Labourers' International Union of North America, Local 247 v. Bellai Brothers Ltd., 1994 CanLII 9813

Ontario Labour Relations Board

[1994] OLRB Rep. January 2

1167-92-G Labourers' International Union of North America, Local 247, Applicant v. Bellai Brothers Ltd., Responding Party v. Labourers' International Union of North America, Local 527, Intervenor

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and H. Kobryn.

DECISION OF THE BOARD; January 31, 1994

I INTRODUCTION

1. This is a referral to the Board of a grievance in the construction industry, under section 126 of the Labour Relations Act.

2. After being adjourned three times by the parties, the grievance came on for hearing on July 29, 1993. Upon considering the materials filed and the representations of the parties at that hearing, the Board made an interim order as follows:

19. Upon hearing the representations of the parties, the Board declared that any contractor bound by the provincial collective agreement between the Labour Relations Bureau of the Ontario General Contractors Association; Ontario Masonry Contractors Association; Industrial Contractors Association of Canada; Waterproofing Contractors Association of Ontario; Concrete Floor Contractors Association of Ontario (the Employer Bargaining Agency), and the Labourers International Union of North America and the Labourers International Union of North America, Ontario Provincial Council, on behalf of its affiliate Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 (that is, the provincial agreement), which has work on a job site at a location which that provincial agreement does not specifically and clearly place in the geographic jurisdiction of either Local 247 or Local 527, may assign the work covered by the provincial agreement to members of either Local 247 or Local 527 in its sole discretion, until such time as this application is finally disposed of or the Board otherwise orders. If this interim order causes any problems, any interested party may apply to the Board, in writing, for directions, or request that the order be varied.

The Board then adjourned the matter sine die to a date or dates to be set by the Registrar as may be directed by the Board. Further, the Board directed that the parties file complete and fully particularized statements of "the facts upon which they intend to rely with respect to any assertion of any ambiguity in the provincial collective agreement, and how that ambiguity should be resolved, together with complete representations or argument in support of their respective positions." The parties were also advised that:

16. The parties should understand that the Board may find it appropriate to dispose of this application on the basis of the materials filed with the Board prior to and pursuant to the Board's directions herein without a further hearing or opportunity for them to be heard. Any party which desires a hearing should expressly request one and specify why a hearing is necessary.

3. The parties have filed extensive briefs and written replies. The applicant ("Local 247") has made a qualified request for a hearing as follows:

HEARING

36. Unless the Board is prepared to accept the evidence of Victor Claro and R. B. Warnington, referred to herein, and the alleged fact that both LOCAL 527 and BELLAI acknowledged to LOCAL 247 that Kemptville was in LOCAL 247's Geographical Area, the Board should convene a Hearing for the purpose, inter alia, of viva voce testimony.

The intervenor ("Local 527") does not request a hearing. The responding employer ("Bellai") has not specifically requested a hearing either.

4. Having reviewed the materials filed, the Board finds it appropriate to dispose of this matter on the basis thereof, without a further oral hearing. There is nothing in the materials before the Board which suggests that there is any other or additional evidence which needs to be adduced and the parties have made comprehensive written representations.

5. The grievance raises a question concerning the interpretation of the industrial, commercial and institutional ("ICI") provincial agreement between the Labour Relations Bureau of the Ontario General Contractors Association: Ontario Masonry Contractors Association: Industrial Contractors Association of Canada; Waterproofing Contractors Association of Ontario; Concrete Floor Contractors Association of Ontario (the Labourers' employer bargaining agency), and the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council (the Labourers' employee bargaining agency) on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 (the "Labourers' Provincial Agreement"), and more specifically whether the job site with respect to which the grievance herein was filed falls within the geographic area assigned to Local 247 under the agreement.

6. Local 247 claims that the job was in a geographic area it administers under the Labourers' Provincial Agreement and that Bellai therefore breached that agreement when it used members of Local 527 instead of members of Local 247 on the job. Bellai denies this. So does Local 527.

7. The job site in question was at the waste water treatment plant in Kemptville, Ontario. Local 247 asserts that there is a patent ambiguity in the provincial agreement which can be resolved by reference to other parts of the agreement and various extrinsic evidence, such that the correct interpretation of the agreement is that Kemptville is in the area assigned under the agreement of Local 247.

8. Bellai denies that there is any ambiguity in the provincial agreement and asserts that Kemptville is in an area which has not been assigned under the provincial agreement to any Local of the Labourers' International Union of North America. Bellai argues that Kemptville is in an "open area", in the same way that the Board found there to be open areas under the then Labourers' Provincial Agreement in M. Sullivan & Son, [1986] OLRB Rep. Aug. 1110. Bellai submits that both Local 247 and Local 527 are entitled to operate in the area in question under the provincial agreement, that it was therefore entitled to employ members of Local 527 at the job site, and that the grievance should therefore be dismissed.

9. Local 527's position is that there is no ambiguity in the Labourers' Provincial Agreement and that the part of Board Area 13 which is south of the Rideau River (which is where Kemptville is) is not under the jurisdiction of either Local 247 or Local 527 (that is, that it is an open area.) In the alternative, Local 527 asserts that that geographic area is within its geographic jurisdiction, whether or not there is an ambiguity in the provincial agreement.

II DECISION ON THE MERITS

10. It is a well-established rule of interpretation that where the words of a collective agreement are not ambiguous, only the words of the agreement can be used to interpret it. It is permissible to refer to extrinsic evidence as an aid to interpretation only in cases where the collective agreement contains a patent ambiguity or a latent ambiguity is alleged (see Re Noranda Metal Industries and IBEW Local 2345, (1984) 44 0. R. (2d) 529 (Court of Appeal); Re International Union, United Automobile, Aerospace, and Agricultural Implement Workers, Local 1967 and McDonald Douglas Canada Ltd., 1984 CanLII 2055 (ON HCJ), 47 OR. (2d) 78 (Divisional Court); Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254; and see Leitch Goldmines Ltd. et al. v. Texas Gulf Sulfur Co. (Inc.) et al., 1968 CanLII 405 (ON HCJ), [1969] 1 O.R. 469).

11. In M. Sullivan & Son, supra, the Board treated the language in the then Labourers' Provincial Agreement dealing with Local Union jurisdiction as being ambiguous for the purpose of its decision, although in the result the Board found the extrinsic evidence submitted as an aid to interpretation unhelpful and ended up interpreting the agreement solely on the basis of the words used in it. In this case, no latent ambiguity is alleged and we are satisfied that although the language of the provincial agreement is not as clear as it might be, it is not patently ambiguous. The meaning of the agreement can be discerned from the words used in it. Accordingly, extrinsic evidence is not admissible in that respect.

12. In addition, Local 247 submits that:

26.... at all material times BELLAI and LOCAL 527 were aware that LOCAL 527 could have no claim to jurisdiction over Kemptville, or any part of Board Area 13 other than Ottawa-Carleton and Lanark. They were also fully aware of LOCAL 247's claim to jurisdiction over Kemptville, and acknowledged same, permitting LOCAL 247 to rely upon such acknowledgment to its detriment. Neither BELLAI nor LOCAL 527 may now deny this acknowledgment. They are estopped from doing so. (See, e.g., CNICP Telecommunications 4 LAC. (3d) 205.

Furthermore, in these circumstances, the reference to "Grenville" in the LOCAL 247 description in Schedule "B", and the LOCAL 247 Schedule to the PROVINCIAL AGREEMENT, are sufficient to preclude BELLAI from ignoring LOCAL 247's claims, and are sufficient to bind BELLAT to the proper interpretation of those claims, even if they were not estopped from denying same.

The equitable doctrine of estoppel can take several forms. In this case, Local 247 seeks to rely on the concept of estoppel by conduct, which has been applied by labour relations arbitrators.

13. Although it has been described in various ways, the basis for an estoppel exists where one party has, by its words or conduct, made a representation to another party which is intended to affect the legal relations between them, and on which the other party has acted to what would be its detriment if the party which made the representation was allowed to act as though the representation had not been made; that is, a party which has made a representation intended to be acted on and on which the party to whom the representation was made has acted to its detriment will not be allowed to deny the truth of its representation. For estoppel to lie, a representation must be clear and unqualified and must have influenced the conduct of the party alleging it.

14. In this case, Local 247 has not pleaded what we consider to be a clear and unequivocal representation by either Bellai or Local 527. Indeed, Local 247's pleadings suggest that the dispute regarding Local 247's geographic jurisdiction over Kemptville became apparent in May, 1992, before the work in issue in this case began, and has never been resolved. Even if everything alleged by Local 247 in that respect if true, it is not apparent that either Bellai or Local 527 ever expressly, by words or by conduct, accepted Local 247's jurisdiction. They may have acknowledged Local 247's claim, but they did not accept it.

15. Further, even if Bellai or Local 527 made a clear representation to Local 247 in that respect, there is nothing in Local 247's pleadings to indicate that it acted on that representation to its detriment. Local 247's pleadings contain a bald allegation of detrimental reliance but do not describe it, and it is not apparent what it is that Local 247 did or refrained from doing in reliance on the alleged representation. Nor is it apparent how the relations between the parties or Local 247's position in that respect were altered as a result of the representation alleged.

16. Accordingly, we are not satisfied that either Bellai or Local 527 are estopped from taking the positions they have in this proceeding.

17. The Labourers' Provincial Agreement provides that:

WHEREAS the Union, acting on behalf of the Local Unions whose names and numbers appear on the attached Schedule "A", and the E.B.A. wish to make a common Collective Agreement with respect to certain employees of the Employers engaged in construction as defined in Article 1 of this Collective Agreement and to provide for and ensure uniform interpretation and application in the administration of the Collective Agreement.

AND WHEREAS the E.B.A. recognizes the Union as the Collective Bargaining Agency on behalf of the Local Unions specified in the attached Schedule "A" with respect to the employees of Employers covered in this Agreement.

IT IS EXPRESSLY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

ARTICLE 1- RECOGNITION

1.01 The E.B.A. recognizes the Union as the sole and exclusive bargaining agent for all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work and all other construction employees engaged in the industrial, commercial and institutional sector of the construction industry in the province of Ontario, for whom the Union has bargaining rights.

1.02 The Union recognizes the E.B.A. (the several parties are listed on Schedule "C") as the sole and exclusive bargaining agent for all Employers whose employees are represented by the Union and for whom the Union has bargaining rights who are engaged in the industrial, commercial, and institutional sector of the construction industry in the Province of Ontario.

1.03 The Employer recognizes each Local Union as specified in the attached Schedule "A" to be the administrative party of this Collective Agreement for work performed within the geographical area and/or jurisdiction of the Local Unions as defined in Schedule "B" attached hereto.

1.04 This Agreement shall also apply to an Employer in all other sectors where the Union or any of its affiliated bargaining agents have bargaining rights in such other sectors for the employees of such Employer, provided that such Employer, may become signatory to the various Collective Agreements applicable in such other sectors.

ARTICLE 2 - UNION SECURITY, WORK JURISDICTION, ASSIGNMENT OF WORK, SUBCONTRACTING

2.01 The Employer agrees to employ only members in good standing of the Local Union specified in Article 1.03 for work covered by this Agreement.

2.02 As a condition of continuing employment, all employees shall maintain in good standing their membership in the Local Union.

SCHEDULE "B"

GEOGRAPHIC REGIONS

Local 247

Area 29 is the Counties of Lennox, Addington, Frontenac and Leeds. Area 30 is Grenville County. Area 12 is Prince Edward County and the Townships of Lake Tudor, Grimsthorpe, Marmora, Madoc, Elzevir, Rawson, Huntingdon, Hungerford, Sydney, Thurlow and Tyendinaga in the County of Hastings. The Townships of McClure, Wicklow, Bangor, Herschel, Monteagle, Carlow, Faraday, Danganon, Mayo, Wollaston, Limerick and Cashel being all of Hastings County outside Area 12.

Local 527

The Regional Municipality of Ottawa-Carleton, The Counties of Lanark, Russell, Prescott, Dundas, Stormont, Glengarry and Renfrew.

LOCAL UNION SCHEDULE FOR LOCAL 247 - KINGSTON

ARTICLE 1- RECOGNITION

1.01 The Employer recognizes Local 247 as the exclusive administrative party to this Agreement for employees working in and out of the countries and municipalities of this schedule which shall be zoned as follows: Zone 1 - Board Area 29 - the Counties of Lennox, Addington, Frontenac and Leeds; Zone II - Board Area 30 - Grenville County; Zone III - Board Area 12 - Prince Edward County and the Townships of Lake Tudor, Grimsthorpe, Marmora, Madoc, Elzevir, Rawson, Huntingdon, Hungerford, Sydney, Thurlow, Murray, Trenton and Tyendinaga in the County of Hastings; Zone IV - the Townships of McClure, Wicklow, Bangor, Herschel, Monteagle, Carlow, Faraday, Danganon, Mayo, Wollaston, Limerick and Cashel in the County of Hastings.

ARTICLE 3- HOURS OF WORK AND OVERTIME RATES

3.01 (a) In Board Area 29 except the County of Leeds but including the Townships of Rear of Leeds and Lansdowne and the Front of Leeds and Lansdowne and except labourers working on masonry, tile, terrazzo and marble, the hours of work shall be thirty-six (36) hours per week. The regular working day which maybe varied by mutual consent of both parties, shall be eight (8) hours between 7:30 am. and 5:00 p.m. on Mondays, Tuesdays, Wednesdays, Thursdays and four (4) hours between 7:30 a.m. and 12 noon on Fridays.

LOCAL UNION SCHEDULE FOR LOCAL 527 - OTTAWA

For the Territorial Jurisdiction of Labourers' International Union of North America, Local 527 (hereinafter called "Local 527").

ARTICLE 1- RECOGNITION

1.01 The Employer recognizes Local 527 as the exclusive administrative party of the Collective Agreement fall all occupations herein covered under Appendix "A" in its employ, working in or out of Zones 1, 2, and 3 of this schedule and for whom Local 527 has bargaining rights.

18. We agree with the approach, reasoning and conclusions of the Board in M. Sullivan & Son, supra, which we have already noted is a previous case dealing with Local 247's geographic jurisdiction and the proper interpretation to be given to the Labourers' Provincial Agreement in that respect. That is, it is the Labourers' Provincial Agreement which defines the exclusive geographic jurisdiction of each local union under it such that it is the description in Schedule "B" which determines each local's jurisdiction for purposes of administering the collective agreement, and any area not specifically identified as being within a local union's jurisdiction is not within its exclusive jurisdiction.

19. The Board has established thirty-two geographic areas in the Province which are used in determining and describing bargaining units in the construction industry. The current Board area descriptions have been in place since January 1,1982. Board Areas 12, 13, 14, 15, 29, 30 and 31 are defined as follows:

Board Area 12

Prince Edward County, the geographic Townships of Lake, Tudor and Grimsthorpe and all lands south thereof in the County of Hastings, and the geographic Townships of Percy and Cramahe and all lands east thereof in the County of Northumberland.

Board Area 13

The County of Lanark, the geographic Townships of South Crosby, Bastard, Kitley, Wolford, Oxford (on Rideau) and South Gower and all lands north thereof in the United Counties of Leeds and Grenville.

Board Area 14

The County of Renfrew.

Board Area 15

The Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell.

Board Area 29

The County of Lennox and Addington, the County of Frontenac, and the geographic Townships of Rear Leeds and Lansdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville.

Board Area 30

The geographic Townships of Elizabethtown, Augusta and Edwardsburg and all lands south thereof in the United Counties of Leeds and Grenville.

Board Area 31

The United Counties of Stormont, Dundas and Glengarry.

20. The difficulty in interpreting the Labourers' Provincial Agreement in this case results from an attempt to describe Local 247's jurisdiction for purposes of the agreement by using a combination of references to Board Areas (29 and 30), local government divisions (counties) and subdivisions (geographic townships). The description of Local 527's geographic jurisdiction does not pose a problem. It is described as being the Regional Municipality of Ottawa-Carleton and the Counties of Lanark, Russell, Prescott, Dundas, Stormont, Glengarry and Renfrew - which happens to coincide with the combined descriptions of Board Areas 14, 15, 31 and that part of Board Area 13 north of the Rideau River. That is, that part of Board Area 13 which is in the United Counties of Leeds and Grenville is not in Local 527's jurisdiction. The Town of Kemptville is in the Township of Oxford (on Rideau) in the County of Grenville and is therefore outside of Local 527's exclusive jurisdiction. Consequently, the job site in issue herein was not in Local 527's exclusive jurisdiction.

21. In the description of Local 247's geographic jurisdiction the word "Area" is clearly intended to refer to a "Board Area". However, although the descriptions purport to describe what the Board Areas are, these descriptions do not match the actual ones. For example, the actual Board Area 29 is "the County of Lennox and Addington, the County of Frontenac, and the geographic Townships of Rear Leeds and Lansdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville" not "the Counties of Lennox, Addington, Frontenac and Leeds" which the provincial agreement states it "is"; that is, it does not include all of the County of Leeds. Similarly, the actual Board Area 30 is "the geographic Townships of Elizabethtown, Augusta and Edwardsburg and all lands south thereof in the United Counties of Leeds and Grenville" not Grenville County which the provincial agreement states it "is" that is, Board Area 30 includes only part of Grenville County.

22. Neither the employer or employee bargaining agencies, nor any of their constituent employers or affiliated bargaining agents respectively, can change the Board Areas established by the Board. Accordingly, the reference to a Board Area followed by a listing of local government political administrative divisions must mean that only that part of the county or other local government division which falls within the particular Board Area is included in a Local Union's jurisdiction. In the case of Local 247, only that part of the County of Leeds which is in Board Area 29 or Board Area 30 (the Township of Elizabethtown is the only portion of the County of Leeds in Board Area 30), and only that part of the County of Grenville which is in Board Area 30 are included within its geographic jurisdiction. This is consistent with the situation with respect to Board Area 12 which, pursuant to Schedule "B" of the provincial agreement has clearly been divided up between Local 247 and Labourers' International Union of North America, Local 597 ("Local 597"). Accordingly, only that part of Board Area 12 specified; that is, Prince Edward County and the listed geographic townships of the County of Hastings (together with that part of the County of Hastings outside of Board Area 12) are under Local 247's jurisdiction.

23. Under the Labourers' Provincial Agreement, Local 247's geographic jurisdiction is therefore the Counties of Hastings, Prince Edward, Lennox, Addington, Frontenac, the geographic Townships of Rear of Leeds and Lansdowne, Front of Leeds and Lansdowne, Rear of Yonge and Escott, Front of Escott, Front of Yonge, and Elizabethtown in the County of Leeds, and the geographic Townships of Augusta and Edwardsburg in the County of Grenville. We note that the Township of Murray in the County of Northumberland is listed in Article 1 of Local 247's schedule. However, that geographic township is listed in Schedule "B" as part of Local 597's geographic jurisdiction. It is not listed in the Schedule "B" description of Local 247's geographic jurisdiction. Nor is any other part of the County of Northumberland. In these circumstances, Schedule "B" must prevail. We therefore find that the geographic Township of Murray in the County of Northumberland is not under Local 247's jurisdiction.

24. The geographic Township of Trenton in the County of Hastings is not listed in the Schedule "B" description of Local 247's jurisdiction. It is, however, listed in Article 1 of the local union schedule for Local 247 and is not found in the description of any other local union's geographic jurisdiction, and we find it is included in Local 247's territory.

25. Consequently, the geographic Townships of South Crosby, Bastard, Kitley and all land north thereof in the County of Leeds (that is, South Elmsley, South Burgess and North Crosby), and the geographic Townships of Wolford, Oxford (on Rideau) and South Gower in the County of Grenville are not included in Local 247's exclusive geographic jurisdiction. In the result, Kemptville and the job site that is the subject of this grievance is not in Local 247's exclusive jurisdiction for purposes of the Labourers' Provincial Agreement.

26. It was part of Local 247's position that the Board should not find that the parts of the Counties of Leeds and Grenville in issue have been placed under neither Local 247's or Local 527's exclusive jurisdiction. However, it is quite apparent that it is possible for parties to omit parts of the province from the exclusive jurisdiction of any Local Union, leaving the master portions of the agreement to apply, which would result in leaving an employer's discretion in terms of assigning work under the agreement unfettered in that respect. That was precisely the conclusion arrived at (correctly in our view) by the Board in M. Sullivan & Son, supra. Indeed, in was in response to the Board's decision in that case that the geographic Townships of McClure, Wicklow, Bangor, Herschel, Monteagle, Carlow, Faraday, Danganon, Mayo, Wollaston, Limerick and Cashel in the County of Hastings were added to the Schedule "B" geographic description of Local 247's jurisdiction under the Labourers' Provincial Agreement, and Article 1 of the local union schedule for Local 247. (We note that contrary to what is indicated in Schedule "B", the Townships of Wollaston, Limerick and Cashel are in Board Area 12.)

27. Further, on the material before the Board it is apparent that both Local 247 and Local 527 have claimed and exercised jurisdiction in the disputed area.

28. Finally it is apparent that even the Labourers' International Union of North America does not and cannot say that the parts of the Counties of Leeds and Grenville in question herein are in either Local 247's or Local 527's geographic jurisdiction, either for purposes of the provincial agreement or otherwise. By letter dated July 29, 1993, the International wrote to Local 247 that: "the disputed geographic area of the Smith Falls area, separating Local Union's 527 and 247 is separated by the river and is in fact Local 247's geographic jurisdiction." Subsequently, by letter dated September 14, 1993, the International wrote, with respect to the same disputed area, that "... it is not clear that Local 247 has had the jurisdiction in this area ... it is clear [sic] why this area was labeled as an obvious grey [sic] area" and indicated that the matter has yet to be resolved.

29. In this case, the Board cannot decide for the parties, or for the employer and employee bargaining agencies, what the geographic jurisdiction of Locals 247 and 527 should be under the Labourers' Provincial Agreement. The Board can only interpret the agreement and determine what their respective geographic jurisdictions are.

30. Because no Local Union of the Labourers' International Union of North America has exclusive jurisdiction over geographic area which includes Kemptville, and therefore no local union schedule mandatorily applies, an employer, Bellai in this case, could choose the local union it wished to hire from. Bellai chose Local 527 in this case, which we are satisfied it was entitled to do. There has therefore been no breach of the Labourers' Provincial Agreement and this grievance must be dismissed. The interim order made as aforesaid is also vacated.

31. The resolution of the geographic issue raised herein is left to Local's 247 and 527, the Labourers' International Union of North America, and the employer and employee bargaining agencies to resolve.

III COSTS

32. This leaves only the issue of costs. The Board reserved its decision with respect to Bellai's request for costs at the July 29, 1993 hearing. Bellai has maintained its request for costs with respect to that hearing and it is implicit in its written submissions that Bellai is also seeking its costs of the proceeding as a whole. The costs issue was clearly identified and the parties have addressed it, though not particularly extensively, in their representations.

33. Bellai's request for "costs" potentially raises several questions. First, can the Board award costs at all; that is, does the Board have jurisdiction to award costs? Second, if the Board does have such a jurisdiction, what approach can or should it take; that is, what are the limitations on the Board's jurisdiction with respect to costs and what are the appropriate policy considerations? Third, if it can, should the Board award costs in this case, either as requested by Bellai or at all? Of course, if the answer to the first question is negative it is not necessary to address the others.

34. The Board's jurisprudence demonstrates a general reluctance to address either of the first two questions directly. Where the issue of costs has been addressed, the Board's general approach has been to assume, without deciding, that the Board has an unspecified costs jurisdiction, and, in most cases, the Board has declined to award costs in a particular case for policy reasons. In the result, the Board has developed a practice of not awarding costs. The Board disposition of a request for costs in Repac Construction & Materials Limited, [1976] OLRB Rep. Oct. 610 is representative of the Board's general approach:

10. The request for costs also goes against the grain of this Board's previous practice. Previous decisions not only indicate that the Board has no general practice of awarding costs, but also raise the question of whether the Board has any procedural jurisdiction to make an order for costs. See Dow Jones Ltd., [1970] OLRB Rep. June 382; Joifre Lapointe & Sons Ltd., [1971] OLRB Rep. Sept. 621. On some occasions, however, the Board has made the payment of costs a condition for the granting of an adjournment. See Metropolitan Toronto Apartment Builders' Association et al, [1970] OLRB Rep. Nov. 846; R. T. Construction, [1971] OLRB Rep. June 342. From these cases, it can be seen that the Board has not attempted to exercise any general power to award costs. This approach might be attributed to the fact that the Board has not been given any express power to award costs. It should be noted, however, that the general procedural jurisdiction, conferred by both section 91(2) of The Labour Relations Act and section 23 of The Statutory Powers Procedure Act, may be wide enough to encompass the power to award costs. Jurisdictional uncertainty, therefore, is not a particularly compelling explanation of the Board's reluctance to award costs. In our opinion, there is a much better reason for adopting a general practice of not awarding costs. The underlying purpose of The Labour Relations Act, as set out in its preamble, is to further harmonious relations between employers and employees through the collective bargaining process. The purpose is not well served by a procedure that usually requires the identification of a winner and a loser. The application of such a procedure, moreover, would be time-consuming, distracting the Board from its primary task of facilitating collective bargaining.

The awarding of costs, therefore, should not be extended beyond the situation where a party is being compensated for the expenses that would result from an adjournment to convenience another party. To extend this procedure any further would introduce an unnecessarily punitive element into the Board's procedures. The request for costs are denied.

35. However, there have been exceptions. The Board has awarded what it has called "costs" in several cases. As the Board noted in Repac Construction, supra, the Board has made the payment of costs as condition of the granting of a contested adjournment (an approach which seems to have received a kind of judicial approval in Re Her Majesty the Queen in Right of Ontario and Ontario Public Service Employees Union and The Grievance Settlement Board, (Taffinder and the Ministry of Correctional Services), April 13, 1984, Ontario Divisional Court unreported, where the Court stated:

In these circumstances, one alternative the Board could have pursued would have been to require that the Crown compensate the grievor for all expenses incurred in connection with the abortive hearing. To refuse the adjournment outright and to proceed, as it did, effectively to deal with the grievance, was to ignore completely the principle of fairness to which the Board's discretion must always be subject.)

The Board has awarded costs in a section 126 proceeding involving a collective agreement which required a delinquent employer to pay legal or other costs of collecting monies owing with respect to bargaining unit employees (Rocco D'Andrea, [1987] OLRB Rep. July 986). The Board has also awarded costs to a successful applicant as part of the "make-whole" order (Academy of Medicine, [1977] OLRB Rep. Dec. 783; Suzanne Hebert-Vaillant, [1981] OLRB Rep. June 623).

36. The Board has awarded costs in so few cases that the cases in which it has done so are the exception rather than the rule. Even when the Board has awarded costs, the Board has stressed the extraordinary nature of such an award, and has either not commented on its jurisdiction to do so, or has done so only in general terms, or has indicated it was doing so under the Board's remedial authority under what is now section 91(4) of the Act. Further, the Board has always stressed that its general practice is not to award costs. When the Board has rejected a request for costs it has usually assumed, for the purpose of its decision, that it has the jurisdiction to do so but has concluded that costs were not appropriate in the particular case, thereby leaving the costs door open, so to speak.

37. It is difficult to distinguish between the cases in which the Board has awarded "costs", in whatever form, and those in which the Board has refused to do so. Further, the Board has expressed some doubts regarding its jurisdiction to award "costs". In Repac Construction, supra, the Board referred to a "jurisdictional uncertainty" but denied the request for costs on policy grounds. In Joe Arban Contractor Ltd. [1983] OLRB Rep. Apr. 547, the Board's decision reflects some doubt concerning the Board's jurisdiction to award costs outside of its general or remedial jurisdiction or with respect to adjournments. In Fitzhenry & Whiteside, [1987] OLRB Rep. Apr. 504, the Board said that:

…..Were it in the power of the Board to award costs [to a successful respondent or against an unsuccessful applicant] we would certainly do so. However, we do not think that we can award costs, but we can certainly dismiss both the application and complaint.

In Gerald Lecuyer, [1987] OLRB Rep. April 529, the Board observed that:

This Board has repeatedly said that if it does have the power to award costs to a successful complainant, it would be inappropriate to exercise that power where there is no corresponding power to award costs against an unsuccessful complainant

[emphasis added]

38. There is good reason to doubt the Board's jurisdiction to award costs as such. In the legal meaning of the term, costs refers to an award made in favour of a successful litigant, payable by the loser at the conclusion of the proceeding, as an indemnity for allowable expenses incurred with respect to the proceeding. In both judicial and quasi-judicial settings, costs as such are reciprocal and fault-based in the sense that the loser indemnifies the winner, in a general way, for its litigation expenses (see, for example, Bell Canada v. Consumers Association of Canada et al., [1986] Admin L.R. 205 (Supreme Court of Canada), and see, Re Hamilton-Wentworth and Save the Valley Committee et al., 1985 CanLII 1957 (ON HCJ), 51 O.R. (2d) 23 (Ontario Divisional Court)). Except where specifically authorized by statute, costs are not assessed as a penalty, or for reasons unconnected with indemnification.

39. Superior Courts in Ontario assert an inherent costs jurisdiction (Apotex Inc., v. Egis Pharmaceuticals, 1991 CanLII 2729 (ON CTGD), 4 O.R. (3d) 321; Re Sturmer and Beaverton, 1912 CanLII 588 (ON DIVCT), 2 D.L.R. 501; and see also Kendall v. Hunt, (1979) 106 D.L.R. (3d) 277 (British Columbia Court of Appeal) which describes the situation in British Columbia where prior to 1969 British Columbia Courts awarded costs without specific statutory authority on the basis of inherent jurisdiction said to be recognized in various statutes and the British Columbia Rules of Practice). Certainly, the Courts of Chancery (but not the Common-law Courts) had such an inherent jurisdiction (see, generally, Mark M. Orkin, Q.C., The Law of Costs second edition ((1993), Canada Law Book Inc., Aurora)). However, the primary jurisdiction of Ontario courts to award costs is rooted in the Courts of Justice Act and the Ontario Rules of Civil Procedure. Section 131(1) of the Courts of Justice Act provide that:

131 -(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

Rule 57 of the Ontario Rules of Civil Procedure provides:

Factors of Discretion

57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing,

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was;

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party's denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor;

and

(i) any other matter relevant to the question of costs.

Costs Against Successful Party

(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.

Costs may be Fixed or Assessed

(3) In awarding costs, the court may fix all or part of the costs with or without reference to the Tariffs, instead of referring them for assessment, and where the costs are not fixed, they may be assessed under Rule 58.

Authority of Court

(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; or

(c) to award all or part of the costs on a solicitor and client basis.

40. As the Board has itself observed, the Labour Relations Act gives no express authority to award costs, either to the Board or to boards of arbitration constituted under the Act. Nor does any other legislation. There is nothing in any of the extensive amendments which came into effect on January 1, 1993, following a lengthy and comprehensive review of the Act, which changed this. In contrast, the Legislature has expressly given other administrative tribunals and arbitrators under the Arbitrations Act the authority to award costs. For example:

(a) subsections 7(4)-(7) of the Consolidated Hearings Act give a joint board the authority to award costs as follows:

(4) A joint board may award the costs of a proceeding before the joint board.

(5) A joint board that awards costs may order by whom and to whom the costs are to be paid.

(6) A joint board that awards costs may fix the amount of the costs or direct that the amount be assessed, the scale according to which they are to be assessed and by whom they are to be assessed.

(7) In awarding costs, in respect of hearings in relation to which public notice was first given after the 1st day of April, 1989, a joint board is not limited to the considerations that govern awards of costs in any court.

This is in addition to subsection 7(3) which provides:

(3) Subject to this Act and the regulations, a joint board may determine its own practice and procedure.

(b) sections 14 and 28 of the Ontario Energy Board Act provide that:

14. The Board for the due exercise of its jurisdiction and powers and otherwise for carrying into effect this or any other Act has all such powers, rights and privileges as are vested in the Ontario Court (General Division) with respect to the amendment of proceedings, addition or substitution of parties, attendance and examination of witnesses, production and inspection of documents, entry on and inspection of property, enforcement of its orders and all other matters necessary or proper therefor.

28.-(1) The costs of and incidental to any proceeding before the Board are in its discretion and may be fixed in any case at a sum certain or may be taxed,

(2) The Board may order by whom and to whom any costs are to be paid and by whom they are to be taxed and allowed.

(3) The Board may prescribe a scale under which such costs shall be taxed.

(4) In this section, the costs may include the costs of the Board, regard being had to the time and expenses of the Board.

(5) In awarding costs, the Board is not limited to the considerations that govern awards of costs in any court.

(c) section 97 of the Ontario Municipal Board Act provides that:

97.-(1) The costs of and incidental to any proceeding before the Board, except as herein otherwise provided, shall be in the discretion of the Board, and may be fixed in any case at a sum certain or may be assessed.

(2) The Board may order by whom and to whom any costs are to be paid, and by whom the same are to be assessed and allowed.

(d) section 24 of the Ontario Highway Transport Board Act provides that:

24.-(1) The costs of and incidental to any proceeding before the Board are in its discretion and may be fixed in any case at a sum certain or may be taxed.

(2) The Board may order by whom and to whom any costs are to be paid and by whom they are to be taxed and allowed.

(e) section 41 of the Human Rights Code provides, with respect to Boards of Inquiry, that:

41.-(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

(2) Where a board makes a finding under subsection (1) that a right is infringed on the ground of harassment under subsection 2(2) or subsection 5(2) or conduct under section 7, and the board finds that a person who is a party to the proceeding,

(a) knew or was in possession of knowledge from which the person ought to have known of the infringement; and

(b) had the authority by reasonably available means to penalize or prevent the conduct and failed to use it,

the board shall remain seized of the matter and upon complaint of a continuation or repetition of the infringement of the right the Commission may investigate the complaint and, subject to subsection 36(2), request the board to re-convene and if the board finds that a person who is a party to the proceeding,

(c) knew or was in possession of knowledge from which the person ought to have know of the repetition of infringement; and

(d) had the authority by reasonably available means to penalize or prevent the continuation or repetition of the conduct and failed to use it,

the board may make an order requiring the person to take whatever sanctions or steps are reasonably available to prevent any further continuation or repetition of the infringement of the right.

(3) Where a board of inquiry for any reason is unable to exercise its powers under this section or section 39, the Commission may request the Minister to appoint a new board of inquiry in its place.

(4) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

(5) The Board of inquiry shall make its finding and decision within thirty days after the conclusion of its hearing.

(f) section 32 of the Expropriations Act provides that:

32.-(1) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Board and the amount awarded by the Board is 85 per cent, or more, of the amount offered by the statutory authority, the Board shall make an order directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer who shall assess and allow the costs in accordance with this subsection and the tariffs and rules prescribed under clause 44(d).

(2) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Board and the amount awarded by the Board is less than 85 per cent of the amount offered by the statutory authority, the Board may make such order, if any, for the payment of costs as it considers appropriate, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer who shall assess and allow the costs in accordance with the order and the tariffs and rules prescribed under clause 44(d) in like manner to the assessment of costs awarded on a party and party basis.

(g) sections 20, 21, 22, 27 and section 12 of the Schedule (under section 5) of the Arbitrations Act provide that:

20. Where at a meeting of arbitrators of which due notice has been given no steps are taken in consequence of the absence of a party, or of a postponement at the request of a party, the arbitrators shall make up an account of the costs of the meeting, including the proper charges for their own attendance and that of any witnesses and of the counsel or solicitor of the party present and not desiring the postponement, and, unless under the special circumstances of the case they think that it would be unjust so to do, they shall charge the amount thereof, or of the disbursements, against the party in default or at whose request the postponement is made, and the last mentioned party shall pay the same to the other party, whatever may be the event of the reference, and the arbitrators shall, in the award, make any direction necessary for that purpose, and the amount so charged may be set off against, and deducted from, any amount awarded in that party's favour.

21.-(1) A party to an arbitration is entitled to have the costs thereof, including the fees of the arbitrators, or such fees alone, assessed by one of the assessment officers of the court upon an appointment that may be given by the officer for that purpose on the filing of an affidavit setting forth the facts.

(2) An assessment of the fees of the arbitrators may be had upon an appointment given at the instance of the arbitrators or any of them upon a like affidavit.

22.-(1) The assessment officer shall in no case, except as provided in section 18, assess higher fees than are prescribed to the arbitrators but, upon reasonable grounds, he or she may reduce the fees to any amount below the maximum prescribed, but not below the minimum, having regard always to the length of the arbitration, the value of the matter in dispute, and the difficulty of the questions to be decided, and the fees to be allowed to solicitors and counsel shall be as nearly as may be similar to the fees allowed upon a reference in the court, the scale to be determined by the assessment officer having regard to the value of the matter in dispute, but he or shall shall not assess more than one counsel fee to either party.

(2) The assessment officer may assess a reasonable sum for preparing the award.

(3) An appeal may be had from the assessment in the same manner as from an assessment officer's certificate of assessment of costs in an action.

(4) The assessment officer and the judge upon appeal from assessment have the power to reduce fees payable to the arbitrator and to counsel and solicitors where the arbitration has been unduly prolonged.

27. An order made under this Act may be made on such terms as to costs or otherwise as the authority making the order thinks just.

28. The costs of the reference and award are in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid.

(see also, section 11(2)(i) of the Alberta Labour Relations Code which enables the Alberta Board to award costs against the party initiating a proceeding or the party responding where the Board considers the proceeding or response "trivial, frivolous or vexatious".)

41. The Ontario Labour Relations Board has been created by the Labour Relations Act. As a creature of statute, the Board has no inherent jurisdiction; it has only the powers conferred upon it by statute. (Though this seems to be a rather trite propositions useful reference can be made, specifically with respect to the issue of costs, to Regional Municipality of Hamilton-Wentworth v. Hamilton-Wentworth Save the Valley Committee et al. (1985) 1985 CanLII 1957 (ON HCJ), 15 Admin L. R. 86 (Ontario Divisional Court), where, at pages 96 and 97, the court held that:

This Board [a joint board constituted under the Consolidated Hearings Act] being creature of statute can only exercise the powers conferred upon by the enabling of legislation.

And on the issue of costs, the court in that case went on to add that:

…..from the earliest of times it has been recognized that the power to award costs must be found in a statute.)

(See also Ontario Energy Board, 1985 CanLII 2086 (ON HCJ), [1985] 51 O.R. (2d) 333 (Ontario Divisional Court)).

42. Subsections 91(4), 104(13), and 105(1) and (2) of the Labour Relations Act provide that:

91.(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts

complained of;

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

104.(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions.

105.-(1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

(a) to require any party to furnish particulars before or during a hearing;

(a.1) to require any party to produce documents or things that may be relevant to a matter before it and to do so before or during a hearing.

(a.2) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce the documents and things that the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases;

(b) to administer oaths and affirmations;

(c) to admit and act upon such oral or written evidence as it considers proper, whether admissible in court or not.

(d) to require persons or trade unions, whether or not they are parties to proceedings before the Board, to post and to keep posted upon their premises in a conspicuous place or places, where they are most likely to come to the attention of all persons concerned, any notices that the Board considers necessary to bring to the attention of such persons in connection with any proceedings before the Board;

(e) to enter any premises where work is being or has been done by the employees or in which the employer carries on business, whether or not the premises are those of the employer, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any matter and post therein any notice referred to in clause (d);

(f) to enter upon the premises of employers and conduct representation votes during working hours and give such directions in connection with the vote as it considers necessary;

(g) to authorize any person to do anything that the Board may do under clauses (a) to (f) and to report to the Board thereon;

(h) to authorize the chair or a vice-chair to inquire into any application, request, complaint, matter or thing within the jurisdiction of the Board, or any part of any of them, and to report to the Board thereon;

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;

(j) to determine the form in which evidence of membership or application for membership or of objection to certification of a trade union shall be filed or presented on an application for certification and to refuse to accept any evidence not filed or presented in that form;

(j.1) to determine, on an application for a declaration terminating bargaining rights, the form in which and the time as of which evidence shall be filed or presented concerning employees who no longer wish to be represented by a trade union and to refuse to accept any evidence not filed or presented in that form or by that time.

(k) to determine the form in which and the time as of which evidence of representation by an employers' organization or of objection by employers to accreditation of an employers' organization or of signification by employers that they no longer wish to be represented by an employers' organization shall be presented to the Board in an application for accreditation or for a declaration terminating bargaining rights of an employers organization and to refuse to accept any evidence of representation or objection or signification that is not presented in the form and as of the time so determined.

(l) to determine the form in which and the time as of which any party to a proceeding before the Board must file or present any thing, document or information and to refuse to accept any thing, document or information that is not filed or presented in that form or by that time;

(m) to attach terms or conditions to any order.

Section 23(1) of the Statutory Powers Procedure Act provides that:

23.-(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

43. Except where legislation specifically so provides, or arguably in extraordinary circumstances, costs are not an instrument for procedural control. In any event, the authority to award costs is not derived from the authority administrative tribunals are given to control their own processes. In Reference Re National Energy Board Act, 1986 CanLII 4033 (FCA), [1986] 19 Admin L.R. 301, the Federal Court of Appeal expressly held that subsection 10(3) [now section 11(3)] of the National Energy Board Act, which is analogous to subsections 104(13) and section 105(2), in the Ontario Labour Relations Act, does not empower the National Energy Board to award costs. (Subsection 10(3) [now subsection 11(3)] of the National Energy Board Act read (and now reads):

The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, enforcements of its orders, the entry upon an inspection of property and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges are vested in the Superior Court of Record.)

Consequently, the fact that the Board is the master of its own procedure does not confer a jurisdiction to award costs. In addition, the specificity with which the Board's powers have been enumerated in the Labour Relations Act, and the omission of any reference to costs in these, suggests that the Board has no costs jurisdiction.

44. Further, it is not apparent that the Board requires the power to award costs with respect to either procedural matters or the merits of matters which come before it. For practical purposes, the Board has always operated without any perceived need to award costs. There is nothing in the Board's history or jurisprudence which suggests that the Board requires the jurisdiction to award costs in order to fulfill its statutory mandate or obligations. There is nothing which indicates that the awards of costs which have been made had any effect on the labour relations of the parties involved, or on the labour relations in Ontario in any general way. Nor is there any indication that the Board's practice of not awarding costs has had any labour relations effect, either in specific cases or generally.

45. We have already noted that the Board has awarded costs as part of a "make-whole" remedy in the exercise of the Board's remedial power and discretion under subsection 91(4) of the Labour Relations Act. That approach has been adopted in British Columbia. In Delta Optimist, [1980] 2 Can. LRBR 227, the then British Columbia Labour Relations Board held that:

Since this Board's authority to award compensation or provide any other remedies similarly hinges upon a finding of a violation of the Code (see Sections 8(4) and 28 (1), [now sections 14 and 133 respectively] a policy of awarding legal costs would suffer from the weakness identified by the Ontario Board; a respondent who successfully defends against a complaint in circumstances such as, for example, a frivolous allegation, could not be awarded legal costs.

In support of the Union's claim for compensation for its litigation expenses, counsel for the Union points out that the Ontario Board did not preclude the possibility that legal costs might be ordered in some cases. Upon noting its unwillingness to grant legal costs, the decision nevertheless states that: "This policy may be reviewed by the Board from time to time". Counsel for the Union, moreover, provides a partial answer to the concern expressed by the Ontario Board by emphasizing this Board's express authority to "reject the complaint at any time" if it is "without merit" (see Sections 8(5) and 28(4). But that is only a partial answer inasmuch as a respondent may incur substantial legal costs to demonstrate that a complaint is without merit.

There are, as well, other reasons that the Board is reluctant to award costs except in extreme circumstances such as those warranting a make whole remedy. Since the Board has no authority to make an order for compensation in relation to contraventions of Part V of the Code, any policy respecting legal costs could not be consistently and uniformly administered in relation to all complaints and applications under the Code. In addition, we do not take the Union to be arguing that legal costs should be awarded in all matters before the Board and thus any policy with respect to costs would require that distinctions be drawn between those cases where an order for costs would be warranted and those where it would not. It is hard to imagine a judgment less amenable to predictable, objective standards. Furthermore, a policy of granting legal costs would necessitate an administrative procedure or apparatus to review the reasonableness of the legal costs claimed and that exercise is not conveniently achieved by the resources available to the Board; it is undertaken at this time only in those extreme cases where a make whole remedy is appropriate. Finally, while the Union has undeniably been put to considerable cost and expense by reason of the Respondents' strategy in this case, compensation for litigation expenses would not remedy the real harm inflicted by the unfair labour practices committed by the Respondents or the aggravated effect of those unfair labour practices.

In Scott v. B. C. Government Employees' Union [1992] No. C104/92, Industrial Relations Council (as it then was), it held that:

There is no question that legal costs and related expenses are within the ambit of the Council's jurisdiction under Section 8 and 28 to fashion remedies which respond appropriately to the dispute between the parties.

A review of the relevant jurisprudence reveals that, like all remedies the Council my award, legal costs are, first and foremost, discretionary, a function of policy, and only awarded where the Council finds a breach of the Act. Second, this remedy, like all others, must fall within the governing notion of remedies being remedial, not punitive. Third, legal costs may be awarded where traditional remedies have proven ineffective. Fourth, if they are going to be awarded at all, it is normally in cases where the conduct complained of has been particularly egregious. Fifth, the most usual circumstances in which legal costs are awarded are Section 7 applications where different considerations apply.

Where the Council upholds an individual's Section 7 complaint of unfair representation by a trade union, the reasoning is, generally speaking, that the individual union member and the union have divergent and conflicting interests. Independent counsel for the individual is perceived as the best way to protect the individual's interests. The equities of the situation demand that lack of financial resources not prevent the individual from pursuing rights under the Act or be financially penalized for doing so: consequently, a make-whole order is made.

Applying these principles to the case at hand, I find first, that an order for legal cost is not necessary in order to respond appropriately to the dispute between the parties. In my view, the remedies I did award amply compensated the Union and the employees for the Employer's actions.

Second, I did not find the Employer's actions to be so egregious as to justify an award of legal costs. In fact, in my original decision I noted that the Union had acted aggressively and with some degree of provocation toward the Employer both before and after certification and particularly at the second and third collective bargaining sessions.

Third, there is no evidence before me that an award of legal costs and related expenses would be equitable in the particular circumstances of this case. If such an order does not address an inequity and set it right, then such an order would, in my view, be punitive.

Fourth, except for the successful Section 7 complainant, policy considerations generally urge the Council away from rather than toward, granting legal costs to successful applicants. At least one reason for this is the difficulty of awarding legal costs to a successful defendant. One consequence of the requirement that a remedy can only follow a breach of the Act is that an employer or a union that successfully defends against what turns out to be an unsubstantiated or unwarranted complaint, cannot be awarded its legal costs. This lack of balance in the legislation suggests that it is only in exceptional circumstances that legal costs should be awarded.

The Union's request for an order against the Employer for legal costs and related expenses is dismissed.

Subsequently the Industrial Labour Relations Council of British Columbia held that it had the jurisdiction to award costs under provisions in the then British Columbia Industrial Relations Act (now the Labour Relations Code) analogous to subsection 91(4) in the Ontario Act. In dismissing a request for reconsideration of this decision, reported at (1993) 16 CLRBR (2d) 65, the Industrial Relations Council stated that:

Two general principles govern all remedies awarded in the labour relations context, including make-whole orders. First, the purpose of the Council's remedial authority is to place the aggrieved party, so far as possible, in the position it would have been, had the breach of the Act not occurred: Clarke Reefer Lines Ltd., B.C. I.R.C. (No. C223/88); White Spot Ltd., supra. Second, remedies must be compensatory in nature and not punitive. Century Plaza Hotel Ltd. and H.R.E. U., Local 40, (1979] 3 Can LRBR 49 (BCLRB No. 32/79); Ron Hatfield and Wayne R. Lipskie, B.C. I.R.C. (No. C63/90), reconsideration of IRC No. C1OS/87.

It is beyond dispute that, in appropriate circumstances, the Council may award legal costs as an element of a remedial order: C.P.U. Local 115 v. McNamara, B.C.5.C. (Vancouver Registry A891161), December 18, 1989, upholding Tony McNamara and Pierre Comeau, B.C.I.R.C. (No. C302/88) and B.C. I.R.C. (No. C25/90) [reported 6 CLRBR (2d) 290]. The Council and the predecessor Labour Relations Board have, however, been very reluctant to exercise the authority to award legal costs. This reluctance arises from an imbalance in the availability of the remedy to the labour relations community. Under the Act, a statutory violation must be found before a remedy can be awarded: The Delta Optimist and Vancouver-New Westminster Newspaper Guild, Local 115, [1980] 2 Can LRBR 227 (BCLRB No. 26/80); Harry Metz, B.C. I.R.C. (No. C77/89). As a result, successful defendants are unable to secure legal costs. The one-sided nature of this potential remedy leads to a perception of unfairness, and militates against its general acceptance as a matter of policy. Also, a policy of awarding legal costs cannot be consistently applied because there is no authority to award such compensation under Part S of the Act. In response to these factors, the Council has denied requests for legal costs unless exceptional and compelling circumstances exist: Imperial Parking Ltd., B.C. I.R.C. (No. C220/89).

Where the Council and the Board have made an award of legal costs, it has generally been in the context of a make-whole order. The development of the make-whole order, including an order than an employer pay the union's legal costs, began in 1975 when the Board's remedial authority under s.28 was expanded. The relevant principles underlying make-whole orders were summarized in Kidd Brothers Produce Ltd. and Miscellaneous Workers etc. Union, Local 351, [1976] 2 Can LRBR 304 (BCLRB No. 53/76) [quoted in Century Plaza Hotel Ltd., supra, at pp. 70-71]:

First, these orders are of a remedial rather than a penal nature. Second, they are employed in situations where the use of a more traditional remedy, i.e., a cease and desist order, would be inadequate. In these instances, the Employer has often “…..already harvested the 'fruits of its violations"'. Third, these orders are often issued in cases where the Board has withheld a draconian form of relief. Fourth, these orders arise under the Code, from the expansion of the Board's remedial authority. The purpose of the expansion was to remove the ". . .artificial restrictions on the type of remedy which may be ordered..." in the new situation created by the Code where the Board finds itself "...the chief agency for giving effect to the law...".

In the non-s. 7 context, make-whole orders involving legal costs have traditionally been granted in circumstances where an employer's conduct deliberately frustrated remedies obtained by the union in earlier proceedings: Kidd Brothers Produce Ltd., supra; Robinson Little Co., B.C.L.R.B.letter decision dated March 15, 1986, referred to in Century Plaza Hotel Ltd., supra; and Century Plaza Hotel Ltd., supra.

46. The B.C. Board has recently confirmed this approach to costs for all cases, including fair representation proceedings, in Allan Kelland and David Dorris, a decision dealing with requests for reconsideration in two unrelated duty of fair representation proceedings (BCLRB No. B419/93, December 14, 1993).

47. The British Columbia Supreme Court has confirmed this jurisdiction to award costs on a make-whole basis in United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 170 v. IRC, Steisslinger et. al., March 9, 1993, Vancouver Registry A922146, unreported (an application for judicial review of the Industrial Relations Council of British Columbia's decision in a duty of fair representation case: IRC No. C68/91; reconsideration denied, IRC No. C231/91). Previously, in McNamara v. Canadian Paperworkers Union, Local 1115, (1989) B.C.J. No. 2447, Vancouver Registry No. A891161 (an application for judicial review of an LR.C. decision in that case at [19891 20 CLLC ¶16,014), the British Columbia Supreme Court held that:

8. In my opinion, the provision to "rectify a contravention of the Act" in s. 8(4)(b) and 28(1)(b) coupled with an express provision in s. 28(1)(d) to "make an order determining and fixing the monetary value of an injury or loss suffered by a person as a result of a contravention of the Act" clearly indicates the legislative intent to include within Council's broad remedial jurisdiction a mandate to order costs in appropriate circumstances. The next question I must then consider is whether Council's decision to order that the Union reimburse McNamara and Comeau's reasonable legal and other expenses, including costs was patently unreasonable? I think not.

9. I am of the view that Council's order in this case was consistent with its past practice and with the spirit and intent of section 27 of the Act. It is the established policy of Council that where other effective remedies exist a make whole remedy will not be ordered. In the case at bar, Council ordered costs because of the dilatory conduct of the Union to restore the membership rights of McNamara and Comeau frustrating the effect of the Original Panel's order. From the outset, Council repeatedly expressed its position that its order be implemented in a timely manner so as to provide an effective remedy to McNamara and Comeau. In Council's opinion there was no other practical way to remedy the wrong and the special expertise of Council put it in the best position to determine the appropriate remedy. It is the very circumstances found in this case that renders an order for costs reasonably within the scope of Council's remedial jurisdiction.

(Subsequently, the Industrial Relations Council dealt with the costs issues in that case subject to taxation at (1990) 6 CLRBR (2d) 290.)

48. The Canada Labour Relations Board has also held that it has the power to award costs against a respondent under its rectification power, and against an unsuccessful complainant under its power to make orders incidental to the objects of the Canada Labour Code (National Bank of Canada, 84 CLLC ¶16,038; British Columbia Telephone Co., (1986) 65 CLRBR di 93; and see Udvarkely, [1979] 2 Can LRBR 569 and Lalancette (1990) 14 CLRBR (2d) 80). However, the Canada Board has displayed the same disinclination to award costs as the British Columbia labour relations tribunal of the day and the Ontario Labour Relations Board.

49. With respect, we find ourselves unable to follow a make-whole approach to costs.

50. First, the make-whole theory is inconsistent with the theory and purpose of legal costs as such (see paragraph 38, above).

51. Second, as the jurisprudence of this Board and in British Columbia suggests, only a successful applicant is entitled the costs on such a theory. Consequently, make-whole costs are neither reciprocal, nor fault-based in any traditional sense.

52. Third, a make-whole theory suggests that costs flow from a breach of the Labour Relations Act (or other legislation under which the Board has jurisdiction). Costs do not form part of any common-law theory of damages. Costs have not been considered to be a form of damages. Costs are not remedial in the sense that an award of costs as such cannot properly be dependent upon a breach of a statute.

53. Fourth, the number and kind of cases in which make-whole costs have been awarded suggests defects in the make-whole theory of costs. Why isn't every successful applicant entitled to be made whole? Why do costs depend on the nature or degree of a breach of the Labour Relations Act? If costs are awarded only to successful applicants in some cases in which a responding party's conduct has been found to be particularly egregious, are costs not being used in a punitive way; that is, in order to penalize a particularly "bad" responding party, rather than as compensation for damages incurred as a result of a breach of the legislation?

54. Fifth, how does the Board deal with the situation of an unrepresented successful applicant in any case, but particularly in an egregious case, since it appears that in most Canadian jurisdictions, including Ontario and British Columbia, a litigant not represented by counsel cannot, on any traditional theory of legal costs, recover costs other than disbursements? Does this mean that only successful applicants represented by counsel are entitled to be made-whole? (See, Re Tate and Deerhurst Investments Inc. Ltd., 1987 CanLII 5415 (ON HCJDC), [1987] 44 D.L.R. (4th) 573 (Ontario Divisional Court); O'Connell v. Custom Kitchen & Vanity, (1986) 56 O.R. (2d) 58 (Ontario Divisional Court); Kowarsky v. Quebec (Procurer General, (1988) 21 Q.A.C. 196 (Court of Appeal); Kendell v. Hunt, supra; UFFA Management Ltd. v. Accurate Bailiff Collection Agency Ltd. [1990] 19 ACWS (3d) 1381 (B. C. Court of Appeal); Skidmore v. Blackmore, [1990] 5 WWR 634 (B. C. County Court); Law Society of P.E.I. v. Johnston 1988 CanLII 1365 (PE SCAD), 54 D.L.R. (4th) 18 (P.E.I. Court of Appeal); but see also, McBeth v. Governors of Dalhousie College & University, 1985 CanLII 5664 (NS SC), 68 NSR (2d) 265 (Nova Scotia Supreme Court); 1986 CanLII 4007 (NS CA), 26 D.L.R. (4th) 321 (Nova Scotia Supreme Court, Appellate Division), in which costs were awarded to a successful unrepresented non-lawyer party on the basis of the Canadian Charter of Rights and Freedoms, a basis specifically rejected in Law Society of P.E.I. v. Johnston, supra, and Skidmore v. Blackmore, supra; and see also Davidson v. Canada, 1989 CanLII 9459 (FCA), 36 Admin L.R. 251 where the Federal Court of Appeal relied on section 15 of the Charter and held that a lawyer representing himself is entitled to costs only to the same extent as any other self-represented litigant and not to costs relating to his own services as a solicitor; and see also Jaffe v. Dearing, (1992) 32 ACWS (3d) 1276 (Ontario Court General Division) where costs were awarded to a Florida lawyer who successfully acted for himself in the claim for fees and where the court noted that the former rule had been abolished in England by legislation (The Litigants in Person (Costs and Expenses) Act, 1975) - something which we would have thought suggests that an unrepresented litigant is not entitled to costs unless legislation provides otherwise.)

55. A number of reasons have been advanced as justification for the apparent discrepancy between a true make-whole approach to costs and the actual practice of awarding costs in so few cases that the cases in which costs have been awarded can safely be regarded to be anomalies: (a) costs will discourage parties from pursuing meritorious claims; (b) it is in the public interest that labour relations disputes be settled and costs will interfere with the settlement process; (c) awarding costs will have a negative impact on labour relations by identifying a winner and a loser, particularly where there is a continuing relationship between the parties; (d) costs would require the Board to engage in a time consuming process which would distract the Board from its primary task under the Labour Relations Act; (e) the difficulties involves if success is divided between the parties; (f) the Board is ill-equipped to assess and award costs. Whatever the merits of these policy laden arguments, they beg the jurisdictional question. The question is not whether the Board should be able to award costs generally or in a specific case, but whether it has the jurisdiction to do so at all.

56. Accordingly, we return to the first question, which is not addressed by any of the policy laden reasons for not awarding costs; that is, does the Board have the jurisdiction to award costs? As a creature of statute, an administrative tribunal like this Board has only the powers conferred upon it by legislation. The Board has no inherent jurisdiction to award costs. Further, in the context of the recent comprehensive review of the Labour Relations Act and the express granting to other tribunals of an authority to award costs, in addition to the remedial jurisdiction and the power to control their own practice and procedures which, as does this Board, these tribunals enjoy, there is no legislation which expressly gives the Board an authority to award costs. Finally, no costs jurisdiction can be implied, either from the provisions of any legislation, or from any apparent need for the Board to be able to award costs.

57. Nor is the situation any different when the Board acts as an arbitrator under section 126 of the Labour Relations Act, where the Board has all the powers of the Board and of a board of arbitration (Re International Association of Heat & Frost Insulators & Asbestos Workers, Local 95 and Master Insulators Association of Ontario et al., 1979 CanLII 1622 (ON HCJ), 25 O.R. (2d) 8 (Ontario Divisional Court)). In the absence of a specific provision in the collective agreement under which the grievance is brought, there is nothing which gives the Board an express or implied jurisdiction to award costs notwithstanding any suggestion to the contrary in cases like Joe Arban Contractor Ltd., supra, (see, Parlay Construction Ltd., [1984] OLRB Rep. Aug. 1120; Standard Insulation Ltd., [1984] OLRB Rep. Nov. 1622; Re Pictou District School Board and CUPE, Local 867, 1987 CanLII 8754 (NS LA), 34 LAC (3d) 307; City of Dawson Creek, 1987 CanLII 8761 (BC LA), 28 LAC (3d) 372).

58. In the result, we find ourselves constrained to conclude that in the absence of a specific provision in a collective agreement in a section 126 proceeding the Board has no jurisdiction to award legal costs as such. This is not to be taken to be a suggestion that the Board does not have the jurisdiction to fashion remedies appropriate to the cases which come before it. The Board has the power and may find it appropriate to award damages which include things which look like but are not "legal costs" properly so called, or which are "legal costs" but are also damages arising out of a breach of the Labour Relations Act which are deserving of compensation.

59. In this case the Labourers' Provincial Agreement does not contain a provision which gives the Board the authority to award costs. In the result Bellai's request for costs must be dismissed.

60. However, the Board does find it appropriate to direct Local 247 to reimburse Bellai for its share of the subsection 126(4) expenses incurred with respect to the July 29, 1993 hearing (see Ontario Construction Limited, [1993] OLRB Rep. July 630).