[1993] OLRB Rep. July 581
2306-91-G Sheet Metal Workers International Association, Local 537, Applicant v. Electrical Power Systems Construction Association and Bechtel Canada Inc., Responding Parties
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER W. N. FRASER; July 28, 1993
The applicant, through counsel, has requested reconsideration of the Board's decision in this matter dated May 28, 1993. In that decision, the Board found Bechtel Canada Inc. ("Bechtel") in violation of the collective agreement. The Board, however, declined to award damages because there was no evidence before it that the applicant union or its members had suffered a monetary loss as a result of the failure to hold a mark up meeting. Having made this determination, the Board found it unnecessary to deal with other arguments put forward by Bechtel against an award of damages, including an argument that the terms of the collective agreement preclude a claim for damages arising out of a work assignment dispute.
Section 108(1) of the Labour Relations Act provides that:
108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
- In Ontario Hydro; Electrical Power Systems Construction Association; Labourers' International Union of North America, Local 1059, May 12, 1993 (unreported) the Board discussed its approach to reconsideration:
Under section 108(1), the Board has a broad discretion to reconsider any decision. That discretion must be exercised judicially. Both section 108(1) and legal and labour relations considerations require the Board to operate from the premise that a Board decision is final and conclusive for all purposes, unless there is a good reason to change it. Consequently, the Board will not usually reconsider a decision unless an obvious error is identified; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration proposes to present new evidence which it could not, with the exercise of due diligence, have obtained and presented previously, and which new evidence would, if accepted, have a material impact on the decision in question; or that a party seeks to make representations which it has had no previous opportunity to make.
In many ways, the Board's approach to reconsideration mirrors the manner in which the Board applies the doctrine of res judicata (or a principle like it). Res judicata is a form of estoppel which, in its modern form, is based on two broad public policy principles:
(a) that all litigation should have an end; and
(b) no party should be forced to litigate the same matter more than once.
The doctrine of res judicata operates to preclude a party or its privies from re-litigating issues (other than through an available appellate process) which have been resolved by a final decision on the merits by a court or tribunal with the jurisdiction to decide the matter. In essence, a specific final determination of the right, question, or fact, is conclusive evidence thereof in any subsequent proceeding between the same parties or their privies (or, if the decision is in rem, in any subsequent proceeding) so long as the decision stands, unless the party otherwise bound by the decision alleges the fact which would, if proved, have a material effect on the decision and the evidence required to establish that fact could not, by the exercise of reasonable diligence, have been previously discovered (See Angle v. Minister of National Revenue, [1975] SCR 248; Town of Grandview v. Doering, (1975) 1975 CanLII 16 (SCC), 61 DLR (3d) 455 (supreme Court of Canada)).
In the case before us, there is no suggestion that the applicant wishes to adduce new evidence which it could not previously have obtained nor that the applicant wishes to make representations that it had no opportunity to raise previously. Further, we are not persuaded that the request raises any significant and important issues of Board policy. In any event, there is nothing in this request for reconsideration which casts doubt on the merits of the prior decision.
The portions of the Board's May 28 decision which are objected to by the applicant are as follows:
In the case before us, the applicant asserts that the loss suffered as a result of this violation was the loss of an opportunity. No other theory of damages was advanced. In essence, the applicant asserts that it was denied the chance to make a meaningful claim to the work in dispute in a properly established mark-up process. Had it been accorded the chance to make a meaningful claim, it would have received the opportunity to have its members perform the work. As a result of the violation of the agreement, it was denied this opportunity. In the submission of the applicant, the measure of its lost opportunity is the wages and benefits for the number of hours required to complete the work. The applicant called evidence as to the number of hours it asserts would be required, as did the responding parties. However, the applicant asserts that it need not prove actual loss to its members by proving that it had tradesmen as of September 1991 who were available to do the work. Relying on Ontario Hydro, [1988] OLRB Rep. Dec. 1303, counsel states that it is not necessary for the applicant to prove actual damages in a loss of opportunity case resulting from the failure to hold a proper mark-up meeting.
Counsel, in our view, is merging two related concepts. Assuming that the appropriate theory of damages in this case is lost opportunity, the applicant has to establish, on a balance of probabilities, that it would have received an opportunity but for the violation and that its members suffered a loss by not having received the opportunity. We agree that it is not necessary for an applicant, in order to be entitled to damages, to establish with 100% certainty that its members would have been assigned the work in question but for the violation of the agreement. However, assuming that the applicant can establish that it would have received the work assignment (or opportunity) but for the violation, it still has to establish that it or its members suffered a loss by not receiving the opportunity. Where there is no evidence that the applicant had members who could have availed themselves of the offer of work, there is no evidence that the applicant or its members have suffered a loss by not receiving the opportunity.
On the theory of damages advanced by the applicant, we cannot see a distinction between this case, and Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199. In Re Blouin Drywall, the Ontario Court of Appeal upheld an award of damages arising out of an employer's use of non-union employees, stating:
"Having found that the employer was in breach of the agreement, the amount of wages lost, and that there were union members available to do the work, the Board had jurisdiction to make the order in question."
Re Blouin Drywall, did not involve the failure to observe mark-up requirements in a collective agreement but the loss asserted, i.e. wages and benefits to union members, is the same as that asserted before us. The burden of evidence arising out of Re Blouin Drywall is not a difficult one for a union to meet. In fact, prior to Re Blouin Drywall, the law required a union to name each member that suffered the loss asserted. We note that in Ontario Hydro, supra (and in the subsequent unreported decision of April 17, 1989), which was a "mark-up" case, where the Board did not specifically refer to having received evidence of unemployed tradesman, the issue does not appear to have been raised.
We therefore conclude that although there is a violation of the collective agreement, and we so declare, we have no evidence of loss on which we can base an award of damages.
Because of our findings, we do not need to deal with other arguments advanced by Bechtel, including the assertion that Article 8.6 of the agreement precludes an award of damages in any event.
In the request for reconsideration, counsel for the applicant states, among other things:
Legal Submissions
(g) The Board committed a jurisdictional error in declining jurisdiction to provide a remedy in general damages where it endorsed and sustained the theory of liability on the basis of lost opportunity.
(h) As stated in paragraph 20,
“…..the Applicant asserts that it need not prove actual loss to its members by providing that it had tradesmen as of September, 1991 who were available to do the work. Relying on Ontario Hydro, [1988] O.L.R.B. Rep. Dec. 1303, counsel states that it is not necessary for the Applicant to prove actual damages in a loss of opportunity case resulting from the failure to hold a proper mark-up meeting."
(i) The Board required proof of the availability of members of Sheet Metal Workers, Local 537 ready, willing and able to perform the work. It is submitted that the Board ignored both the theory of recovery sustained by it in its decision as well as the evidence of Mr. Norman Agnew above-stated. Clearly, Mr. Agnew's statement that he claimed the work on behalf of his unemployed members is sufficient to establish such fact where unchallenged on cross-examination.
(j) However, more fundamental is the Board's jurisdictional error in requiring such evidence at all. The Board noted, at paragraph 23, that,
"...in Ontario Hydro, supra, (and in the subsequent unreported decision of April 17, 1989), which was a 'mark-up' case, (where) the Board did not specifically refer to having received evidence of unemployed tradesmen...
It is not simply a matter that this issue did not seem to have been raised in that case. By virtue of the "lost opportunity" thesis for recovery, such proof is not necessary and irrelevant to the issue to be determined by the Board. The Board must determine the percentage chances of success for the Applicant to obtain the work assignment had a proper mark-up meeting been held. This Board declined to do so.
- Counsel relies on Radio Shack, [1979] O.L.R.B. Rep. Dec. 1220 [upheld on judicial review as Tandy Electronics Ltd. (Radio Shack) v. United Steelworkers of America and Ontario Labour Relations Board, (1981) 1980 CanLII 1738 (ON HCJ), 115 D.L.R. 197 (Ont. Div. Ct.)]. In counsel's submission, the Board in Radio Shack "specifically endorsed the theory of 'lost opportunity' as a basis for recovery of general damages and specifically acknowledged that there could not be proof of an actual amount as it is a contingent liability based on hours of work." Counsel relies, among others, on the following passages from Radio Shack:
What trade unions like the complainant and the employees it represents lose in cases of this kind is 'the loss of an opportunity' to negotiate a collective agreement or the loss of an opportunity to achieve an agreement at an earlier point in time. Employees join a trade union with, in their minds at least, the reasonable prospect of obtaining an improvement in their working conditions. In fact, the complainant may be able to statistically document the reasonableness of such employee expectations. When an employer responds with flagrant unfair labour practices, he wrongly prevents his employees from realizing their expectations or delays having to deal with any of their demands... Moreover, the employer receives an unfair competitive advantage over those employers who do bargain in good faith, making the unlawful conduct attractive to other employers. In labour relations terms, these employee losses are real; the potential employer gains unjustly; and both are accomplished by the violation of a fundamental duty imposed by the legislation -- bargaining agent recognition. Failure to consider any monetary relief seems to encourage these consequences.
"It can, of course, be argued that damages for the loss of such an opportunity are too speculative to estimate and if arbitrarily set would be punitive in nature -- a result which would appear to contravene the first tenant discussed. The argument, however, is inconsistent with the long-accepted principle that one whose wrongful act precludes the exact determination of damage should not be able to evade his duty to compensate for that damage because of an uncertainty caused by his own wrongdoing. See: Mayne and McGregor on damages, 12th ed., 1961, para. 174. In private litigation before our courts, a party is not burdened with an unattainable standard of accuracy in the assessment of damages... Even more directly on point are those cases that explicitly grapple with the wrongful loss of an economic opportunity.
A general damage award to all of the employees in the bargaining unit of the kind we have in mind, would not amount to the dictation of contract terms. Rather, it acknowledges that the wrong the Board is addressing is not the denial of a right to a particular collective agreement, but rather the right to bargain collectively in pursuit of such a contract. Thus, it is the prospects of the employees of increased earnings from the exercise of the trade unions' bargaining capacity in negotiations which have been impaired by the employer's wrongful acts and refusal to engage in collective bargaining. It is therefore this 'loss' -- the bargaining expectancy -- that must be assessed."
- Counsel for the applicant also relies on the following: Consolidated Bathurst Packaging Ltd., [1984] O.L.R.B. Rep. Mar. 422; Angelo Ritrovato [1986] O.L.R.B. Rep. Oct. 1401; Re Burrard Yarrows Corporation, Vancouver Division and International Brotherhood of Painters, Local 138 (1981) 1981 CanLII 4436 (BC LA), 30 L.A.C. (2d) 331; Chaplin v. Hicks, [1911] 2 K.B. 786; Re Eldorado Nuclear Ltd. and Public Service Alliance of Canada, Eldorado Group (1973), 1973 CanLII 2039 (ON LA), 5 L.A.C. (2d) 94; Re Dominion Stores Ltd. and Retail, Wholesale & Department Store Union (1982) 1982 CanLII 5028 (ON LA), 4 L.A.C. (3d) 127; and Mayne and McGregor, 12th ed., 1961, para. 174.
Failure to Consider Relevant Evidence
Counsel asserts that Norm Agnew, a Business Agent for the applicant, established in his evidence that he claimed the work in dispute on behalf of available unemployed members of Sheet Metal Workers, Local 537. Thus, it is submitted, although no out-of-work list applicable to this period of time was tendered in evidence, Mr. Agnew's evidence was sufficient to establish that members of Local 537 were ready, willing and able to perform the work in dispute.
Mr. Agnew testified "I claimed it was metal insulated panels, the work had been marked up, it was my work". Later he stated "we sat down, discussed a few items of how we could resolve it.. .1 claimed it, and would not turn it over to the Carpenters" Mr. Agnew also testified that he did not supply any sheet metal workers to perform the work in dispute. In cross-examination, it was put to Mr. Agnew that the dispute which was the subject of a meeting called on September 23, 1991 was that "someone else was doing the work you should have", to which Mr. Agnew replied "that's why I called Lyons".
There are no other references in Mr. Agnew's evidence that come close to dealing with
the specific claim made to the work in dispute. Taken as a whole, the Board cannot reasonably draw from his evidence the inference that the applicant had members who were ready, willing and able to perform the work in dispute. The Board is particularly reluctant to draw the inference where such evidence is clearly within the knowledge of the applicant, and could have been easily introduced through Mr. Agnew.
Theory of "Lost Opportunity"
It was submitted that the Board endorsed the theory of recovery on the basis of lost opportunity and then ignored it when it required the applicant to establish that it had unemployed members who were ready, willing and able to perform the work.
It is true that the Board accepted for the purposes of this case the theory of lost opportunity as a basis for recovery of damages. This was the theory proposed by the applicant and, although Bechtel disputed the appropriateness of damages in this case on several grounds, it did not take issue with this general theory. As the cases relied upon by the applicant demonstrate, the theory of lost opportunity has been applied where an aggrieved party cannot prove loss of a definite benefit but only the loss of an opportunity of receiving a benefit. The courts, and the Board in Radio Shack and other cases, have rejected the argument that the uncertainty of such a loss should prevent the award of damages.
In "lost opportunity" cases, the loss is uncertain precisely because it is difficult to recreate the precise result which would have unfolded had it not been for a breach. It is difficult to assess, in the context of various contingencies, the value of the "lost opportunity". In many cases, the courts have taken account of the contingent nature of the loss by apportioning damages based on an assessment of the value of the lost opportunity. In Radio Shack, the Board quoted from Hall v. Meyrick, [1957] 2 Q.B. 455 in which Ashworth, J. stated "The more the contingencies the lower the value of the chance or opportunity of which the plaintiff was deprived." This was also the approach followed by the Board in Ontario Hydro, [1988] O.L.R.B. Rep. Dec. 1303.
The applicant asserts in this request for reconsideration that since this theory of recovery is predicated upon an "available opportunity" and not on the actual losses sustained if the available opportunity had materialized, no further evidence of the "availability" of the opportunity is necessary. It is thus unnecessary to have evidence that Local 537 had members ready, willing and able to perform the work.
The Board does not accept this submission. Although "lost opportunity" is a notion that has been applied by the courts and by this Board to provide for the recovery of damages even where the outcome was uncertain, its application is still subject to the same general principles as in any assessment of damages. The aggrieved party has the general burden of proving that it has suffered the loss for which compensation is claimed. Without a loss, there is no basis for compensation.
In Radio Shack, the Board awarded damages to bargaining unit employees for "all monetary losses that the Complainant can establish by reasonable proof as arising from the loss of opportunity to negotiate heretofore a collective agreement due to the Respondent's earlier unlawful conduct..." The Board ordered a hearing to be scheduled for determination of the damages. There was no suggestion by the Board that the union was relieved of any obligation to prove on a balance of probabilities the losses that were caused by the company's unlawful conduct. In Re Dominion Stores Ltd. and Retail, Wholesale & Department Store Union, supra, the arbitration board stated that "[i]f [the lost opportunity] approach is adopted it then becomes necessary to value this 'lost opportunity' by estimating both the total wages lost and the probability that the
union would have succeeded in persuading the employer to follow an alternative course of action..." [emphasis added].
- In "lost opportunity cases" therefore, tribunals are prepared to award damages even where there is no certainty that the benefit would have been realized but for the breach of an agreement or (as in Radio Shack) unlawful conduct. However, there is still a requirement that the loss be proved. These cases recognize that the loss of the opportunity alone is not the basis for an award of damages; rather, it is the loss of an opportunity which would have, but for the breach, led to some benefit. In Kinkel et al. v. Hyman et al., 1939 CanLII 7 (SCC), [1939] 4 D.L.R. 1, quoted in Radio Shack, the Supreme Court of Canada stated:
"For my part I can find no authority in either Chaplin v. Hicks or Carson v. Willitts justifying any Court in awarding any more than a nominal sum as damages for the loss of a mere chance of possible benefit except upon evidence proving that there was some reasonable probability of the plaintiff realizing therefrom an advantage of some real substantial monetary value."
In this case, the applicant asserts that the value of its lost opportunity is close to 100% of the wages and benefits for the number of hours required to complete the work, on the theory that its chances of success at a properly constituted mark-up meeting would have been something close to 100%. On the applicant's theory, it is entitled to recover these damages even in the absence of any evidence that its members would have been available to perform the work. On the same theory, it would be entitled to recover these damages even if its membership had been at full employment and the applicant could not have supplied any sheet metal workers to Bechtel. Clearly, such a result is contrary to the principles of compensation.
The result urged by the applicant would turn the theory of "lost opportunity" which courts and tribunals have applied to permit the recovery of damages for loss of a chance of a benefit, into a theory which would allow recovery without any proof of loss. It may be that nominal damages are appropriate where there is no proof of loss; however, this was not argued in the case before us.
Since Re Blouin Drywall Contractors Ltd. and the United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199, there has been no doubt that a union can recover damages on behalf of its members who are neither employees at the time of the grievance, nor parties to the grievance. However, in order to establish entitlement to damages, the Board has required evidence of monetary loss, for which purpose it has accepted the evidence of union representatives with respect to the union's out-of-work members. Blouin Drywall concerned the failure of the company to hire members of the union. Other cases before the Board have applied the same principles to the failure to abide by subcontracting provisions of collective agreements. The purpose of the award of damages is the same in all these cases, and in the one before us: to place the aggrieved party in the position it would have been in had the contract been carried out (see Blouin Drywall, p. 210).
The application of the "lost opportunity" theory should not place the applicant before us in a better position than a union claiming damages for breach of a union security or subcontracting. provision. We see no reason in law to accept the arguments of the applicant which would relieve it of its obligation to establish, through evidence, its loss.
As we stated in our previous decision, in Ontario Hydro, supra, the Board did not refer to having received evidence of unemployed tradesmen. We do not take the absence of such a reference in that case to support the position of the applicant before us.
This application for reconsideration is dismissed.
DECISION OF BOARD MEMBER J. REDSHAW; July 28, 1993
I dissent.
I stand by my original dissent and I also accept the argument of counsel for the applicant re: "loss of opportunity".
In my opinion, the Board should reconsider its original decision.