Ontario Labour Relations Board
[1993] OLRB Rep. August 793
0556-93-M Shariar Namvar and Malik Awada, Applicants v. Retail, Wholesale and Department Store Union, AFL:CIO:CLC and Blue Line Taxi Company Ltd., Responding Parties
BEFORE: Janice Johnston, Vice-Chair, and Board Members R. M. Sloan and E. G. Theobald.
APPEARANCES: Bruce Sevigny for the applicant; Harry Ghadban, Robert McKay for the Union; and Ernest Rovet for Blue Line Taxi Company Ltd.
DECISION OF THE BOARD; August 9, 1993
This is an application for an interim order pursuant to section 92.1 of the Labour Relations Act (the "Act"). By decision dated May 26, 1993, the application was dismissed. These are our reasons for that ruling.
Section 92.1 of the Act reads as follows:
92.1 On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
This application for interim relief relates to Board File No. 0555-93-U (the "main proceeding") an application pursuant to section 91 of the Act in which the applicants, Shariar Nainvar and Malik Awada, allege that the responding party, the Retail, Wholesale and Department Store Union, AFL:CIO:CLC (the "union") has violated section 69 of the Act.
In an application for interim relief the Board relies heavily on the written declarations and pleadings filed by the parties. In support of the application, the applicants filed a joint declaration and the union filed a declaration by Harry Ghadban. In addition, in this case the parties were provided with an opportunity to make submissions at a hearing held for this purpose. It was obvious from reviewing the declarations and became even more apparent during the course of the hearing, that some of the facts asserted in the declarations are in dispute between the parties. It is not necessary, for the purposes of this decision, that those matters be resolved.
The responding party, Blue Line Taxi Co. Limited (the "employer" or "Blue Line") was successful in obtaining, through a tender by Transport Canada, the exclusive right to operate taxicabs service at the Ottawa International Airport (the "Airport"), for a period of years commencing October 1, 1992. The union was certified for a bargaining unit of all taxi drivers and taxi owners of Blue Line operating at the airport on November 5, 1992. The union and Blue Line are currently bound to a collective agreement which expires on September 30, 1995.
As a condition of the tender contract, Blue Line is now obligated to operate 128 taxi cabs licensed for the airport. Three of these taxi cabs must be designated as accessible taxi cabs equipped to accommodate, for example, people who use wheelchairs. Under previous airport contracts, Blue Line had maintained 125 tax stand spots for its vehicles at the airport. Thus as a result of the new contract and the requirement to operate accessible taxis, three new taxi stand spots were created.
The 125 existing airport taxi stand spots are "owned" by dependent contractor employees and these employees enjoy the exclusive right to use these spots. The owners either utilize their spot themselves, or rent the right to its use to other taxi drivers. The spots have a monetary value and can be sold. As three new taxi stand spots were now available and had to be allocated, Blue Line and the union reached an agreement which provided that the union would sell the spots to three drivers. It was agreed that the proceeds from the sale of the spots would be utilized to repay Blue Line for the costs of roof signs, credit card machines and radios with "AWI" boards. The union membership was to make up any short fall or share in any surplus associated with the sale of the spots and the purchase of the equipment. This proposal was included in the collective agreement which was ratified by the membership on March 6, 1993. No details were included concerning how or to whom the spots would be allocated, nor was the price at which the spots were to be sold indicated.
The union advised the membership that there were a number of ways in which the spots could be sold. The options included allocating the spots on the basis of seniority, through a lottery, or through sealed bids. At a membership meeting, the options were discussed and debated. A decision was reached to allow all drivers who rented a spot at the airport to participate in a draw or lottery to determine who would have first opportunity to purchase the spots. It was also decided that the spots would be sold for $70,000.00 each. A lottery was held and the three successful individuals purchased the spots.
The applicants are taxi drivers employed by Blue Line and are members of the bargaining unit. They both currently rent a taxi stand spot. The applicant's claim that they are entitled, by virtue of their seniority, to two of the three new spots. As a result of this belief they refused to participate in the lottery and therefore neither of the applicants were successful in obtaining a spot. They claim that the union breached its duty of fair representation due to the manner in which it assigned the new spots.
The collective agreement contains the following provisions with regard to seniority:
25:01 The Union will formulate the initial seniority list based on the length of service at the Airport regardless of roof sign. The Company will maintain and update said list and copies will be given to the Union upon request.
25:03 Seniority shall be the principal governing factor for all facets of the Company's business covered directly or indirectly by this agreement.
The applicants allege that, historically, "new" spots at the airport were assigned on the basis of seniority to drivers who were renting spots from others. These individuals were never required to pay for the spots. The union disputes this and asserts that there has never been a set formula for the allocation of new spots, other than that these issues were determined by the membership at a meeting. In addition, while the applicants conceded that the spots have some value, they assert that a price of $70,000.00 is excessive. Once again the union disagrees and feels that the price is appropriate.
The applicants requested an order from the Board preventing the union from selling or otherwise dealing with the three accessible taxi spots until the main proceeding was decided on its merits. It is not necessary to set out the submissions of the parties in their entity. What follows is a brief summary of the submissions of the applicants and the union.
Counsel for the applicants referred the Board to Loeb Highland, [1993] OLRB Rep. March 197, and suggested that it stood for the proposition that in determining whether or not an interim order was appropriate, the Board took into account whether the main application set out an arguable case and balanced the harm that may occur if the order was granted, versus the harm that may occur if the order was not granted.
Counsel argued that the manner in which the union allocated the spaces violated the seniority provisions of the collective agreement and was not consistent with past practice. In failing to recognize the rights of the applicants, the union breached its duty of fair representation. The fact that the method for allocating and the price of the spaces was determined and approved at a membership meeting is no answer in counsel's opinion, as the fact that the surplus funds were to be distributed to the general membership created a conflict of interest. Counsel argued that the manner in which the new spaces were assigned resulted in the majority of the union's membership engaging in predatory practices at the expense of the minority and resulted in the abrogation of the seniority rights of the applicants. As the actions of the union could not be objectively justified, they constituted a violation of the Act. In support of this assertion, counsel referred to Dufferin Aggregates, [1982] OLRB Rep. Jan. 35. In counsel's opinion, the facts before us support more than an arguable case that the union has breached its duty of fair representation. Counsel also referred the Board to Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067.
In support of his assertion that a balancing of the harm involved favoured the granting of an interim order, the applicant's counsel argued that if the union is not prevented from selling the spots the position of the applicants will be greatly prejudiced due to the irretractable nature of many of the transactions associated with the assignment of the spots. Examples of the transactions referred to include the making of financing arrangements, the purchasing and licensing of a new vehicle and the obtainment of provincial grants in respect to the vehicle purchases.
The union argued that an interim order was not appropriate. Reference was again made to Loeb Highland, supra, and the union agreed that the Board in determining whether an interim order was appropriate would consider whether the applicants had made out an arguable case and would balance the harm that may occur if an interim order is granted with the harm that may occur if it is not. The union questioned whether the applicants had made out an arguable case for a breach of the Act. If the Board determined that they had, the union suggested that the applicants had not established that the "balance of harm" dictated an interim remedy should issue. In this case, there was no "chilling effect", such as could occur in a union organizing drive, to avoid and the passage of time did not operate to the detriment of the applicants. It was not appropriate for the applicant to rely on the potential prejudice which might occur to the individuals who were successful in obtaining the new spots as justification for an interim order. The transactions referred to by the applicants did not involve them, but the three successful individuals. If the applicants were successful in the main application, the fact that the successful individuals might find themselves in a difficult position, is not harm which is suffered by the applicants.
The union argued that the granting of an interim order which prevented the union from selling or otherwise dealing with the three taxi stand spots would harm both the company, who was under an immediate obligation to provide accessible taxis to the public and the three successful individuals who had made financial commitments based on their success in the lottery. The union suggested that there is no harm which may be suffered by the applicants which cannot be cured through an order in the final proceedings.
The parties are correct when they state that the Board, in determining whether any interim orders are appropriate, has articulated that it will balance what harm may occur if an interim order is not granted, against what harm may occur if it is granted and will consider whether the applicant has made out an arguable case for the remedy requested in the main application. These two factors are not the only factors that the Board may consider, they are merely some of the ingredients in the test for interim relief (see Morrison's Meat Packers Ltd., [1993] OLRB Rep. March 226, where the Board considered a lack of expedition in the filing of an application for interim relief).
In determining whether an arguable case has been met the Board in Loeb Highland, supra, adopted the following approach:
- With this in mind, we find it most appropriate to set out as one requirement in a test for interim relief that the main application must reflect an arguable case. By this we mean that if the applicant's assertions can be established, there is at least an arguable breach of the Act, or an arguable case for a remedy within the parameters of some provision of the Act. While leaving room for some innovation by parties, such a test protects the integrity of the Board's processes by precluding interim relief where the main application is frivolous or vexatious. This provides the Board with an element of security and some coherence between the main application and the interim relief power, but gives recognition to our other concerns described above.
In the case before us, assuming without deciding that an arguable case has been made out for the relief requested in the main application, we turn now to a review and a balancing of the harm in this case.
- In Loeb Highland, supra, the Board explained the reasons why it felt that a balancing of harm was an appropriate test.
The importance of effective remedies, their general imperfection in labour relations, and the corrosive effects of delay all serve to highlight the critical role interim relief has to play in this area. If harm is not easily cured after the fact, and if delay is critical, it makes some sense to emphasize preventing that harm at the earliest possible point. However, it must be recognized that preventing one harm, to a union applicant for example, may well have a harmful labour relations effect on a responding employer. This suggests that a general predisposition towards preventing harm, rather than curing it, applies to the interests of both parties. In other words, the Board must balance the harm to each party in considering whether to grant an interim order. As a result, rather than separating out the concept of irreparable harm which appears to be a poor fit with the Board's experience in remedial matters, and then proceeding to an examination of the balance of convenience, we find it more consonant with labour relations realities to adopt an approach where we consider both what harm may occur if an interim order is not granted, and what harm may occur if it is. This does not mean that the notion of irreparable harm is entirely irrelevant. It merely reduces it to one of a number of aspects of harm which the Board might consider in this area.
Of course, this leaves open to some extent the sort of harm we envision as relevant to this balancing process. Given the fact that this jurisprudence is in its infancy, it makes sense to allow the parameters of that harm to evolve in the context of concrete situations which will be presented to us. Suffice it to say at this point that balancing the harm to the parties is not an exercise which takes place in a vacuum, but rather in the context of the purposes and scheme of the Act, which also serve to provide definition for the type of harm we would find persuasive. It is also worth noting that the Board has more flexibility in crafting interim orders than it may in final remedies. Because they are temporary, and because they are not dependent on a finding of a violation, for example, the Board has the relative luxury to conceive of interim justice as an endeavour in problem-solving, rather than fault-finding.
We agree with the Board's reasoning in Loeb Highland, supra, that it is appropriate to apply a test which balances the harm which may occur if an order is granted against the harm which may occur if the order is not granted. The Board in assessing harm looks primarily at the harm which may be suffered by the parties to the action. Counsel for the applicants states that their position will be greatly prejudiced due to the irretractable nature of many of the transactions associated with the assignment of the spots. Examples of the transactions referred to include the making of financial arrangements, the purchasing and licensing of a new vehicle and obtaining provincial grants in respect to the vehicle purchases. We have difficulty with counsel's assertion. First of all, it was not indicated to us why the applicants feel that these transactions are irretractable and we do not agree that they are. As a result of success in the lottery held by the union, three individuals purchased the right to utilize a taxi stand spot. It was not disputed that this right can be bought and sold. There does not appear to be anything irretractable about the transactions referred to, which are associated with the acquisition of a spot. Secondly, it appears to us that it is not the applicants who could suffer harm if the Board finds a violation of the Act in the main application and orders the union to reverse the allocation of the spaces, but the individuals who currently believe that they own the spots and are proceeding to acquire and license the necessary vehicle on that assumption. Therefore, the applicants are relying solely on harm which could befall individuals who are not a party to this action as justification for the ordering of interim relief. They have not suggested that an interim order is necessary in this case to prevent harm to themselves. In an application for interim relief the Board assesses the potential or actual harm that will be suffered, primarily by the parties to the application. While harm to third parties or the general public may be relevant, it will not by itself generally be sufficient to warrant the granting of an interim order. Finally, we would observe that the potential harm to the individuals who purchased the spots in good faith will be largely financial in nature and can be the subject of a remedy in the main proceeding if appropriate. The Board will not generally order interim relief to avoid or limit harm which is purely financial in nature (see Morrison's Meat Packers Ltd., supra, and Price Club Canada Inc., Board File No. 1467-92-U, dated November 5, 1992, as yet unreported). If the potential harm is primarily economic loss, this harm can be the subject of a monetary award in the main action.
In support of its argument that an interim order should not be granted the union pointed out that it was necessary to provide accessible taxis pursuant to the tender agreement and if the Board halted the arrangements which had been made the successful individuals would be harmed. The union stressed that the three successful individuals had already started making the necessary arrangements for an accessible vehicle. They had made financial commitments and could not afford to be "in limbo" pending the outcome of the main application. It appears that the union is also relying on potential harm to a third party which could occur if the Board directed interim relief and again it appears that the harm is primarily financial in nature. For the reasons already provided, the Board does not find this argument persuasive.
However, as the union pointed out, it is clear that if the Board were to interfere with the allocation of the spots and grant the interim relief requested, the availability of the accessible taxis would be delayed and Blue Line would be in breach of the terms of the tender contract. This could jeopardize their success in future tenders and put them in a difficult position with regard to the current contract. If Blue Line were to lose this contract and the work it provides, harm to the union membership in the form of less available work could occur. Clearly the union has an interest in the ongoing economic viability of the company. Although the harm referred to is partially financial in nature, it could ultimately cause job loss and therefore has the potential to be more than merely economic. This potential harm is relevant to the Board's determination and supports the union's assertion that interim relief is not appropriate.
Therefore in balancing the harm which could occur to the parties we concluded that an interim order preventing the union, or anyone else, from dealing with the taxi stand spots was not appropriate. For the reasons set out above, this application for interim relief was accordingly dismissed.