United Steelworkers of America v. Shelter Canadian Properties Limited, 1994 CanLII 9881

[1994] OLRB Rep. April 482

2061-93-M United Steelworkers of America, Applicant v. Shelter Canadian Prop­erties Limited, Responding Party

BEFORE: Judith McCormack, Chair, and Board Members G. 0. Shamanski and H. Peacock.

DECISION OF THE BOARD; April 25, 1994

1. This is an application under section 92.1 of the Labour Relations Act in which the appli­cant requests an order reinstating Alex Bijelic and John Kelly to their previous employment on an interim basis, pending the disposition of a complaint filed under section 91 of the Act.

2. This matter came on for hearing on September 29, 1993, and the Board issued the fol­lowing decision on September 30:

3. The Board hereby directs that Shelter Canadian Properties Limited forthwith reinstate John Kelly and Alex Bijelic on an interim basis, pending the disposition of the section 91 complaint in this matter. For the clarification of the parties, interim reinstatement involves both the previous benefits of employment and the obligations. The previous benefits of employment include resi­dence, and the obligations of employees include a requirement to carry out their duties with civility and co-operation.

4. The Board further directs Shelter Canadian Properties Limited to post the attached notice in appropriate places in the workplace where it is most likely to be seen by employees.

5. The Board further directs that the section 91 complaint in this matter and the certification application be rescheduled to commence on October 6, and continuing on from day to day thereafter until their completion or as otherwise ordered by the Board.

6. Our reasons will follow.

We now provide our reasons.

3. The responding party in this matter is a property management company which employ­ees Messrs. Bijelic and Kelly as resident superintendents at a King Street property in Toronto. The applicant union asserts that an organizing campaign began on July 15th of this year with respect to the responding company's employees, and that these two resident superintendents were the princi­pal inside organizers. The campaign culminated in the filing of an application for certification with the Board on September 15, 1993. The company acknowledges that it received a package of mate­rial from the Board on September 20, 1993, which included notice of the certification application. However, the company asserts that the package was forwarded to another office and remained unopened until September 2lth. The employment of Messrs. Bijelic and Kelly was terminated on September 20, 1993. The union then filed a section 91 complaint alleging that these two individuals had been discharged contrary to the Labour Relations Act, and brought this application for interim relief.

4. Section 92.1 provides as follows:

92.1.-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

5. The Board's approach to this section is reflected in a number of cases in which it has been applied. The first is Loeb Highland, [1993] OLRB Rep. March 197 where the Board made these observations:

6. In other words, it is incumbent upon the Board to develop a sound and indigenous jurispru­dence in regard to interim orders which reflects the complex and unique realities of labour rela­tions. While we echo the views of the British Columbia Industrial Relations Council to the effect that common law principles may provide us with some useful insight, if we were to import in a wholesale or unreflective manner the kinds of tests applied by Courts in considering interim and interlocutory relief, we would be failing in our responsibility as an expert tribunal to develop a jurisprudence attuned to the distinctive features of labour relations in this province. This latter point, that our jurisprudence should reflect the realities of Ontario labour relations in particu­lar, is also important. While we have found much that is instructive in the cases we have reviewed from other provinces, we also feel constrained to note a number of differences in the legislative or other authority which gives rise to their interim powers, in the purposes of their respective labour relations statutes and in the history and climate of their labour relations. Again, an uncritical adoption of any one of the various approaches in these cases would not serve the Ontario labour relations community well.

7. With this in mind, we turn first to the company's argument that the Board's interim relief power should be used only in rare and exceptional circumstances. We do not find this a particu­larly useful approach. Section 92.2(1) contains no hint that it should be reserved to extraordi­nary cases; indeed, unlike some corollary provisions which contain threshold tests, the Ontario provision is available in every proceeding before the Board. This is not to say that the prospect of a flood of interim relief applications does not cause us some concern. However, we think it more appropriate to start from the position of attempting to elucidate a fair and intelligent labour relations test for section 92.2(1). Those cases that meet that test should then attract interim relief, regardless of how many or how few they may be.

8. In considering the dimensions of such a test, we note that the cases from other provinces reveal an assortment of approaches and considerations in addressing interim order requests. However, there are a number of common themes running through them which may be summa­rized in the following manner. Most refer to some kind of threshold test in regard to the merits of the main application with reference to which interim relief is sought. Some require that a case not be frivolous or vexatious, a requirement which has also been described as the equivalent of whether there is a serious issue to be tried. Other cases have referred to whether there is an

arguable case of breach, or the possibility of a legitimate claim, and a number require that there be a prima facie case, or that there be a strong prima facie case. Secondly, most cases involve a review of the harm which might befall the applicant if the interim order is not granted, and whether that harm is irreparable. Finally, the cases refer to the balance of convenience between the parties.

21. Turning first to the idea of a threshold test with respect to the merits of the main application, we have some concern about applying a high level of scrutiny to that application at the time of a request for an interim order. To the extent that such scrutiny may imply a form of prejudgement of the final disposition of the main matter, it is not particularly compatible with the scheme for interim relief set out in the Act and the Board's Rules of Procedure. More specifically, the pro­cedure for interim relief contemplated by the Board's Rules reflects the inherent necessity for expedition in these matters. To that end, evidence is filed by way of certified declarations which are not subject to cross-examination. Indeed, section 104(14) of the Act and Rules 92 and 93 indicate the Board may not hold an oral hearing at all, but may receive the parties' arguments in writing as well.

22. This means that the Board is not in a position to make determinations based on disputed facts. In these circumstances, it would normally be unfair for an interim order to be predicated to any significant extent on a decision with respect to the strength or weakness of the main case. That should await the hearing of the main application when the Board hears oral evidence and can make decisions with respect to credibility based on the usual indicia, in a context where the parties have a full right of cross-examination. This is particularly important in cases such as the section 91 complaint to which this application relates, where decisions are often based on infer­ences and the various nuances of credibility play a key role. In other words, the granting of interim relief in this context should usually be based on criteria which minimize prejudging the merits of the main application.

23. Our practical concern that the Board's decisions on interim relief be insulated to some extent from the merits of the main application is reinforced by the language of section 92.1(1), which provides that an interim order can be obtained in an intended proceeding as well as in one already filed. If an interim order is available even before the main proceeding has been com­menced, it suggests that interim relief is less dependent upon the main application than one might otherwise think.

24. Moreover, a number of the provisions of the Labour Relations Act, including some of those which the applicant alleges were breached in the complaint in this matter, are subject to a reverse onus where a responding party must establish that it did not violate the Act. The effect is to complicate an assessment of the merits, including the issue of what would constitute a prima facie case in these circumstances. In addition, the interim order power contained in sec­tion 92.1 applies to an extensive package of legislative amendments, many of which involve new or reshaped jurisdiction for the Board. This means that it may be difficult to evaluate the strength of the merits of any particular case, at least until the Board has had an opportunity to develop case law in these new areas. Lastly, even where the Board can rely on well-established jurisprudence, there must be some allowance for novel arguments to be presented to it from time to time. While no tribunal encourages frivolous applications, it is also true that the Board must be responsive to changes in labour relations if its jurisprudence is to remain vital and rele­vant.

25. At the same time, it is clearly essential that there be some connection between interim relief and the merits of the main application. Common sense suggests that an interim order is inher­ently subordinate to the main application, a proposition which is given added cogency in this context by Rule 88. That rule makes it clear that a copy of the main application must be filed along with the request for an interim order, which to some extent offsets our view of the effect of section 92.1 in intended proceedings. Isolating the interim application by the absence of any requirement with respect to the strength of the main application might also carry with it the pos­sibility of abuse, and might strand the Board in a situation where grounds for an interim order might be made out but the main application was entirely and obviously without any merit what­soever.

26. With this in mind, we find it most appropriate to set out as one requirement in a test forinterim relief that the main application must reflect an arguable case. By this we mean that if the applicant's assertions can be established, there is at least an arguable breach of the Act, or an arguable case for a remedy within the parameters of some provision of the Act. While leaving room for some innovation by parties, such a test protects the integrity of the Board's processes by precluding interim relief where the main application is frivolous or vexatious. This provides the Board with an element of security and some coherence between the main application and the interim relief power, but gives recognition to our other concerns described above.

27. We also find it more appropriate to consider this requirement as simply one ingredient in a test for interim relief, rather than an initial threshold of some kind. Setting up an assessment of the merits as a preliminary hurdle in an interim relief test suggests a two-step analysis which we find unnecessarily formal in the circumstances.

28. Returning to the themes reflected in the interim order cases from other provincial boards, the next issue is the concept of irreparable harm. This formulation is not as useful to us as it might first appear. In the first place, a review of the cases suggest that it is a rather elastic con­cept, which is often interpreted differently from one case to another. Secondly, the experience of this Board is not that there are two distinct categories involving cases on the one hand where entirely adequate remedies can be applied, and those on the other where the available remedies are clearly deficient. Rather, it is a more accurate reflection of the Board's experience to say that most remedies cannot cure every aspect of the harm which may flow from a breach of the Act, and that at best, the Board attempts to provide some rough approximation. Labour rela­tions matters often involve a cluster of intangible and fluid social relations which may be extraordinarily time-sensitive. Once these relations are ruptured, they are not easily restored through the sometimes clumsy operation of subsequent remedies. Indeed, it goes without saying that remedies are, by their very nature, a substitute for what should have happened.

29. At the same time, when creatively exercised, the Board's wide remedial powers under sec­tion 91, for example, can often go a considerable distance toward repairing the mischief caused by violations of the Act. Any consideration of interim relief should also take into account the Board's experience in developing remedial orders which speak specifically to labour relations problems. Moreover, we recognize that the imposition of relief before an adjudication on the merits is inherently problematic to some extent.

30. In this context, we find it more useful to acknowledge that in terms of our ability to address harm through remedies available at the disposition of the main application, what we are really dealing with is degrees of adequacy on a continuum of damage. Attempting to force this reality into mutually exclusive legal pigeon holes such as irreparable damage as opposed to, say, repair­able damage, is more artificial than we need to be, and does not reflect the Board's practical experience.

31. If the concept of irreparable harm does not shed as much light as we would like on the test for an interim order, there is no doubt that some analysis of harm is still central. In considering the shape of that analysis, it is useful to return to the Board's own jurisprudence which empha­sizes the importance of effective remedies as a critical component of the scheme of the Labour Relations Act. As the Board said in Radio Shack, [1979] OLRB Rep. Dec. 1220:

It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An adminis­trative tribunal with a substantial volume of litigation before it faces a great tempta­tion to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable; they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation.

32. Moreover, both the Board and the Courts have long recognized that delay poses special problems in labour relations matters. In Consolidated-Bathurst Packaging Ltd. v. I. W. C., Local 2-69 (1984) 2 O.A.C. 277, the Court noted:

there is a fundamental principle of labour law that injustice and detriment to the labour relations of an employer and employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the courts may be summarized by saying:

In the law which has grown up around labour relations in this province and indeed elsewhere where the common law is pursued, the overriding princi­pal invariably applied is that labour relations delayed are labour relations defeated and denied: The Journal Publishing Company of Ottawa Ltd. v. The Ottawa Newspaper Guild, Ont. C.A. released May 17/77 (unreported) [since reported [1977] 1 A.C.W.S. 817 (Ont. CA.)].

Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc. (1983), 1983 CanLII 1852 (ON HCJ), 41 OR. (2d) 287, the Court commented that delay in labour relations matters often works unfairness and hard­ship. To some extent then, the Board must ensure that delay does not in itself decide a case.

33. The importance of effective remedies, their general imperfection in labour relations, and the corrosive effects of delay all serve to highlight the critical role interim relief has to play in this area. If harm is not easily cured after the fact, and if delay is critical, it makes some sense to emphasize preventing that harm at the earliest possible point. However, it must be recognized that preventing one harm, to a union applicant for example, may well have a harmful labour relations effect on a responding employer. This suggests that a general predisposition towards preventing harm, rather than curing it, applies to the interests of both parties. In other words, the Board must balance the harm to each party in considering whether to grant an interim order. As a result, rather than separating out the concept of irreparable harm which appears to be a poor fit with the Board's experience in remedial matters, and then proceeding to an exami­nation of the balance of convenience, we find it more consonant with labour relations realities to adopt an approach where we consider both what harm may occur if an interim order is not granted, and what harm may occur if it is. This does not mean that the notion of irreparable harm is entirely irrelevant. It merely reduces it to one of a number of aspects of harm which the Board might consider in this area.

34. Of course, this leaves open to some extent the sort of harm we envision as relevant to this balancing process. Given the fact that this jurisprudence is in its infancy, it makes sense to allow the parameters of that harm to evolve in the context of concrete situations which will be pre­sented to us. Suffice it to say at this point that balancing the harm to the parties is not an exer­cisc which takes place in a vacuum, but rather in the context of the purposes and scheme of the Act, which also serve to provide definition for the type of harm we would find persuasive. It is also worth noting that the Board has more flexibility in crafting interim orders than it may in final remedies. Because they are temporary, and because they are not dependent on a finding of a violation, for example, the Board has the relative luxury to conceive of interim justice as an endeavour in problem-solving, rather than fault-finding.

35. In Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242 the Board made these comments:

36. In deciding the issue of interim relief, however, it is necessary for this panel to have some regard for the potential merits of the complaint. Interim relief is important to this applicant pre­cisely because it serves to preserve rights pending the hearing of its complaint. It would be a dis­tortion of the process if the Board granted such relief no matter how frivolous the complaint itself. The applicant urges the panel to find that it has established, at the least, a prima facie case. Counsel for the company suggests that the Board should look to see whether the applicant can show it is likely to succeed on merits of the complaint.

37. In our view, the complaint makes out an arguable case. We need not determine to what extent the complaint makes out a strong case, viewing it in its most favourable light. Simply put, it is plausible that a panel hearing it may find that the Act has been violated, and order a rem-edy. We note that there have been occasions where the Board has found letters from an employer to employees in the context of an organizing drive to constitute violations of the Act.

38. In this context, the goal of this panel's ruling is the preservation of the right of the union to a meaningful remedy, should the complaint be upheld, while at the same time intruding as little as possible on the employer's interests.

It. Both counsel have submitted that the Board ought to look at the harm that would ensue to each of the parties' interests, should the Board grant or not grant interim relief (although they have used different terms, such as the "balance of convenience", or "significant harm" to describe the notion). We agree that the the relative harm of granting or withholding relief is a relevant consideration. In our view, the harm to the union in this case relates to the adequacy of relief in the complaint. The allegations are that the letter, and the manner of its distribution, unduly influences employees in the exercise of their choice to join or not to join a union. If these allegations are proven, it will be difficult for the Board to order a remedy which truly places the union back in the position in which it would have found itself, but for the breach of the Act. By the time the complaint is adjudicated, there will be no returning to the point in the organizing drive prior to the actions of the company, particularly if they continue.

7. The Board took a similar approach in Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358:

8. While the approach and experience of the courts in dealing with temporary injunctions may be useful, at least by analogy, for the purposes of articulating the kind of inquiry the Board per­forms in adjudicating applications for interim orders, we are of the view that it would be inap­propriate to rigidly adopt that approach and mechanically apply it to the unique kinds of labour relations problems with which this Board must deal. Thus, for example, we find the employer's reliance on the distinction between mandatory and prohibitory injunctions (and the stricter stan­dards which may be applied in the former cases) to be of little value in the labour relations con­text. Labour relations involve a fluid and ever shifting landscape and any attempt to character­ize the particular relief being sought as the equivalent of a mandatory rather than a prohibitive injunction may be subject to fortuitous circumstances capable of significant change from one day to the next. Should the Board adopt a different standard depending on whether a union seeks to restrain an employer from implementing the announced lay off of a union organizer or, alternatively, seeks, say a day later, to have the laid off organizer returned to work? More tell­ing, perhaps, is the fundamental difference between the nature of relief commonly available and granted in the courts as opposed to the typical remedial response that the labour relations com­munity has come to expect from the Board (or even from labour arbitrators). While relief like temporary mandatory injunctions or specific performance is indeed rare in the courts, the labour relations equivalent remedy of reinstatement to employment is part of the daily diet of this Board. We are consequently of the view that extreme caution ought to be exercised in respect of any attempt to transplant approaches or jurisprudence from the courts to this Board.

9. Having sounded this warning, however, it is also clear that portions of the established court approach may be appropriately adapted to fit the labour relations context. The parties did not seriously dispute that an applicant for an interim order could well expect the Board to perform some assessment of the apparent merits of the main application. Indeed, the cases relied upon, whether decisions of the courts or of specialized labour relations tribunals, all indicate this. They differ, however, as to the nature of the standard to be applied, positing standards which range from insuring that the claim is not frivolous or vexatious to requiring a strong prima facie case. Before this Board determines where on this continuum it should locate this aspect of any test for granting interim orders, it is useful to consider the purpose and nature of these types of proceedings. We cannot lose sight of the fact that interim relief is interim - it is not a remedial response to any violation of the Act. There will be no remedial or other response unless and until the Board makes a finding in the main application that the Act has been violated or that other circumstances warranting a remedial or other response have been established. In this respect interim orders under section 92.1 are readily distinguishable from what is commonly referred to as "interim certification" under section 6(2) of the Act. In the latter case the Board must be satisfied as to the applicant's ultimate success in its certification application. Apart from determining what the Board "considers appropriate", there are no equivalent legislative precon­ditions to the exercise of the Board's discretionary power to make interim orders under section 92.1. An interim order represents, in part, an evaluation by the Board, in the face of a conflict and in response to a request by one of the parties, as to the preferred labour relations circum­stances to be preserved or created during the course of the litigation of the main application. This evaluation must be capable of expeditious application and be responsive to developments which may be dramatic. To the extent that the amount of time between events giving rise to requests for interim orders and the Board's disposition of those requests can be minimized so too will any undesirable disruptive effects of Board intervention be lessened. The Board's power to grant interim orders will serve to minimize the negative effects or potential serious harm that may result from the passage of time associated with the litigation of the main application.

10. In this context it is hardly surprising that there are significant differences in the conduct of these types of proceedings. The most obvious difference is that oral hearings need not be held in these cases. Further, given the premium attached to expedition, even in cases where a hearing is held the Board is unlikely to entertain viva voce evidence. And while the parties are required to file declarations detailing all of the facts relied upon and signed by persons with first-hand knowledge, the rules contemplate no opportunity for cross-examination of the declarants. These procedures are consistent with the need for expedition and the fact that no final determinations are made in these types of proceedings. In this context the Board is obviously unlikely to arrive at any firm conclusions regarding the merits of the main application - at best it can only draw some conclusion about the apparent nature of that application. Thus, it appears to us that the most appropriate fashion for the Board to evaluate the apparent merits of the main application should resemble that in which the Board makes determinations under (both the former section 71(1) and the current) Rule 24 of the Board's Rules of Procedure which reads, in part:

Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing...

In other words, unless the Board is satisfied that, assuming the truth of all the facts relied upon by the applicant, an arguable case for the orders or remedies sought in the main application is made out, the applicant's request for an interim order will not be granted. To the extent that an applicant's apparent case in the main application may be capable of meeting a more rigorous standard, that may be a factor which the Board will possibly consider in determining whether or not to grant the interim order sought.

In Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. Mar. 219, the Board indicated that it would also look to the effect of the bargaining relationship between the parties, and that a Board order staying the effect of a collective agreement provision would in the circum­stances of that case, be a serious intrusion into that relationship. As a result, the application was dismissed.

8. In Price Club Canada Inc., [1993] OLRB Rep. July 635 the Board analyzed the case in these terms:

9. Thus, assuming that all of the facts relied upon by the applicant are true, the Board is satis­fied that an arguable case has been made out for a number of the orders sought in the proceed­ings to which this application relates, including Mr. Darnell's reinstatement. We turn then to the more difficult matter of weighing the labour relations harm which could result from granting or not granting the interim reinstatement of Mr. Darnell sought by the application in the instant case.

10. The Board then added these comments in Blue Line Taxi Company Limited, [1993] OLRB Rep. Aug. 793:

11. The parties are correct when they state that the Board, in determining whether any interim orders are appropriate, has articulated that it will balance what harm may occur if an interim order is not granted, against what harm may occur if it is granted and will consider whether the applicant has made out an arguable case for the remedy requested in the main application. These two factors are not the only factors that the Board may consider; they are merely some of the ingredients in the test for interim relief (see Morrison's Meat Packers Ltd., [1993] OLRB Rep. March 226, where the Board considered a lack of expedition in the filing of an application for interim relief).

12. We agree with the Board's reasoning in Loeb Highland, supra, that it is appropriate to apply a test which balances the harm which may occur if an order is granted against the harm which may occur if the order is not granted. The Board in assessing harm looks primarily at the harm which may be suffered by the parties to the action. Counsel for the applicants states that their position will be greatly prejudiced due to the irretractable nature of many of the transactions associated with the assignment of the spots. Examples of the transactions referred to include the making of financial arrangements, the purchasing and licensing of a new vehicle and obtaining provincial grants in respect to the vehicle purchases. We have difficulty with counsel's assertion. First of all, it was not indicated to us why the applicants feel that these transactions are irretract­able and we do not agree that they are. As a result of success in the lottery held by the union, three individuals purchased the right to utilize a taxi stand spot. It was not disputed that this right can be bought and sold. There does not appear to be anything irretractable about the transactions referred to, which are associated with the acquisition of a spot. Secondly, it appears to us that it is not the applicants who could suffer harm if the Board finds a violation of the Act in the main application and orders the union to reverse the allocation of the spaces, but the indi­viduals who currently believe that they own the spots and are proceeding to acquire and license the necessary vehicle on that assumption. Therefore,the applicants are relying solely on harm which could befall individuals who are not a party to this action as justification for the ordering of interim relief. They have not suggested that an interim order is necessary in this case to pre­vent harm to themselves. In an application for interim relief the Board assesses the potential or actual harm that will be suffered, primarily by the parties to the application. While harm to third parties or the general public may be relevant, it will not by itself generally be sufficient to war­rant the granting of an interim order. Finally, we would observe that the potential harm to the individuals who purchased the spots in good faith will be largely financial in nature and can be the subject of a remedy in the main proceeding if appropriate. The Board will not generally order interim relief to avoid or limit harm which is purely financial in nature (see Morrison's Meat Packers Ltd., supra, and Price Club Canada Inc., Board File No. 1467-92-U, dated November 5, 1992, as yet unreported). If the potential harm is primarily economic loss, this harm can be the subject of a monetary award in the main action.

13. Summarizing its approach in East Side Mario's, [1993] OLRB Rep. Aug. 744, the Board said as follows:

14. The Board was referred to a number of its recent decisions dealing with the power to grant interim orders under section 92.1 of the Act (see Loeb Highland, cited above (and the concur­ring opinion of Board Member Ronson reported at [1993] OLRB Rep. Apr. 354); Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242; and Morrison Meat Packers Limited, [1993] OLRB Rep. Apr. 358). These cases make it clear that the Board will perform two key assessments in determining whether or not to grant an interim order. First, the Board will make an assessment of the apparent merits of an applicant's case in the main application. This assessment, however, of necessity must be made within certain limited parameters and will rarely, if ever, include any determination as to whether or not the Act has been violated (a determination which will be reserved for the panel dealing with and hearing all of the evidence in the relevant main application).

15. It is clear that this assessment of the apparent merits of the main application is made on the basis of the applicant's materials and assuming that all of the facts alleged by the applicant are both true and provable. There is no doubt in our mind that, on this basis, the applicant has established an arguable case for the remedies sought in the main application. Indeed, we are sat­isfied that we would arrive at the same conclusion even if we were to ignore the applicant's materials insofar as they allege actual knowledge by the employer of the grievors' union activeties prior to the discharges (allegations which are explicitly denied in the company's materials). It is difficult to imagine circumstances in which the discharge of key inside union organizers dur­ing the early stages of an organizing campaign would not give rise to an arguable violation of the Act. This is not to suggest that every such complaint, or, indeed, the instant one, will succeed on the merits. That, however, is not the determination to be made in the context of an applica­tion for an interim order. We are satisfied that the union's application makes out an arguable case for the remedies sought in the main application.

16. The second assessment the Board performs involves a relative evaluation of the harm which may result from granting or not granting the interim order being sought.

17. The reasons for the Board's decision in Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019, were issued after the hearing in this matter, and as a result, we have not relied upon them in coming to our decision. However, we find the following excerpts a convenient way of expressing our views with respect to this case:

18. Nevertheless, we think it is fair to conclude that section 92.1 was intended to be an addition to the Board's remedial arsenal. It was intended to supplement the Board's existing labour rela­tions "remedies" available at the end of a case, so that what the Board must now do, is square its new powers with the established legal framework. Moreover, interim relief is clearly deriva­tive. It does not stand alone. It draws its essence, and must be tailored, to the particular mix of facts in each case, as well as the public and private interests at play in the main application. The main application sets the framework for consideration of the particular facts under review, and the particular interim "order" or "relief' requested.

19. Since that is the starting point for any interpretation of section 92.1, it may be useful for this case to briefly consider the way in which the Board approaches the litigation and resolution unfair labour practice complaints filed in connection with an organizing campaign.

20. In the first place, we might observe that the Board is not a court; and there is no reason to expect that either its adjudicative or remedial approach should mirror that of a court. Civil prac­tice may sometimes provide a useful analogy, but when the Act so clearly involves policy consid­erations, so systematically modifies common-law premises, and so clearly excludes judicial involvement (see section 110), it would be curious for the Board to make common-law criteria a governing principle of interpretation. This is not to say that the Board's approach to dispute res­olution will never resemble that of the courts; however, the criteria applied, and the result reached, are more likely to be based upon the scheme and purpose of the Act, the Board's own experience, and the norms and needs of the industrial relations community. (See generally: Alex Tomko v. Labour Relations Board of Nova Scotia, et al (1975) 76 CLLC ¶14005 (per Laskin, C.J.C.).)

21. In our opinion, these "remedial" considerations traditionally reviewed at the end of the case should inform the way in which the Board approaches interim orders or "relief'. In both instances, the Board is required to blend and balance statutory imperatives, policy consider­ations, and the realities of contemporary labour relations.

22. Where interim relief is sought in connection with an unfair labour practice complaint, one must keep in mind the legal rights and administrative processes that the law is intended to pro­tect; or to put the matter another way, the rights and processes which the impugned conduct may (and may be intended to) undermine. In the context of a union organizing campaign, those rights include not only an individual right to choose without fear of reprisal, but also a correla­tive group right of self-organization, so that employees may establish a collective bargaining relationship in the manner contemplated by the statute. A remedial philosophy that focuses exclusively on repairing the harm to individual victims, and neglects the general assault on free­dom of association, will inevitably fail to promote the statutory objective.

23. If the employer's purpose were only to punish the individual worker for supporting the union, the law might well redress the harm by restoring him/her to the job, and making up the income that s/he has lost. But if the real objective is to break the momentum of the organizing campaign, to eliminate an influential employee advocate, or to send a graphic message to other employees, the set-back to the employees' quest for a collective voice in the workplace may not be so readily remedied.

24. It is not easy to calculate the value of the employees' "lost opportunity" to make a fair and free choice about trade union representation. It is not easy to repair an administrative process that depends for its efficacy on the free exercise of employee wishes. It is not easy to assess the value of lost leadership in the formative stages of an organization - although it is perhaps self-ev­ident that a voluntary organization, be it a club, church or trade union, depends upon the zeal and commitment of its core members. However intangible these qualities of energy or commit­ment may be, a voluntary organization like a trade union cannot form or function without them - particularly in its early stages when workers may be unfamiliar with their rights, when the stat­utory freeze or "just cause protection" may not yet have been triggered (see sections 81 and 81.2 of the Act) and employers may be more inclined to resist unionization, legally or illegally. For it is a sad fact of the industrial relations scene that almost fifty years after the employees' right to collective bargaining was entrenched in law, some employers continue to resist the exer­cise of those rights, or penalize employees who dare to do so. That is why section 111 of the Act preserves the anonymity of union supporters, lest their identification expose them to employer reprisals. If the Legislature had been confident that employees had nothing to fear, or Board remedies were a complete answer to illegality, it would not have shrouded the organizing pro­cess with such secrecy (incidentally reversing, by statute, the decision of the Supreme Court of Canada in Globe Printing Co. 1953 CanLII 10 (SCC), [1953] 3 DLR 561).

25. A remedial approach that does not take into account these labour relations realities will nec­essarily be deficient, and to that extent ineffective, as either redress or deterrent.

26. Where the Board concludes that a breach of the Act has occurred, it is required to construct a remedy that is sensitive to these concerns and, insofar as possible, rectifies the labour relations status quo disrupted by the illegal act. Where the Board is called upon to grant interim relief in a "pending or intended proceeding", it must consider whether an affirmative order is necessary either to neutralize the potential impact of an alleged unfair labour practice, or to enhance the Board's ability to address the labour relations situation, whether or not an unfair labour practice has occurred.

27. It must be recognized that early intervention, stressing immediacy rather than severity, can have a powerful preventive effect and reduce the necessity for later more intrusive action. Whatever balance may commend itself in particular cases, self ordering is preferable to Board intervention, and an early, moderate response may encourage accommodation and may be pref­erable to a later, more intrusive one. It is in no one's interest to encourage layers of litigation. If timely interim relief offsets the potential advantage of illegal action, discourages such action, promotes settlement or reduces the likelihood of further litigation, such results are all com­pletely consistent with the statutory objective.

28. Ii is essential that Board orders - interim or final - be sensitive to the realities of the work­place; and one such reality is the employee's ignorance of the law. One cannot realistically expect rank and file employees to be familiar with their rights under the Labour Relations Act. But one can be sensitive to their fears, and responsive to the concern that the law may favour those with economic power or the ability to act unilaterally. Accordingly, quite apart from the relief available to aggrieved individuals, there may be an independent value in an order that reassures other workers that the law stands above the fray, and proclaims that the legal result will rest on statutory principles, not the personality or relative power of the participants. In our system of industrial relations there is ample scope for the exercise of economic power, but it is not, and cannot be, the basis for resolving statutory rights.

29. As the Board noted in Radio Shack, and we here repeat: a remedial order (be it interim or final) can, and often should, include an informational component - not least because the dis­charge of union supporters in the midst of an organizing campaign may have an adverse impact regardless of the propriety of such discharge. An employer's actions may inhibit the exercise of employee rights, whether or not it intends to do so; and may undermine the mechanism for test­ing employee wishes, whether or not there is ultimately a finding of illegality. Again, timely intervention, without finding of fault, may be the most appropriate course in such circum­stances, in order to promote the statutory policy, and protect the established administrative pro­cesses.

30. On a motion for interim relief, it is neither necessary nor desirable for the Board to make any determination of the merits of the underlying application (here an unfair labour practice complaint with a certification application in the wings). The Act and Rules both contemplate a summary process, based upon written material, where there may not even be a formal hearing (see section 104(14) and Rules 92 and 93). Within that framework, it is neither fair nor feasible to try to resolve disputed facts or explore the nuances of the law. That is best left to the hearing "on the merits", where the Board will have to hear directly from witnesses whose credibility could be an issue, and the parties will have more flexibility to develop their case in their own way.

31. Of course, under section 92.1, the Board will have to take into account the kind of case it has before it, what we have described as the "contours" of the case (including disputed facts), and the likely disposition should one party or the other be successful. But, on an application for interim relief the focus is on preserving rights pending the hearing on the merits, rather than a meticulous assessment of the relative strength of each party's case. Accordingly, a party may be entitled to an interim order or interim relief if the material filed establishes an "arguable" or prima facie case for the ultimate relief requested.

32. In the instant case, there is not much doubt that the applicant meets that threshold. Where the union's two key organizers are unexpectedly discharged at the height of the organizing cam­paign, there is a prima facie case of a breach of the Act, and there is reasonable cause for employees to believe that an unfair labour practice has occurred; moreover, in cases of this kind, where the employer bears the legal onus of establishing that it has not contravened the Act, it is hardly surprising that the union requests that the "pre-discharge" status quo be main­tained until the employer meets the statutory onus cast upon it. If the employer is obliged to establish that its removal of the employees from the workplace was not unlawful, there is noth­ing counter-intuitive about keeping them there until it does so. However, quite apart from the question of legal onus or the strength of the union's case, we are satisfied from the material before the Board that there really are reasonable grounds for the employees to believe that Cake and Sweetman were discharged because of their trade union activities (whether they were or not); and that that situation is likely to persist unless the Board intervenes, and until the employer establishes that these terminations were not in fact tainted by any anti-union motiva­tion.

33. In other words, whether or not the employer is ultimately successful on the main applica­tion, the sequence of events under review is likely to inhibit the free exercise of employee rights, unless there is some positive and tangible assurance that those statutory rights will be protected. If an outsider regards these discharges as at least suspicious, an employee in the workplace would reasonably fear the consequences of his/her involvement with the union. And that, in fact, was Sweetman's experience when he approached individuals who had previously expressed some interest in collective bargaining. Thus, whatever the motive for these discharges may actu­ally have been, there is likely to be an adverse impact in the workplace until the aggrieved employees' rights are resolved through impartial adjudication.

34. The question, though, is whether some interim direction is appropriate to address these con­cerns, and, if so, what form it should take.

35. In answering that question, we do not think it is very helpful to consider what a Court might do on an application for an interim injunction. For the reasons already outlined, we see no rea­son to import common/civil law considerations into the interpretation or administration of the Labour Relations Act (i.e., the Rules of Equity, undertakings as to damages, etc. - again, see the comments of Laskin, C.J.C. in Tomko, supra). On the other hand, we do think it is neces­sary to consider what '~harm" may occur if an interim order is not granted, and what "harm" may occur if it is granted; moreover, that assessment should be made from a labour relations perspective, having regard to the scheme and purpose of the Act, of which section 92.1 is a part. In our view, the interests to be considered include those of the employer, the union, the aggrieved employees, and other employees in the workplace who may be effected by the con-duct under review. However, we also think we should consider what may be described as a "general" or "public" interest in ensuring that the statutory objective is achieved, insofar as possible, in accordance with the administrative process prescribed, without protracted litigation. To the extent that the early intervention can have a moderating or prophylactic effect, that course is to be considered.

(emphasis original)

12. With this jurisprudence as a backdrop, we turn to the facts before us. The applicant in this matter asserts that Messrs. Bijelic and Kelly were discharged as a result of their union organiz­ing activities. There is little doubt that if this is true, it represents an arguable violation of the Labour Relations Act. As a result, that ingredient of the Board's test has been satisfied.

13. In considering the relative harm to the parties, the applicant maintains that the dis­charge of the two employees creates an environment of intimidation which may adversely affect the outcome of the applicant's certification efforts. The responding company asserts that Messrs. Bijelic and Kelly were discharged because of various incidents of verbal abuse, insubordination and belligerence, that Mr. Kelly has a firearm collection in his condominium unit, and that the continued presence of these employees will jeopardize the health and well being of other employ­ees, some of whom will resign if the two men are reinstated even temporarily. In addition, the company asserts that interim reinstatement will jeopardize its contractual relations with the condo­minium corporations at the site.

14. In Loeb Highland, supra, the Board made these comments with respect to the chilling effect of the discharge of employees involved in union activities during an organizing campaign:

15. Moving on to the specific balance of harm in this case, the Board has frequently recorded the chilling effects of a discharge of a union organizer on an organizing campaign. For example, in Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board said as follows:

However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with back-pay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist of those occasions where he will not.

37. Moreover, the Board has found on quite a number of occasions that the discharge of a union organizer during a union campaign may lead to a situation where the true wishes of employees can no longer be ascertained, despite the Board's ability to reinstate the organizer. In other words, the intimidatory effect is so powerful that employees can no longer express their real views on unionization, with the result that certification is granted without a test of employee wishes. For example, in DI-AL Construction Limited, [1983] OLRB Rep. Mar. 356, the Board said in this regard:

A discharge is one of the most flagrant means by which an employer can hope to dis­suade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made clear to employees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employ­ees are not likely to be ascertained in a representation vote.

38. Similarly, in Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443, the Board was faced with a situation where a company had laid off a number of employees during an organizing cam­paign in violation of the Labour Relations Act. In this case, however, the company recalled the employees shortly thereafter and issued a letter indicating that employees were free to chose union representation or not. The Board found that the damage had already been done, despite the recall and letter, and that employees were no longer able to express their true wishes with respect to union representation. The Board came to a similar conclusion in Elbertsen Industries Limited, [19841 OLRB Rep. Nov. 1564, despite the reinstatement of an employee laid off in vio­lation of the Act, although there were other factors which resulted in that finding as well.

39. Why is the impact so severe when a union organizer is discharged? The Board has previously commented on the peculiar vulnerability of employees who depend on the employer for their livelihood. In Pigott Motors (1961) Ltd. (1962), 63 CLLC ¶16,264, the Board said:

There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natu­ral desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

In Roytec Vinyl Co., [1990] OLRB Rep. June 727, the Board commented on this problem in another context:

In the Board's experience, employees are often concerned that they may be subject to such reprisals by their employer for union activity. The Board's jurisprudence is replete with examples of employees who were discharged or penalized in some way, at least in part, because of their support for unionization. For an employee who fears that joining a union will lead to a discharge or other penalty, the result he or she con­templates can be a loss of economic security, the loss of the social milieu of the work­place, a concomitant loss of self-esteem, identity or social standing, the uncertainty of finding another job and the possibility of a slide onto social benefits. Of course, in most cases such a bleak picture will not come to pass; nevertheless, the mere possibil­ity of any of these consequences may exert a powerful influence on an employee con­templating collective bargaining, a regime frequently not welcomed by employers.

For similar reasons, a discharge has been referred to in arbitral jurisprudence as the "capital punishment" of labour relations.

40. The combination of the economic vulnerability of employees and their assumption that an employer does not welcome a union means that a union organizing drive is a relatively fragile enterprise in which momentum is often critical. Where a campaign is disrupted by an unlawful discharge, the Board's jurisprudence under section 9.2 of the Act reflects the fact that such momentum cannot easily be restored by the reinstatement of an employee at some point farther down the road.

Again, we find the following excerpts from Tate Andale, supra, a convenient way of expressing our views in this regard:

56. What is the "harm" potentially suffered by the union, the employees, and the process, if interim relief is not granted - that is, if the Board does not reinstate the grievors, or otherwise take steps to restore the labour relations status quo prevailing at the time of their discharge? Least significant, we think, is the potential wage loss to the aggrieved employees, which is fully recoverable (if they are successful) within a few weeks, and, in Sweetman's case, is moderated by the fact that he has already received some severance pay. More important, in our view, is the likely impact on other employees, who may have had an appetite for collective bargaining, but have just seen the union's two principal proponents summarily removed from the workplace in the midst of the organizing campaign. This is not a neutral event, and it would be totally unreal­istic to expect employees to regard it that way.

57. It is one thing for lawyers to be confident in the efficacy of the legal process to vindicate stat­utory rights. It is quite another to expect employees to have such confidence, or to still the nag­ging suspicion that relative economic power might influence the result. Nor is this idle specula­tion, for even among sophisticated labour law practitioners there is an ongoing debate about the utility of Board remedies, and since the early 1970's the Statute has been amended on several occasions to broaden the remedial options - suggesting, we think, some Legislative doubts about the effectiveness of what was there before. And unless the Board does so, there may be no authoritative voice to reassure employees of their statutory right to join a union, or not, free from improper interference.

58. For most employees, the law is an unfamiliar, even alien abstraction. The reality is the employer's economic power and the "right" (or at least opportunity) to move unilaterally to deprive them of their livelihood. Accordingly, the most effective way to counteract the "mes­sage of a summary discharge is an equally speedy reinstatement - accompanied by formal noti­fication to employees of the terms and limits of such temporary reinstatement, as well as a sum­mary of their statutory rights, in order (to use the words of the panel in Radio shack) to "take account of the economics and psychology permeating the situation at issue". Indeed, in the con­text of an organizing campaign, where the certification application has not yet been disposed of, that Board response is particularly attractive, unless there are compelling employer interests that point in some other direction. During this sensitive period, labour relations realities com­mend this prophylactic approach.

(emphasis original)

15. In the case before us, we are satisfied that not reinstating Messrs. Bijelic and Kelly may well have a serious chilling effect on the support of employees for the union. As a result, we turn to the harm which may flow from granting the order requested.

16. It is fair to say that the material filed by the responding company is rather overstated in this regard. Some of the incidents cited in support of the position that the presence of the resident superintendents in the workplace creates an "atmosphere of terror" do not provide that support. We note in particular that some of those incidents occurred up to a year ago, without, it appears, much concern being exhibited by the company at the time. It is difficult to imagine that interim reinstatement for what appears will be several weeks will make a significant difference in these cir­cumstances.

17. An important factor in our decision is that Mr. Bijelic and Mr. Kelly are still residing in the workplace. Residence is one of the employment benefits of a resident superintendent, and although the company has commenced proceedings to evict the two men, a hearing in this regard has not been scheduled until October 18th. In other words, even if we do not reinstate them to employment on an interim basis, they will still be present in the workplace. Thus the harm the company projects from their presence alone is not particularly influential with respect to the issue of reinstatement. Indeed, it appears to us that reinstatement may even minimize possible harm, by giving the company more control over two individuals who will be present in the workplace in any event.

18. Having regard to the Board's jurisprudence and the submissions of the parties, we found that the harm which might flow from granting the interim relief requested did not outweigh that which might stem from refusing the order. In light of the specific facts before us, however, we moved up the hearing date of the section 91 complaint so that based on the parties' estimates of the number of hearing days required, the hearing would be completed by the time the eviction pro­ceedings commence.