Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources), 1990 CanLII 5805

Ontario Public Service Employees Union v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services

[1990] OLRB Rep. June 633

0953-88-R Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services, Respondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: Alick Ryder for the applicant; R. C. Filion and Paul Drysdale for the Crown in right of Ontario as represented by the Ministry of Natural Resources; no one appeared for the other respondents.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER B. L. ARM­STRONG; June 14, 1990.

1. This is an application under the Successor Rights (Crown Transfers) Act (the "Act").

2. When no one appeared on behalf of the respondents John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services at 9:30 a.m. on June 4, 1990, which was the time set for the commencement of the hearing of this application on that date, the matter was recessed for thirty minutes as a matter of courtesy, in view of the possibility that their arrival might have been delayed. However, when no one had appeared on their behalf by 10:00 a.m., the hear­ing proceeded in their absence.

3. In the Spring of 1988, John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services were the successful bidders on Project No. 1 of Ministry of Natu­ral Resources ("M.N.R.") Tender No. 621, which pertained to a creel survey that was to be con­ducted on Canal Lake, Cameron Lake, and Sturgeon Lake in the County of Victoria. On May 12, 1988, they entered into a contract with the Crown in respect of that creel survey.

4. As indicated in paragraph 27 of our decision dated July 18, 1989 in respect of File No. 1617-88-R (and five other files), which is reported as Dunning Paving Limited, [1989] OLRB Rep. July 714, Mr. Knight and Ms. Norris are partners (top) carrying on business as Agassiz Forestry/Environmental Services. (For ease of reference, that partnership will be referred to in this decision as "Agassiz", as it was in that decision.)

5. Under the terms of that creel survey contract, Agassiz was required to obtain for the Crown "accurate and precise written information respecting angler effort, angling success and fish harvest, including data for establishing biological characteristics of fish harvested during the period from May 14th until September 2nd inclusive in the year 1988 from the Canal Lake, Cameron Lake and Sturgeon Lake in the County of Victoria", and to "use a computer to enter, edit, vali­date, and correct" that information. The contract details the manner in which those operations are to be performed, and specifies what is to be supplied by Agassiz and what is to be supplied by the Crown.

6. Paul Drysdale, an official of the M.N.R. who appeared at the hearing pursuant to a summons served upon him by the applicant, advised the Board that the creel survey is part of the M.N.R.'s fisheries program, and that it has been performed by M.N.R. employees in the past.

7. The documentation submitted by Agassiz in support of its bid on that project indicates that "fi]n addition to the contractors, John Knight and Lorraine Norris, two more field crew per­sonnel will be hired." However, in their August 10, 1988 reply to this application, Mr. Knight and Ms. Norris asserted that "[t]here were no employees hired and will be no employees hired to com­plete the above mentioned Creel Survey." The reply also suggests that their partnership should not be found to be an employer.

8. The Act provides, in part, as follows:

1.-(1) In this Act,

(a) "bargaining agent" means an employee organization that has representa­tion rights under the Crown Employees Collective Bargaining Act or a trade union or council of trade unions that is certified as a bargaining agent under the Labour Relations Act;

(b) "Board" means the Ontario Labour Relations Board;

(c) "collective agreement" means an agreement in writing between the Crown or an employer and an employee organization, trade union or council of trade unions covering terms and conditions of employment;

(d) "Crown" means Her Majesty in right of Ontario;

(e) "employer" means an employer other than the Crown;

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

(g) "Tribunal" means the Ontario Public Service Labour Relations Tribunal;

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

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

4.-(1) Where an undertaking was transferred from the Crown to an employer or from an employer to the Crown and an employee organization, trade union or council of trade unions was the bargaining agent in respect of employees employed in the undertaking immediately before the transfer and,

(a) a question arises as to what constitutes a unit of employees that is appropri­ate for collective bargaining purposes in respect of the undertaking; or

(b) any person, employee organization, trade union or council of trade unions claims that by virtue of section 2 or 3, a conflict exists as to the bargaining rights of the employee organization, trade union or council of trade unions,

any person, employee organization, trade union or council of trade unions concerned may apply to the Board, in the case of the transfer of the undertaking to an employer, or to the Tribunal, in the case of the transfer of the undertaking to the Crown, and the Board or the Tribunal, as the case requires,

(c) may determine the composition of the unit of employees referred to in clause (a);

(d) may amend, to such extent as the Tribunal or the Board considers neces­sary,

(i) any bargaining unit in any certificate issued to any trade union or council of trade unions,

(ii) any bargaining unit defined in any collective agreement,

(iii) any unit of employees determined by the Tribunal to be appro­priate for collective bargaining purposes in respect of the under­taking, or

(iv) any unit of employees that is designated by the Lieutenant Gov­ernor in Council as an appropriate bargaining unit for collective bargaining purposes in respect of the undertaking.

9. The manner in which those provisions have been interpreted is described at length in our aforementioned decision dated July 18, 1989 in Dunning Paving Limited, supra, and in a sub­sequent decision dated October 20, 1989 (which has been reported under the same name in [1989] OLRB Rep. Oct. 1028) in which we dismissed a request for reconsideration of our earlier decision (and also granted three other applications). We do not propose to quote at length from those deci­sions, other than to note that the issue raised in Agassiz's reply concerning the meaning of the term "employer" in the context of this legislation was resolved in the following manner in our decision dated July 18, 1989 (in which we found each of the six contractors in those proceedings, including Agassiz, to be an "employer" within the meaning of section 2(1) of the Act):

10. We turn next to the issue of whether each of the contractors to whom those undertakings were transferred was an "employer" at the time of the transfer. The definition of "employer" contained in section 1(1)(e) of the Act is not of any assistance in resolving this issue as it merely indicates that the term "means an employer other than the Crown". As indicated by the afore­mentioned materials to which we were referred by Crown counsel, it is certainly possible to define the term "employer" as a person or firm that employs workers for remuneration. How­ever, to construe the term in that manner in the context of this legislation could give rise to some very anomalous results. At the time a contractor enters into a seasonal contract with the Crown, s/he might well not have any employees as there would be no work for them to perform during the off season. The relatively small amount of work available at the start of some sea­sonal contracts (such as those involving garbage pick-up and disposal from a provincial park) could lead a contractor to initially perform all of the work personally and to defer hiring an assistant until later in the season when the amount of work to be done increases. Even in the context of non-seasonal work, a contractor such as Mr. Forbes might elect to personally perform all of the work covered by the contract until such time as illness or the need for a vacation prompts him to hire a replacement (or to make other arrangements for the performance of the contract during his absence). In each of those instances, accepting the aforementioned definition of "employer" would result in the contractor not being bound by the collective agreement because s/he would not be an "employer" at the time of the transfer of undertaking. Indeed, such a construction might well enable a contractor to defeat the purposes of the Act by merely deferring any hiring until after the commencement of the contract. On the other hand, a con­tractor who personally performs the work under the contract without any assistance, but who at the time of the transfer has employees working in another location (not covered by that con­tract) would likely be an "employer" on the basis of the aforementioned definition, while a contractor without such employees would not. Furthermore, partnerships might obtain contracts covering a substantial amount of work and avoid the application of the Act by hiring no employ­ees and having all of the work performed by the partners themselves. These and other such ano­malies are avoided if the term "employer" is construed to be a label which the legislation uses to identify the individual, corporation, partnership, association, or other entity to which an under­taking has been transferred. The use of the term "employer" in the section 1(1)(c) definition of "collective agreement" also supports that interpretation. If, as contended by counsel for the Crown, a person or a firm without any employees is not an "employer"~ it would presumably follow that an agreement in writing which had been a "collective agreement" between an employer and a trade union would no longer be a "collective agreement" if the employer party ceased to employ anyone and, therefore, ceased to be an "employer". Such a result would be highly anomalous in the context of legislation that is clearly intended to provide stability in respect of bargaining rights. (See, generally, The Municipality of Metropolitan Toronto, [1989] OLRB Rep. March 279, paragraph 17ff.) Construing the term "employer" as a label used to identify the individual, corporation, partnership, association, or other entity to which an under­taking has been transferred is also reflective of the "fair, large and liberal construction and inter­pretation" which section 10 of the Interpretation Act, R.S.O. 1980, c.219, directs be given to every Act of the Legislature in order to "ensure the attainment of the object of the Act accord­ing to its true intent, meaning and spirit." (If, as submitted by Crown counsel, nothing in the collective agreement precludes management from performing bargaining unit work, this con­struction may result in the collective agreement having no material effect on the contractor's performance of the subject matter of the contract until such time as the contractor actually hires an employee. However, that is a matter for determination under the arbitration provision included in the collective agreement (or deemed to be so included by section 44 of the Labour Relations Act) and not by the Board in the context of the instant proceedings.)

11. Under section 2(1) of the Act, an employer is bound by the collective agreement between a bargaining agent and the Crown where an undertaking is transferred from the Crown to the employer and the bargaining agent has a collective agreement with the Crown in respect of employees employed in the undertaking. Having regard to the breadth of the section 1(1)(h) defi­nition of "undertaking", and to the principles set forth in the decisions cited above, we are satisfied that the aforementioned creel survey, which is part of the M.N.R.'s fisheries program and which is the subject matter of the contract in question between the Crown and Agassiz, is an "undertaking" within the meaning of the Act. It is also clear that through the tendering process which culminated in that contract, the undertaking has been "transferred", within the meaning of section 1(1)(f) of the Act, from the Crown to an "employer", regardless of whether or not Mr. Knight and Ms. Nor­ris hired anyone to assist them in performing the creel survey. The evidence also establishes that, at all material times, the applicant had a collective agreement with the Crown in respect of employ­ees employed in the undertaking to which these applications pertain. In this regard, we note that the collective agreement which is Exhibit #1 in these proceedings was in force between the Crown and the applicant from January 1, 1986 to December 31, 1988, and that M.N.R. employees cov­ered by that collective agreement, or one or more of its predecessors, had performed the creel sur­vey in the past.

12. This application was not contested by the Crown, but its counsel did make some brief submissions concerning the form of the relief which should be granted by the Board. Applicant's counsel also addressed the Board on that matter. Having regard to those submissions and to the Board's powers under section 4(1) of the Act, we hereby determine that all employees of John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services who performed the creel survey in Canal Lake, Cameron Lake, and Sturgeon Lake in the County of Victoria as per Project No. 1 of M.N.R. Tender No. 621, save and except those employees otherwise excluded from the collective agreement between the Management Board of Cabinet and the Ontario Public Service Employees Union, constitute a unit of employees appropriate for collective bargaining.

13. For the foregoing reasons, we hereby declare that the Crown has transferred an undertaking to John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services; that at the time of the transfer the applicant had a collective agreement with the Crown in respect of employees employed in the undertaking; and that, as a result, John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services became bound by that collective agreement by virtue of section 2(1) of the Act.

DECISION OF BOARD MEMBER J. A. RUNDLE; June 14, 1990

For the reasons set forth in my decision dated July 18, 1989 in Dunning Paving Limited, [1989] OLRB Rep. July 714, I respectfully dissent from the majority decision. I would dismiss the appli­cation on the grounds that there has been no transfer of an undertaking, and on the further grounds that there is no evidence that Agassiz employed a worker or workers for remuneration so as to become an "employer" within my interpretation of that term in the context of this legislation. However, I agree that the relief granted by the majority would be appropriate if there had been a transfer of an undertaking to an employer within the meaning of the Act.