[1994] OLRB Rep. March 300
2933-93-R Canadian Union of Public Employees, Applicant v. The Corporation of the City of Scarborough, Responding Party, v. Ontario Nurses' Association, Intervenor
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. H. Wightman and K. S. Davies.
APPEARANCES: Brian Sheehan and Dana Ivanochko for the applicant; Harvey A. Beresford, Tom Gill and John Wallace for the responding party; Richard A. Blair, Sharon Faulds and Valerie MacDonald for the intervenor.
DECISION OF THE BOARD; March 1, 1994
This is an application for certification.
By decision dated December 7, 1993, the Board directed the holding of a pre-hearing vote and the sealing of the ballot box pending an inquiry into the intervenor's allegations that the application is untimely because of the effect of the Social Contract Act S.O. 1993 c.5.
The most recent collective agreement between the intervenor and the respondent expired on December 31, 1992. The application for certification was filed in a timely way, on November 22, 1993, in accordance with subsection 5(4) of the Labour Relations Act, which states:
5.- (4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 62, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.
On November 29, 1993 the intervenor notified the respondent of its intention to extend the expired collective agreement as permitted by section 35 of the Social Contract Act, which states in part:
-(1) A bargaining agent may, by written notice to the employer of employees to whom this Part applies, require that a collective agreement be extended to March 31, 1996 if the agreement was or is governed by an Act that permits the employees to strike.
(2) The notice may be given before or after the collective agreement expires.
(3) The giving of the notice extends an existing collective agreement or, in the case of a collective agreement that has expired revives and extends the expired agreement to March 31, 1996. (4) This section applies despite subsections 34(1) and (2)...
There is no suggestion that the notice was given in response to the application for certification.
- In accordance with sub-section 35(3) of the Social Contract Act, the effect of the notice was to revive and extend the expired collective agreement. Subsection 35(4) then gives that effect primacy over sub-sections 34(1) and (2), which state:
34.-(1) Nothing in this Part alters the termination date of a collective agreement.
(2) Nothing in this Part interferes with any right to carry on collective bargaining so long as any
collective agreement reached is not inconsistent with this Act.
Further, section 52 of the Social Contract Act states:
The provisions of this Act and the regulations prevail over the provisions of any other Act and the regulations thereunder but only to the extent necessary to carry out the intent and purposes of this Act.
The intervenor says that the combined effect of its notice to the employer and the foregoing provisions of the Social Contract Act was to extend the life of the collective agreement through what would otherwise have been the "open period" under sub-section 5(4) of the Labour Relations Act.
The intervenor relies on Re Service Employees International Union and Broadway Manor Nursing Home et. al. (1984) 1984 CanLII 2155 (ON CA), 48 O.R. (2d) 224, where the Court of Appeal found that the Inflation Restraint Act did not bar an application for certification because it extended only the terms and conditions of the collective agreement and not the collective agreement itself. In this case, the intervenor says, subsection 35(3) expressly supplies what was missing in Broadway Manor by reviving and extending the expired agreement and not merely its terms. Accordingly, the application is made untimely by subsection 5(4) of the Labour Relations Act.
The Board does not agree. There can be no dispute on the evidence that the application for certification was timely when filed. What the intervenor is asking the Board to do, then, is determine that sub-section 35(3) of the Social Contract Act has the effect of closing the open period retroactively, so as to invalidate an otherwise valid application. There is no basis for any such interpretation.
It is a fundamental canon of statutory interpretation that legislation is not to be given retroactive or retrospective effect unless that intention is clearly manifest in the language of the enactment. (See, Pizza Pizza Limited, [1993] OLRB Rep. Apr. 373). In our view, and apart from section 58(1) which deems the Act to have come into force on June 14, 1993, no such intention is apparent in the Social Contract Act. In situations in which the collective agreement has already expired, sub-section 35(3) does not attempt to reach back to provide for a deemed continuation of the collective agreement through what would otherwise have been an open period, but merely provides that "the giving of the notice... revives and extends the expired agreement to March 31, 1996". This language speaks to the present and future, not to the past. Had it been the legislative intention to interfere with vested rights in the way proposed by the intervenor, it could have expressed that intention clearly.
In light of the foregoing, a majority of the Board finds it unnecessary to rule on the argument advanced by the respondent that the intent and purposes of the Social Contract Act can always be carried out without interfering with employee representation rights set out in the Labour Relations Act (see section 52 of the Social Contract Act above).
The Board therefore directs that the ballots cast in the representation vote be counted.
The matter is referred to the Registrar.
CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN: March 1, 1994
I agree with the majority decision, but wish to add the following thoughts.
Section 52 of the Social Contract Act states that its provisions takes precedent over other statutes, "but only to the extent necessary to carry out the intent and purposes of this Act". The purposes of the Social Contract Act are expressly set out in section 1 of the statute and relate, generally, to expenditure reduction and control. They do not include, and can be carried out without, insulating trade unions or employers from the fundamental right of employees to express their views on trade union representation. Accordingly, I would have dismissed the intervenor's allegations for the further reason that the Social Contract Act does not purport to take precedent over employee representation rights set out in the Labour Relations Act.