The Ontario Secondary School Teachers' Federation District 15 v. The Board of Education for the City of Toronto, 1995 CanLII 9912

[1995] OLRB Rep. May 579

2496-94-U The Ontario Secondary School Teachers' Federation District 15, Applicant v. The Board of Education for the City of Toronto, Responding Party v. Toronto Teachers' Federation, Intervenor #1 v. The Ontario Public Service Employees' Union and The Ontario Public Service Employees' Union, Local 595, Intervenor #2

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members Orval R. McGuire and C. McDonald.

APPEARANCES: Eric del Junco, Kevin Thompson and Brian Wright for the applicant and interve-nor #3; Carla Zabek, Bruce Stewart, Grant Bowers, Linda Groves and Janet Ray for the respond-ing party; Kathleen Martin, Andrea Bowker, Frances Gladstone and Jennifer Birrell for intervenor #1; M. I. Rotman and Barry Weisleder for intervenor #2 v. The Ontario Secondary School Teach-ers' Federation.

DECISION OF THE BOARD; May 10, 1995

I

1. This is an application under section 91 of the Labour Relations Act which reads, in part, as follows:

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

Section 91 gives the Board the discretion to decide whether or not to engage in the litigation exer-cise (See: Sheller-Globe of Canada Ltd. 83 CLLC ¶314,052 (Div. Ct.)).

2. In the instant case, the applicant ("OSSTF") contends that the Toronto Board of Edu-cation ("TBE") has contravened section 73.1 of the Labour Relations Act. The intervening unions support OSSTF's contention. Section 73.1 reads this way:

73.1- (1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them; ("employeur") "per-son" includes,

(a) a person who exercises managerial functions or is employed in a confiden-tial capacity in matters relating to labour relations, and

(b) an independent contractor; ("personne")

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinar-ily perform their work. ("lieu d'exploitation a l'egard duquel la greve ou Ie lock-out a lieu")

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bar-gain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.

(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lock-out is taking place:

1. An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1 (3).

5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.

(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargain-ing unit that is on strike or is locked out without the agreement of the employee.

(8) No employer shall,

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condi-tion of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.

(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.

3. For completeness, we should also record section 2(1)(f) of the Act which provides:

2.-(1) This Act does not apply,

(f) to a teacher as defined in the School Boards and Teachers Collective Negoti-ations Act, except as provided in that Act;

4. The general background to this case is not really controversial. However, the parties do not agree on the relevant facts, and it appears therefore, that if the Board were to entertain this application it would be necessary to receive evidence over several days in order to establish the context to which section 73.1 might apply. We say "might apply", because apart altogether from factual considerations, there is a dispute between the parties about whether section 73.1 could apply either at the time of the events in question, or at all. And, of course, there is a dispute about the extent of its application.

5. In view of the dimensions of the dispute, it may be useful to give a brief overview of what the case is about, and the issues that it raises. We will then turn to the TBE's assertion that the issues are "moot", and should not be litigated at this time.

II

6. TBE runs the Elementary and Secondary School System in the City of Toronto. It oper-

ates a network of schools and mounts a variety of educational programmes. TBE employs thou-sands of employees.

7. TBE has collective bargaining relationships with a number of employee organizations, including the applicant and the intervenors. Indeed, we were told that TBE has more than twenty separate collective bargaining relationships with various unions. Some of these relationships are regulated by the Labour Relations Act. Others are governed by the School Boards and Teachers Collective Negotiations Act ("Bill 100").

8. Teachers employed in the regular day school (elementary and secondary) are employed under contracts of employment regulated by the Education Act. Their trade union and collective bargaining relationships are governed by Bill 100. These teachers are not covered by the Labour Relations Act (see section 2(1)(f) set out above).

9. For convenience, we will sometimes refer to these individuals as "Bill 100 teachers".

10. When Bill 100 teachers are absent for one reason or another, "occasional teachers" (sometimes called "supply teachers") can be called in to take their place in the classroom. An occasional teacher may work for a day of two, or for a much longer period, depending upon the needs of the particular school - and, of course, whether the absence of the Bill 100 teacher can be "covered" by the school without calling in an occasional teacher at all. TBE maintains a list of occasionals who are engaged from time to time as the need arises.

11. Occasionals are fully qualified teachers who are entitled to teach on a fill-in basis, in accordance with the Education Act. But occasional teachers are not covered by Bill 100. They are employees under the Labour Relations Act, whose collective bargaining relations are regulated by the Labour Relations Act. That is also the case for "teachers' assistants", and perhaps other TBE employees who work in association with Bill 100 teachers to deliver educational programmes.

12. TBE's occasional teachers are represented in collective bargaining by OPSEU, and in the fall of 1994, TBE and OPSEU were engaged in negotiations for a new collective agreement. Bargaining drifted towards an impasse, and OPSEU set a strike deadline of Friday, October 14, 1994. However, no strike occurred, because a settlement was reached prior to the strike deadline.

13. There is nothing unusual about that. Most collective agreements are negotiated without recourse to a strike or walkout. Strikes are a dramatic feature of our collective bargaining system, but, in practice, something in the order of 90 per cent of negotiations produce a collective agree-ment without a strike - as happened here. Nevertheless, it was the prospect of a strike, and the preparations for a possible strike, that gave rise to the present legal controversy over the potential application of section 73.1.

14. Under the Education Act, TBE has an obligation to provide instruction during each school year for all of the pupils who have a right to attend schools within TBE's jurisdiction. Accordingly, when it appeared that there might be a strike of occasional teachers, TBE began to ponder other ways to cope with the absence of Bill 100 teachers, for whom the occasionals would normally fill in.

15. As we have already noted, occasionals are engaged to replace absent Bill 100 teachers. Job opportunities for occasionals only arise when a Bill 100 teacher is away, and his/her classes cannot be "covered" within the school. However, when it appeared that this pool of occasional replacements would not be available because of a strike, TBE began to look for other options.

16. Some of these plans involved reorganization, to reduce the situations in which occasion-als might otherwise have been used (for example, limiting the discretionary leaves of absence that a Bill 100 teacher might otherwise have been able to take). Other contingency plans involved using Bill 100 teachers to fill in for any absent Bill 100 teachers, instead of occasionals who would no longer be available once a strike was called. For present purposes, it is unnecessary to review these contingency plans in detail. It suffices to note that some of the options considered were:

• the cancellation of field trips or similar programmes;

• the cancellation or postponement of the release of Bill 100 teachers scheduled to attend workshops, professional development or conferences during the regular school day;

• retimetabling of teachers who might not have direct classroom responsibilities;

• reconsideration of discretionary leaves;

• restructuring of classes or the dispersal of students to existing classes staffed by Bill 100 teachers;

• the assignment of independent study projects;

• the use of principals, vice-principals, coordinators, and consultants; and so on.

School principals were advised to consider all of the options that they would normally employ

when occasionals were unavailable from the call-in list.

III

17. The issue posed by this case is the extent to which TBE would have been able to use Bill 100 teachers to "perform the work of an employee in a bargaining unit that is on strike" - to use the words of section 73.1 of the Labour Relations Act (assuming that it applies). A related issue is the extent to which Bill 100 teachers may be required to perform such work, or reorganize their ongoing duties so that others could do so. Implicit in these issues is some definition of the "work" of occasionals, and the extent to which "their work" may overlap with the "work" that Bill 100 teachers (or some of them) customarily perform, or may be expected to perform.

18. Section 73.1 contains a complex formula prescribing who can or cannot do the work of employees who are on a lawful strike. That formula is framed with reference to a body of work that "belongs" to the members of the bargaining unit on strike. The section then identifies pools of replacement workers, who are either prohibited from doing such work altogether, or can only be used in designated circumstances.

19. Section 73.1 envisages that the elements of the statutory scheme can be precisely identi-fied. And in many cases, that may be relatively easy. However, it is not so easy where, as here, the work of the strikers only arises because of the way in which another bargaining unit is organized, or where the strikers' work overlaps with that of another bargaining unit, or where the strikers' work supplements that of another bargaining unit in varying degrees as needs arise. In that envi-ronment, it is not so easy to decide "whose work" it is, or what work belongs to a particular group, or in what proportion.

IV

20. TBE takes the position that, as a result of section 2(1)(f) of the Act, the strike replace-ment restrictions can have no application at all to persons to whom the Act specifically does not apply. Nor are Bill 100 teachers "employees" under the Act who can claim exemption in, for example, section 73.1(7). Nor, TBE argues, could section 73.1(8) be applicable, because no strike or lockout has ever occurred. (See the emphasized portions of the section reproduced above). Indeed, in TBE's submission, the entire controversy is academic because a collective agreement was settled without a strike.

21. TBE further submits that even if section 73.1 applies to Bill 100 teachers in a general sense, its concrete application could not be determined without a careful analysis of work patterns and employee usage in TBE's schools. The existence of work for the occasional bargaining unit depends upon the utilization of Bill 100 teachers and the extent to which Bill 100 teachers already fill in for one another (through supply pools for example) when coverage is needed. Thus, a Bill 100 teacher's right to refuse to perform "struck work" may depend upon whether s/he has done or would be expected to do that work if there was no strike. The answer to that question could involve both systemic considerations and, in particular cases, what the individual has done before or might be expected to do.

22. These questions are quite debatable - as is amply illustrated by the communications between the parties prior to the October 14, 1994 strike deadline.

23. The pleadings include references to a number of memos, letters, communications and conversations concerning the way in which the TBE proposed to respond to a strike of the occa-sionals, and the way in which Bill 100 teachers might be used if a strike occurred. The parties dis-agree on the details, substance and intent of these communications. It is pretty clear, though, that there was a controversy about the way in which Bill 100 teachers could be used and questions about: how section 73.1 might apply to them; whether they could be asked to do "struck work" (whatever that means in this context); whether they had a right to refuse, and so on.

24. In the course of those discussions there was at least the spectre of a disciplinary repri-mand, if Bill 100 teachers refused to do work that was assigned to them. It is that spectre or "threat" of a reprimand, which OSSTF claims would be removed by litigating this case, so that the teachers in question will know where they stand should a similar situation arise in the future. OSSTF relies upon section 73.1 (8) of the Act which, it notes, applies to "persons" not simply "employees".

25. TBE denies that anyone was improperly threatened with discipline, and maintains that, in any event, no one was actually disciplined. These questions became entirely academic when the occasionals' collective agreements were settled without a strike. It was and remains entirely unnec-essary to ponder the legal aspects of what might have happened and the employer is not anxious to do so (at considerable private and public expense) when the legal answers will probably have no operational significance for the collective bargaining relationship in which they arise. TBE reiter-ates that there has been, and will be, no "discipline" in respect of what happened in the fall of 1994, and undertakes to both the unions and this Board that:

"if any individual feels or perceives that s/he was directly or indirectly disciplined in anyway whatsoever, we will undertake to clarify any such concern by making notations in their personal files that there was no discipline as a result of any refusal to perform a work assignment and that notation will also include reference to the fact that any refusal will not be used against the indi-vidual in any future employment context."

26. The unions submit that the "threat" of discipline in October 1994 is a sufficient founda-tion to proceed with this case even if no discipline was actually imposed. The unions urge the Board to do so, in order to give guidance to the labour relations community on what are admit-tedly novel and difficult issues. Counsel for the unions submit that these questions are likely to arise in the future, given the volume of school board collective bargaining across the Province, and employees should not have to put themselves at risk of discipline to test their legal rights or obliga-tions under the Labour Relations Act. This particular bargaining dispute may have been settled without a strike, but the relationship between Bill 100 and the Labour Relations Act remains a live controversy for trade unions like OSSTF, whose members work together and are governed by both pieces of legislation. Counsel for OSSTF points out that OSSTF has 37,000 "Bill 100 members" and 12,000 members whose collective bargaining rights are governed by the Labour Relations Act. Counsel for OPSEU notes that his client represents other occasional teachers at other boards of education, where ongoing collective bargaining would benefit from a clarification of the legal rules.

27. TBE acknowledges that the situation in October 1994 posed some interesting legal questions, as well as some difficult determinations of fact and characterization. However, in TBE's submission any analysis of those matters now would be a totally academic exercise because there was no strike, and there is no reason to suppose that there will be one in the next round of bargain-ing - or even that the factual mosaic will be the same. TBE acknowledges that other Boards of Education and other unions (CUPE for example because it represents teachers' assistants) might be interested in the results of a "test case". But TBE has no appetite to engage in protracted litiga-tion simply because an elaboration of the law would be useful for the union parties in their dealings with other Boards of Education.

28. TBE urges this Board to exercise its discretion not to inquire into this particular com-plaint. TBE submits that if similar issues do arise in some future round of bargaining, they can be addressed at that time; moreover, it will cooperate to have any concerns addressed, in a timely way, in the context that then exists. But in TBE's submission, the instant case is "moot" - how-ever, intellectually interesting the exercise might be.

29. TBE urges the Board to follow the practice described by the courts in case such as: Borowsky v. Attorney General of Canada, 1989 CanLII 123 (SCC), 57 D.L.R. (4th) 231 (S.C.C.) or Lynne Hagen et al. v. Seligman and Latz of Polo Park Limited, Fairmall Leasehold Inc., Hudson's Bay Limited, and Simpsons Limited (a decision of the High Court Justice issued on April 29, 1991). In the for-mer case, the Court declined to pronounce on the issue of "foetal" rights because the particular case had been rendered moot by the elimination of the applicable provision of the Criminal Code -even though the Court acknowledged that the case raised a question of considerable public impor-tance, which could arise in future cases. Similarly, in Seligman and Latz, Henry J. refused to pro-nounce on the extent of Charter protection for picketing activity once the underlying strike was settled - even though it was acknowledged that deciding the case might provide guidance for future similar cases. Henry J. observed:

With the settlement of the strike there is no longer a "live controversy or concrete dispute" as the substratum of the application has disappeared; the issues have become academic and what it left is a hypothetical or abstract question. . . . In my opinion it is not sufficient to say as Mr. Cavalluzzo argues that there is an ongoing collective bargaining relationship between the appli-cants and their employers among the respondents; what is envisaged is an ongoing adversarial relationship arising from collateral consequences of the outcome that adjudication of the origi-nal his will help to resolve. In the case at the bar, all that I can envisage is the possibility of a future strike and consequent picketing which may never occur and is therefore both hypothetical and speculative . . . It may be attractive to suggest, as Mr. Cavalluzzo does, that by deciding this case the parties will have guidance for future similar cases. But that can be said about any deci-sion in hypothetical circumstances, as this case has now become . .

30. TBE urges the Board to take the same approach and refuse to entertain a claim that will have no operational significance to the named parties and their collective bargaining relationship.

V

31. When called upon to exercise its discretion under section 91 of the Act, we do not think that the Board is obliged to adopt the approach of the courts in civil matters. The Board deals with ongoing collective bargaining relationships and a provincial regulatory scheme. In particular cir-cumstances, it might well be appropriate to entertain litigation, in the nature of a reference, even though the result may be purely declaratory, and may have no immediate operational significance for the parties involved.

32. On the other hand, the recent amendments to the statute raise quite a number of inter-esting legal questions; and the Board must be exceedingly careful when asked to expend its limited hearing resources, where the concrete dispute has disappeared, and the issues have become aca-demic for the immediate parties. The mere fact that a case raising the same point may recur in the future, should not by itself be a reason for hearing a matter which is otherwise become moot. It is preferable to wait and determine the point in a genuine adversarial context, unless the circum-stances suggest that the dispute will have always disappeared before it is ultimately resolved. And that is particularly so when the shifting factual pattern may affect the outcome, so that a decision in one set of circumstances will not necessarily govern the result in another. There is no doubt for example, that if similar circumstances arise with another Board of Education, the matter may be dealt with by the Board on an expedited basis either under section 91, section 92.1, or otherwise. The union parties in this matter are not without remedy should such concrete situation arise.

33. The "mootness" problem posed by this case is not entirely novel. Where an allegedly unlawful strike has ended, the Board has often declined to review the situation, and in Ontario Hydro, [1994] OLRB Rep. June 765 the Board refused to consider an alleged violation of section 41.1 of the Act because no practical relief would be ordered. The Board observed: "although this is the first case concerning section 41.1 which the Board has considered, that in itself is not a suffi-cient reason to decide the matter". Finally, we might note that in Dayne's Health Care Limited, [1983] OLRB Rep. May 632, both parties urged the Board to declare whether certain facts would trigger a sale of a business and collateral relief under section 64 of the Act - a matter of consider-able interest to them so that they could plan their future relationships. However, the Board refused to give an advisory opinion:

34. We are not unsympathetic to the parties' concerns, but we have concluded that we should not express any opinion or make any determination about the application of section 63 [now 64] until the transactions said to constitute a transfer of a business have been completed. Any desire to provide guidance to the labour relations community in a difficult area of the law must be tem-pered by a recognition that preliminary opinions based on hypothetical facts could create as much mischief as they resolve, if not more. Not only would such opinions encourage a recision or restructuring of transactions to which section 63 might otherwise apply but, in addition, there could be litigation about the effect of the opinion itself and whether the transaction was actually consummated in the form upon which the Board's opinion was based. Since close cases will often turn on subtle shadings of fact, in our view, it would be unwise to render opinions on what will inevitably be less than complete information. In today's volatile business climate there is a real likelihood that various components of "the deal" will change (for example, to accommo-date financing or licencing requirements) between its initial conception and its completion, and we are by no means convinced that the injection of a preliminary Board opinion at one stage or another in this process would really facilitate the promotion of orderly collective bargaining or the interests which section 63 was designed to protect. Finally, we are constrained to note that section 63 is not the only provision of the Act which occasionally gives rise to interpretive diffi-culties. The same could be said of the duty to bargain in good faith, the so-called statutory freeze (see section 79), and certain of the unfair labour practice provisions. It is an unfortunate tact that, like other areas of the law, the law regulating employer-employee relations has become increasingly complex and in many cases there is room for argument about how the law should be interpreted or applied. However, we do not think that the answer to this complexity or to the business planning problems faced by the labour relations community lies in this Board giving preliminary opinions on hypothetical fact situations.

35. We have carefully reviewed the parties' submissions. Like the panel in Daynes Health Care Limited, we are not unsympathetic to the parties' plea that section 73.1 poses difficult ques-tions of interpretation or application. Indeed, in at least two cases the Board has identified with problems not unlike those posed by the situation here (see Famous Players Inc., [1993] OLRB Rep. Dec. 1270, where the "struck work" was routinely shared with a service contractor, and Canada Stamping & Dies Limited, [1994] OLRB Rep. Mar. 213, where there was an issue about the use of part-time occasionals. Nor are we unmindful of the difficulties that employers or unions may face when planning their affairs in light of the Bill 40 amendments. However, on balance, and in all the circumstances, we are not persuaded that the Board should exercise its discretion to inquire into or render an opinion in this particular case.

36. The application is therefore dismissed.