words "or is chartered by or is affiliated directly or indirectly with an organization that admits to membership" in lines 9 and 10, SO that the clause will read:

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 the trade union on behalf of any person who is a guard if the trade union admits to membership persons other than guards.

In effect, what the amendment is to provide, Mr. Chairman, is that-

Mr. Chairman: Perhaps I should place the amendment first and then the member can discuss it.

Mr. Peacock moves that clause 8 be amended by deleting the words "in either case" in the eight [sic] line, and by deleting the words "or is chartered by or is affiliated directly or indirectly with an organization that admits to membership" in lines 9 to 11.

The member for Windsor West.

Mr. Peacock: Mr. Chairman, the section has been brought in, as I understand from the minister's explanation in the standing committee, to clarify the Knights' Guards case, and section 9 puts forward two propositions. The first, which my amendment leaves intact, is that a bargaining unit of employees who are guards, whether acting or working under contract, or whether directly employed by an employer, may belong only to a union which represents guards and no other classes of employees.

The second proposition is the one which the amendment seeks to delete. That is, that such a union that represents only security guards under contract arrangements may not be affiliated directly or indirectly with an organization that admits to membership persons other than guards. I think, as the minister affirmed to us in the standing committee, in effect what the result will be is that such a trade union will not be able to participate in the activities of a local labour council, a provincial federation of labour, or the Canadian Labour Congress.

Mr. MacDonald: That is sure to keep them weak.

Mr. Peacock: That means that the name "trade union" will be given only by this Act and by no other reason to that group of members made up of security guards because in this day and age, in the practice of modern industrial relations, it is inconceivable that the minister should want to disenfranchise this particular class of employees in the name of protecting them, as I think he put it in the standing committee, from undue influence from their fellow trade union members in other unions affiliated to a central labour body.

The security guards therefore will be without benefit of representation in legislative matters primarily when their local council at the municipal level, their provincial federation at this level of government or the Canadian Labour Congress, dealing with the national economic and legislative problems, will want to speak on such matters. Despite the minister wagging his head, that is exactly what he put to us in the standing committee, that the trade union which is organized to represent guards and guards alone will not be permitted to affiliate itself with the Ontario Federation of Labour, the Canadian Labour Congress or a local labour council. If that is not correct, Mr. Chairman, perhaps the minister would care to explain.

Hon. Mr. Bales: The portion I was disagreeing on with the hon. member was that they could not make representation. Not that we should necessarily copy it, but this is the same principle as pertains in the United States in reference to plant guards there. They can belong to the international union of plant guards, which is an international union that has various affiliates and so on. They can make representations as to legislation - and they should - but they do not need to belong to any other affiliate group to be able to do that.

These people have a distinct responsibility. It is their job to guard the employer's property and to adequately deal with their particular type of occupation in their responsibilities. They have to be free of any conflict of interest. I think it is as simple as that. It is not any attempt to prevent them; it just widens the area by which they can obtain a union. What in fact the hon. member is saying is that they should be able to affiliate themselves with some other group, any other group, whether there is any conflict of interest or not.

Mr. Peacock: That is exactly what I am saying. I am saying they should be able to affiliate to a central labour organization.

Once again, I think the words that have been applied earlier to the minister's explanations, or attempted explanations, are in this case just nonsense. It is just nonsense to speak of such a union being able to affiliate on an international basis to a branch or a parent organization in the United States. With all his talk about autonomy and so on, that argument is just nonsense.

The fact is that one essential thing he is denying to such a union, which will have to exist on its own without benefit of support by any other class of employees except guards, is the research facilities of a central labour organization.

The second thing he is denying them is representation on such matters as workmen's compensation and unemployment insurance, because it is just not possible, I suggest to the minister, for a union based on such a narrow membership structure as security guards, who are notoriously underpaid, to provide for themselves all the various kinds of services that central labour bodies now provide for their smaller affiliates. There is no way that a plant guard union as such in this Province of Ontario is going to be able to buy all of those services that today have to go with proper trade union representation for a group of employees.

How would one group of plant guards in the city of Windsor know what conditions prevail in another bargaining unit elsewhere if they do not have access to the co-ordinating services of a central labour organization? They will simply be in an extremely difficult position to begin to perform their prime function of collective bargaining if they do not have that affiliation to a central labour organization.

The whole purpose of affiliation is for the exchange of information; that is what it is about. It is not to exert undue influence, to use the minister's words, on a particular group of employees.

And his proposition that plant guards somehow have a particular responsibility to their employer, above and beyond what other employees have to their employers in a normal industrial establishment, Just does not wash. It certainly is not a responsibility that extends beyond the employer-employee relationship to this Act, but that is what the minister is saying. He is saying that the responsibilities of a security guard, in carrying out his assignments as an employee, are much greater and because they are much greater they are therefore going to be nailed down by the wording of this clause.

I say to the minister that the responsibility of such an employee as a security guard is no more and no less than it is in any other class of employees. If he does not fulfil his assignment to the satisfaction of his employer, his employer then has reasonable cause to dismiss him or take other disciplinary measures. There should be no other way of treating a security guard distinctly from the kind of employer-employee relationship that exists between any other group of employees.

I say to the minister once again he is simply putting these people in a second-class position. They are already among the lowest-paid group of employees - my colleague says they work the longest hours - in every respect they are at the bottom of the collective bargaining totem pole:

First of all, with employers who are extremely resistant to organization; secondly, who are extremely resistant to paying the comparable rates of pay and matching working conditions for those bargaining units to which the guards will be attached through contract. Quite obviously this will weaken the efforts of the security guards tremendously to try to obtain the same wages and working conditions as enjoyed by those working in the plants and establishments that they are supposed to be protecting.

Mr. Peacock: Mr. Chairman, may I ask the minister, what is his conception of the discipline that the Ontario Federation of Labour or local labour council may exercise over a constituent affiliated trade union?

Mr. Pilkey: Right. Good question.

Hon. Mr. Bales: It varies in the different situations.

Mr. Deans: Tell us.

Mr. Peacock: Has the minister examined the constitution of the Ontario Federation of Labour or the bylaws of the local labour council?

Mr. MacDonald: They have no exercise of discipline.

Mr. Makarchuk: Name one.

Mr. Peacock: Which part of the constitution of the Ontario Federation of Labour or which set of local labour council bylaws has he read which empowers that group to impose some discipline over an affiliated organization which is parallel to, or greater than, the discipline which the parent body of the local union may exercise?

To my knowledge, there is none exercisable by a local labour council or the Ontario Federation of Labour over one of its affiliates. Because, in the first place, Mr. Chairman, neither of them -and this includes the CLC - may say to an affiliated union, "You must do such-and-such in expressing your collective bargaining demands or in taking strike action, or taking a secret ballot vote, or in fulfilling any provisions of The Labour Relations Act."

There is not a single particle of evidence in any of the constitutions or bylaws of those bodies which would support the minister's contention that they can exercise some kind of discipline over a unit of security guards. None to my knowledge. And if he knows of it and if that is the grounds for his moving this amendment, I hope he will inform the House of it.

Mr. Chairman: Right. All those in favour of Mr. Peacock's motion will please say "aye."

Those opposed please say "nay".

In my opinion, the "nays" have it.

9. Counsel for the applicants and the intervening employees submitted that the comments which Mr. Peacock made in the Legislature in 1970 did not give rise to a reasonable apprehension of bias. He also contended that there had been an "unseemly delay" in raising the matter.

10. After recessing to consider the matter, the Board rendered the following oral ruling:

Having duly considered the submissions of the parties, the Board is unanimously of the view that Mr. Peacock's presence on this panel does not give rise to a reasonable apprehension or likelihood of bias. Accordingly, this panel will continue as presently constituted. Our reasons for this decision will issue at a later date.

11. As indicated in that ruling and in the authorities to which we were referred by counsel for Burns, the issue is whether Board Member Peacock's presence on this panel gives rise to a reasonable apprehension (or likelihood) of bias. We unanimously concluded that it does not for the following reasons.

12. Section 102 of the Act provides, in part, as follows:

(2) The Board shall be composed of a chairman, one or more vice-chairmen and as many members equal in number representative of employers and employees respectively as the Lieutenant Governor in Council considers proper, all of whom shall be appointed by the Lieutenant Governor in Council.

(4) The chairman or, in the case of his absence from the office of the Board or his inability to act, the alternate chairman shall from time to time assign the members of the Board to its various divisions and may change any such assignment at any time.

(8) Each member of the Board shall, before entering upon his duties, take and subscribe before the Clerk of the Executive Council and file in his office an oath of office in the following form:

I do solemnly swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of chairman, (or vice-chairman, or member) of the Ontario Labour Relations Board and I will not, except in the discharge of my duties, disclose to any person any of the evidence or any other matter brought before the Board. So help me God. (omit this phrase in an affirmation).

(9) The chairman or a vice-chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.

(10) The Board may sit in two or more divisions simultaneously so long as a quorum of the Board is present in each division.

Thus, the tripartite composition of the Board includes members representative of employers and members representative of employees. In Re Marques and Dylex Ltd. (1977), 1977 CanLII 1157 (ON HCJ), 18 O.R. (2d) 58 (Div. Ct.), Morden J. made the following observations during the course of the judgment which he delivered orally on behalf of the Court:

…….We can take judicial notice, if it is not apparent from the Labour Relations Act itself, that members of the Labour Relations Board and in particular the chairmen of panels will have had experience and expertise in the law and labour relations. The Government of Ontario looks to people with such a background in making appointments....

(In that case the Court concluded that a reasonable apprehension of bias was not created by the fact that, a year prior to his appointment to the Board, the Vice-Chair assigned to chair the panel hearing the case had been employed by a law firm which provided legal services in labour law matters to a predecessor of the union that was the respondent in those proceedings.)

13. As is well known in the labour relations community of which Burns, Pinkerton's, and most of the other participants in the instant proceedings are a part, Board Members are appointed because of their experience and expertise in labour relations and associated areas of endeavour. The Board Members' biographic sketches in the Board's Annual Reports provide some indication of the breadth of their experience and expertise. For example, the biographic sketches contained in the 1988-89 Annual Report read as follows for the two Board Members on this panel:

HUGH PEACOCK

Mr. Peacock was appointed a full-time Board Member representing labour in November, 1986. Prior to joining the Board Mr. Peacock was Legislative Representative for the Ontario Federation of Labour which enabled him to gain broad knowledge of the legislative and political process in Ontario as well as its labour relations system. He came to the OFL after having been the Woodworkers' Education and Research Representative (1960-1961), worked in the UAW Canada Research Department (1962-1967), and having been a negotiator for the Toronto Newspaper Guild (1972-1976). Mr. Peacock was a member of the Ontario Parliament, representing Windsor West (NDP) from 1967 to 1971. He is currently a member of various social and community organizations.

W.H. (BILL) WIGHTMAN

Mr. Wightman was first appointed to the Board in 1968, becoming a full-time member in 1977, and resigned from the Board in April 1979, in order to serve as a member of the 31st Parliament of Canada and Parliamentary Secretary to the Minister of Labour. He was re-appointed as a full-time Board Member representing management in May, 1981. Following 12 years as an industrial relations specialist in the petro-chemical, food processing and health care industries in the U.S. and Canada, he became Director of Industrial Relations for the Canadian Manufacturers' Association from 1966 to 1977. Concurrently, he served as the Canadian Employer Delegate and Technical Advisor to the International Labour Organization in Geneva and the Organization for Economic Co-operation and Development in Paris, and as a member of the Canada Manpower and Immigration Council, the Unemployment Insurance Advisory Committee and the Attorney-General's Committee on Prison Industries. He is a graduate of Clarkson University (BBA '50) and Columbia University (M5 '54).

Thus, both Board Member Peacock and Board Member Wightman have parliamentary experience. If they were to be precluded from hearing any case involving an issue on which they may have had occasion to comment during the course of serving as a member of the federal or provincial parliament, or fulfilling the responsibilities of the various positions which they have held, there would be few, if any, cases in which the Board would be in a position to avail itself of their expertise. Moreover, we are unanimously of the view that the above-quoted statements which Board Member Peacock made almost two decades ago as a Member of the Ontario Legislature would not cause reasonably well-informed persons to have a reasonable apprehension that he would render a biased decision in these proceedings, in violation of his oath of office. In view of our conclusion that Mr. Peacock's presence on this panel does not give rise to a reasonable apprehension of bias, it is unnecessary for us to comment upon the timeliness of the objection.

14. On September 5, 1989, after rendering the oral ruling quoted in paragraph 10 of this decision, the Board heard submissions concerning disclosure and a further request for an adjournment. After recessing to consider those submissions, the Board made a four part direction regarding disclosure and production, cancelled all of the hearing dates scheduled in the matter up to and including October 25, 1989, ruled that the matter would continue on October 30 and on the other (22) days previously scheduled, and further ruled that if the case was not completed within those days, it would continue on January 23, 24, 25, 30, 31, February 1, 6, 7, 8, 19, 21, 22, 27, 28, March 1,12, 13, 15, and on Tuesday, Wednesday, and Thursday of each week thereafter until completed. (Some of those dates were subsequently cancelled by the Board on the agreement of the parties.)

III

Expert Evidence

15. On September 5, 1989, Mr. Shell provided opposing counsel and the Board with copies of the curriculum vitae of Professor Bob Hepple, whom he proposed to call later in the proceedings as an expert witness on behalf of the applicants and the intervening employees. Mr. Shell also provided opposing counsel and the Board with copies of a fifty-page paper entitled "The Freedom of Association of Security Guards in International and European Labour Law", written by Professor Hepple for use in these proceedings. The outline included in the paper's introduction reads as follows:

This paper deals with the freedom of association, including the right to bargain collectively, of security guards.

Part 2 considers this question under the Constitution and relevant Conventions and Recommendations of the International Labour Organisation (ILO)., with particular reference to Convention No.87 (1948) which has been ratified by Canada. (There are other international instruments which refer to the freedom of association, such as Art.20(1) of the Universal Declaration of Human Rights, and art.22 of the International Covenant on Civil and Political Rights, but none of these has engendered a case law on the scale of that of the supervisory organs of the ILO. Accordingly, attention is restricted in this paper to the ILO and its case law.)

Part 3 considers the position under the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Council's European Social Charter (E5C), both of which have been ratified by a considerable number of democratic societies in Europe.

Part 4 provides an outline of the law and practice of nine such societies. The findings are summarised in the final section.

Each Part ends with conclusions, and there is a summary of these conclusions in Part 5.

The nine societies covered by Part 4 of the paper are Belgium, Denmark, France, the Federal Republic of Germany, Italy, the Netherlands, Spain, Sweden, and the United Kingdom.

16. When Mr. Shell sought to call Professor Hepple on December 18, 1989, opposing counsel raised a general objection to the admissibility of expert evidence in respect of freedom of association, and sought to have the Board hear and decide that issue prior to giving any consideration to Professor Hepple's qualifications. However, the Board ruled that it would permit Mr. Shell to call Professor Hepple to give testimony with respect to his qualifications, and would then hear submissions with regard to admissibility together with submissions concerning Professor Hepple's qualifications. After Professor Hepple had been examined by Mr. Shell and cross-examined by opposing counsel regarding his qualifications, counsel presented lengthy submissions on the issues of admissibility and expertise. We do not propose to detail those submissions, which occupied many hours of hearing time on December 18, 19, and 20, 1989. It is sufficient for purposes of the present decision to note that, having carefully considered all of the submissions and the authorities to which counsel referred, we have reached the following conclusions.

17. Under the procedure agreed to at the February 10, 1989 pre-hearing conference and subsequently adopted by this panel of the Board, the applicants and intervening employees are proceeding first with their evidence in chief regarding section 2(d) of the Charter. In the next phase of the casey the respondents and the other interveners will lead their evidence in response with respect to section 2(d) and their evidence in chief regarding section 1. The applicants and intervening employees will then lead their reply evidence concerning section 2(d) and their evidence in response with respect to section 1. The respondents and the other interveners will then lead their reply evidence concerning section 1. The Board has recognized, however, that there will inevitably be some degree of evidentiary overlap, since some of the evidence that is of arguable relevance to section 1 is also of arguable relevance to section 2(d). There has also been some suggestion by counsel that a non-suit motion may be made at the conclusion of the applicants' and intervening employees' evidence in chief regarding section 2(d).

18. Having carefully considered the matter, we have concluded that the objection to receiving Professor Hepple's evidence during this phase of the case should be upheld. We are not prepared to permit what in essence amounts to legal argument concerning the proper scope of freedom of association to be placed before us in the form of oral or documentary evidence. Unlike the marital status and conflict of laws cases cited by Mr. Shell (including Sharif v. Azad, [1966] 3 All E.R. 785 (C.A.); Re Low, 1933 CanLII 162 (ON CA), [1933] 2 D.L.R. 608 (Ont. C.A.); Parkasho v. Singh, [1967] 1 All ER. 737 (Div. Ct.); Lazard Bros. v. Midland Bank, [1932] All E.R. 571 (H.L.); Camille Dreyfus v. I.R. Comrs., [1954] 2 All E.R. 466 (C.A.); Wellington and others, [1947] 2 All E.R. 854 (Ch. D.); Lyon v. Lyon (1959), 1959 CanLII 122 (ON CA), 18 D.L.R. (2d) 753 (Ont. C.A.); and Rouyer Guillet v. Jackson Knowland, [1949] 1 All E.R. 244 (C.A.)), in which the nature of the substantive issues before the Courts required them to determine as a question of fact what the law of a foreign country was on a particular matter, in the section 2(d) phase of the instant case it is unnecessary to determine as a question of fact what freedom of association encompasses in other countries. It is, of course, open to counsel during the course of argument concerning section 2(d) to refer the Board to statutes, judgments, treatises, and other sources of reference concerning freedom of association in other countries, and to attempt to persuade the Board to adopt, as a matter of law, a similar interpretation in the context of section 2(d). However, we are not persuaded that it would be an appropriate exercise of our discretion under section 15(1) of the Statutory Powers Procedure Act and section 103(2)(c) of the Labour Relations Act to admit expert evidence concerning such matters during this phase of the case which is being confined, as far as is practicable, to the case in chief of the applicants and intervening employees regarding section 2(d). (See, generally, the following authorities in which expert evidence was held to be inadmissible with respect to questions of law which were the responsibility of the adjudicators to determine: R. v. Century 21 Ramos Realty (1987), 1987 CanLII 171 (ON CA), 37 D.L.R. (4th) 649 (Ont. C.A.); R. v. Augustine and Augustine (1986), 1986 CanLII 3939 (NB CA), 35 D.L.R. (4th) 237 (N.B.C.A.); and Emil Anderson Const. Co. v. B.C. Ry. Co. (1987), 1987 CanLII 2587 (BC SC), 15 B.C.L.R. (2d) 28, and 1987 CanLII 2583 (BC SC), 17 B.C.L.R. (2d) 357 (S.C.). See also Sopinka and Lederman, The Law of Evidence in Civil Cases (1974) at page 350.)

19. However, unless the Board allows a non-suit motion on the completion of the case in chief regarding section 2(d), such evidence will be admissible in the next phase of the case, in which evidence is to be adduced in respect of section 1. If the impugned portion of section 12 is a limit on freedom of association, the Board, in determining whether or not that limit is demonstrably justified in a free and democratic society, may well derive assistance from expert evidence concerning the scope of freedom of association and the limitations, if any, placed upon it in the context of security guards in other free and democratic societies. In this regard, we respectfully agree with the following observations made by Brian G. Morgan in his paper entitled "Proof of Facts in Charter Litigation", which forms Chapter 7 of Charter Litigation (1987), edited by Robert J. Sharpe, at page 179:

The nature of the law of other jurisdictions and countries may be a very important fact in determining whether a Canadian law or governmental act is "such reasonable limit ... as can be demonstrably justified in a free and democratic society" under s. 1 of the Charter. This must be distinguished from citing authorities from other jurisdictions in argument to support a particular legal construction of a Charter provision.

20. As indicated above, counsel also made submissions to the Board concerning Professor Hepple's qualifications. Mr. Shell submitted on behalf of the applicants and the intervening employees that Professor Hepple is an expert in the following four areas:

(1) the law of the International Labour Organization (including its conventions and the "jurisprudence" of its various organs);

(2) the law of the Council of Europe (including the European Convention on Human Rights and Fundamental Freedoms, the European Social Charter, and various bodies which enforce or interpret them);

(3) British labour law; and

(4) comparative European labour law.

21. Opposing counsel do not dispute Professor Hepple's expertise concerning those four areas (although with respect to the third area, counsel for Burns reserves the right to argue that Professor Hepple is not an expert regarding Scottish labour law). Moreover, without conceding the relevance of such evidence, they do not object to Professor Hepple being called to give expert evidence concerning the first three areas in the context of the section 1 phase of these proceedings. However, while acknowledging Professor Hepple's expertise in comparative European labour law, they contend that a comparatives cannot properly be called to give expert testimony in these proceedings.

22. Having reviewed Professor Hepple's curriculum vitae (which is Exhibit 100 in these proceedings) and Professor Hepple's oral evidence concerning his qualifications, we are satisfied that he is duly qualified to testify as an expert concerning each of the four areas listed above, including comparative European labour law. Professor Hepple is currently the Dean of Law and Head of the Department of Laws at University College, London. He holds four university degrees and has been a Barrister, of Gray's Inn, since 1966. For the past ten years he has been the chief editor of Volume XV (Labour Law) of the International Encyclopaedia of Comparative Law (Max-Planck Institute, Hamburg). He is also an editorial board member for the International Journal of Comparative Labour Law and Industrial Relations. He has a lengthy list of labour law and industrial relations publications, including a number pertaining to comparative labour law matters. His knowledge concerning European labour law has been derived from research, study, visitation, and discussions with legal experts from various European countries. Researchers and assistants have also gathered information for him. In preparing his paper on "The Freedom of Association of Security Guards in International and European Labour Law", he conducted additional research and made personal inquiries of people in the security industry. Although Professor Hepple is not, and does not profess to be, an expert on the domestic labour law of any European country other than Britain, his expertise in comparative European labour law is in our view sufficient to enable him to give expert testimony on that subject. Whether such evidence should be given less weight than that which might be accorded to the testimony of a series of experts who each have legal expertise concerning the labour law of specific European countries is a matter which may be addressed in final argument. As contended by counsel for the applicants and the intervening employees, that is merely a matter of the weight to be given to such evidence, and does not affect its admissibility.

DECISION OF BOARD MEMBER H. PEACOCK; January 31, 1990

1. In respect of Part III of this decision which deals with the admissibility of expert evidence I dissent.

2. Paragraph 17 of the decision describes the stages through which we are proceeding. We are now, in the 2(d) phase of the case, confronted by two enquiries:

(a) What is the meaning of freedom of association in section 2 of the Charter, and

(b) Does the section 12 bar to certification of a trade union that admits to membership persons other than guards, etc. violate that guarantee of freedom of association?

Obviously, we must answer (a) before we can answer (b). The first is not a question that can be answered in the abstract. The vague but meaningful generalities of the words of section 2, as they have been labelled, must be interpreted to produce a consequence that makes sense for working people in Ontario, their trade union representatives and their employers within the labour relations framework we administer.

3. How is the Board to approach the task of interpreting the words freedom of association? The decision of the majority would rule out what I consider to be an essential line of enquiry and a major source of information. In the section 2(d) phase of the case, my colleagues hold in paragraph 18 that it is unnecessary to determine as a question of fact what freedom of association encompasses in other countries. I do not agree. In its section 2(d) enquiry, the Board should be able to hear what values attach to freedom of association in free and democratic societies, not just what limits are imposed on the application or scope of freedoms enshrined in law. I give emphasis to the word values because in the submissions of counsel, and in the cases and commentaries they put before us, the word stands out as a clear guide to our approach to the construction of the Charter freedom. If we are to attempt an examination of the meaning of freedom of association without the benefit of evidence about values held by societies similar to Canada, we may tend to narrow this Board's consideration of the analysis to our own immediate Canadian experience and its quite recent introduction to the business of testing the legal constraints on every day life against supposedly universal human values adopted into our Charter.

4. I do not contest that the determination of the meaning of the section 2 freedoms is a matter of law, just as is the determination of the scope of the section 1 reasonable limits that may be placed on those freedoms. But during the section 1 inquiry, facts may be put in and tested as to whether the limitations are reasonable or demonstrably justified in a free and democratic society. The purpose of the section 1 enquiry, therefore, is quite different from the section 2(d) enquiry.

5. How then is it more helpful, as a matter of practicality, to hear what freedom of association means by reference to "statutes, judgments, treatises and other sources of reference" (paragraph 18) as expounded by counsel in argument rather than discussed by a qualified expert such as Professor Hepple? I do not regard the opinions and conclusions of Professor Hepple, to which opposing counsel have objected, as attempts to persuade this Board to adopt the very same meaning he says is attributed to the freedom in the jurisdictions about which he is qualified to testify. This Board is competent to receive and weigh Professor Hepple's descriptions of the law of freedom of association in other jurisdictions as adjudicative facts. The admission of those facts may be of assistance to us, subject to their relevance to the 2(d) analysis and the weight that should be given to them, if any. If they go in as evidence, there is also the benefit of cross-examination and rebuttal evidence, which would not be available to the Board if they are excluded. If the applicant and intervening employees fail to make their case on the 2(d) breach question, the Board will have reached a decision without having had the opportunity to consider potentially important adjudicative facts which may well be relevant to our interpretative task. Thus, it is not sufficient to rely on evidence put in through the section 1 phase of the case even though it may well overlap with 2(d).

6. For these reasons I would exercise the Board's discretion and admit Professor Hepple's evidence in the manner described above for the purposes of the section 2(d) freedom of association enquiry as well as the section 1 enquiry.