[1995] OLRB Rep. October 1249

2865-92-U William Hill Jr., Applicant v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 938, Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: William Hill Sr., William Hill Jr. and C. J. Abbass for the applicant; N. L. Jesin and R. Bonolotti for the responding party.

DECISION OF THE BOARD; October 11, 1995

I

1. By decision dated January 25, 1995 [now reported at [1995] OLRB Rep. Jan. 21], the

Board allowed this section 91 application alleging a breach of section 69 of the Labour Relations

Act. The Board remained seized with respect to the issue of remedy as follows:

46. This brings me to the question of remedy. In his application, the applicant requested that "91-Sub 4 - Sub C" [sic]. Section 91(4)(c) provides that:

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

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

I take it from the applicant's reference to this provision that he was requesting that the Board either reinstate him to his employment with Cott or award damages. Since the applicant did not name Cott as a responding or interested party, it appears that he was interested in damages rather than a reinstatement. Further, although Local 938 identified Cott as an interested party and the Board gave Cott notice of these proceedings as a result, the company filed nothing and did not participate in the proceeding.

47. At the hearing, the applicant, through counsel, indicated for the first time that he was seek­ing the relief which is usually sought in section 69 proceedings, and commonly granted when the Board finds that a trade union has breached section 69; namely, that Local 938 be directed to take the grievance to arbitration.

48. In this case, it is not at all clear that the Board can or should direct that the grievance go to arbitration. Such an order would affect Cott, which was not named as a party, does not appear to have been given sufficient notice that it might be affected by the proceeding, and which did not participate in the proceeding. If such a remedy can and should be granted, it is not clear what directions, if any, should be given regarding a responsibility for its carriage, the associated costs, or how any potential liability should be apportioned in the circumstances, including the applicant's delay in proceeding with the matter.

49. Accordingly, I do not find it appropriate to award the applicant any relief at this time. Instead I would remit the question of remedy to the parties and Cott to resolve if they can. I will remain seized with respect to the issue of remedy for a period of six months.

50. The Registrar is directed to send a copy of this decision to Cott as well as to the parties. The Registrar is also directed to schedule a hearing to deal with the issue of remedy upon the written request of any of the applicant, Local 938 or Cott. If no party requests a hearing within six months from the date hereof, the Board will consider the issue of remedy to have been resolved and this proceeding will be finally terminated.

51. The parties were unable to resolve the issue of remedy and the applicant asked the Board to deal with it. The Board convened a hearing for that purpose on September 11, 1995.

52. At the hearing, the applicant and the responding trade union advised the Board that they had agreed that the matter should be referred to arbitration. They requested the usual Board order, including an order requiring the employer Cott Beverages Inc. ("Cott") to waive any appli­cable time limits, in that respect. The applicant and the trade union also agreed that Mr. Jesin's firm would have carriage of the applicant's grievance at arbitration. Although Cott was given notice of the September 11, 1995 hearing, no one attended at it on behalf of the company.

53. As I indicated in the Board's January 25, 1995 decision, I was concerned about whether the Board can or should direct that the applicant's grievance go to arbitration. Having further con­sidered the matter, however, I am now satisfied that the order can and should go as requested and agreed to by the applicant and trade union.

II

5. There has been a "duty of fair representation in the Labour Relations Act since 1971. Initially, the Board took a rather traditional litigation approach in such cases. That is, the Board treated them as disputes between the employee and trade union involved which did not concern the employer. First the Board assessed the trade union's conduct. Then, if the Board determined that the trade union had breached what is now section 69 of the Act, the Board awarded damages, based on the Board's own assessment of the employee's grievance (Rutherford's Dairy Limited, [1972] OLRB Rep. Mar. 240, Alfred Comp ton, [1972] OLRB Rep. Oct. 916).

6. Until 1973, an employer was not considered to be a proper party to a duty of fair repre­sentation case. But with its decision in Ford Motor Co. of Canada Ltd., [1973] OLRB Rep. Oct. 519 (sometimes referred to as the Gebbie and Longmoore case) the Board began to take a more labour relations oriented approach to fair representation cases, and determined that an employer could be made a party, primarily for remedial purposes (see also, Imperial Tobacco Products, [1974] OLRB Rep. July 418). As the Board continued to develop its labour relations approach to fair representation cases, it began to consider whether one appropriate remedy might be to send the grievance at the center of such a case to arbitration, and thereby put the parties in the position they would often have been in but for the trade union's breach of the Act.

7. It appears that the Board first directed that a grievance be referred to arbitration as a primary remedy in a duty of fair representation proceeding in Leonard Murphy, [1977] OLRB Rep. Mar. 146. Then, beginning with Massey-Ferguson Industries Limited, [1977] OLRB Rep. Apr. 216, the Board departed from the approach which required it to assess grievances in fair rep­resentation cases in the same way that a board of arbitration might, and suggested that the appro­priate remedy in fair representation cases is generally to send the matter to arbitration:

8. Not only did the Bachiu dictum result in protracted section [69] proceedings, it was also regarded in some quarters, and we think with some justification, as unfair to the employer who is, after all, only a party to a section [69] complaint because its rights might be affected thereby. Lest there be any misunderstanding on this point, we want to make it clear that the Board holds to the position that an employer should not be permitted to shelter behind a trade union's breach of its duty of fair representation, and thereby escape from its contractual obligation made mandatory by section 37 of The Labour Relations Act to answer in arbitration for 'its alleged violations of the collective agreement". Accordingly, the Board will continue to use its powers under section 79 of the Act, which include the power to override the specific provisions of a collective agreement, to ensure that an aggrieved complainant is not in that way deprived of the opportunity to obtain full and effective redress for a trade union's wrongful failure to carry his grievance to arbitration (for the Board's initial exercise of this remedial authority, see Leonard Murphy and International Printing and Graphic communications Union, Local 482, Board File No. 1687-76-U discussed infra). But that notwithstanding, we do not think it entirely fair to require an employer to defend itself against an alleged contract violation before a contra­vention of section [69] has been established.

9. With this analysis of the problems inherent in the procedural format suggested in Bachiu, we can now outline the procedure which the Board intends to adopt when dealing with section [691 complaints.

10. Where the Board determines that a trade union has violated its statutory duty of fair repre­sentation by failing to take an employee's grievance to arbitration, and where it further deter­mines that arbitration is the appropriate remedy in the circumstances, (which it will not always be, see paragraph 28), the Board will exercise its remedial authority under section 79 of the Act to make an order directing the union to arbitrate the grievance with whatever modifications of the collective agreement appear necessary to ensure that a fair and expeditious arbitration on the merits of the grievance takes place. If the union's denial of fair representation has aggra­vated the complainant's financial loss, the Board will also, at that time, make an order for dam­ages, apportioning liability as between the trade union and the employer in the event that the grievance succeeds at arbitration, together with whatever further orders that contingent order for damages may necessitate.

11. This procedure has already been used in another recent section [69] case. In Leonard Murphy (supra), the Board found that the arbitrary and bad faith conduct of the union had denied the complainants a chance to have their discharge grievances arbitrated. To rectify the loss occasioned by the union's breach of its duty of fair representation, the Board directed the union to arbitrate the grievances forthwith, notwithstanding certain potential collective agree­ment obstacles. Further, the union was required to compensate the complainants for their dam­ages directly attributable to the union's unfair representation. Because of the inherent conflict of interest resulting from the Board's contingent order for damages, the union was also ordered to engage counsel, jointly chosen by the complainants and the union, to present the complain­ants grievances at arbitration.

12. The implication of the procedure which the Board utilized in Murphy, and which the Board is now adopting, is that a party to an unfair representation proceeding (be in complainant, trade union or employer), need no longer feel compelled to present to the Board all its evidence on the merits of the complainant's grievance against the employer. The reason is that it will have a full opportunity to introduce that evidence before an arbitration board if the union is found to have committed a breach of its statutory duty and arbitration is indicated. We realize, of course, that many section [69] complainants appear before the Board without benefit of legal represen­tation and that they will be no more familiar with this new procedural format than they were with the old. So as not to deny a complainant a full and fair opportunity to make its case, the Board has not been in the past, and will not be in the future, unduly restrictive with respect to the evidence which it allows to be introduced in a section [69] proceeding. The adoption of the

new procedure, however, will mean that neither the union nor the employer will be required to respond to evidence which is of no relevance to the issue of whether the union is in breach of its duty of fair representation.

25. To summarize, the procedure which we have adopted for the adjudication of section [69] complaints is designed to avoid the twin pitfalls inherent in the procedure suggested in Bachiu -unduly protracted hearings and need for the employer to come forward with evidence to defend its actions in respect of the alleged contract violation before a violation of section [69] has been made out.

26. It should be emphasized that the procedure outlined in this decision does not mean that the parties to an unfair representation proceeding will now have no need of adducing evidence of the merits of the grievance underlying the complaint. The parties (particularly the complainant and the union) will still have an interest in conveying to the Board, through their evidence, a sense of how the complainant's grievance against the employer was likely to have been per­ceived by the trade union. There is in many section [69] cases, however, a great deal of evidence which, while very pertinent to the question of whether the complainant's grievance would be successful at arbitration, is not relevant to the issue of whether the union has dealt with that grievance in a proper manner.

27. Before concluding, we would add these further comments about the significance of the pro­cedure which we have adopted within the framework of the Board's developing section [69] jurisprudence. Before Gebbie, the remedy of referring the grievance of a successful complainant to arbitration was not regarded as available, the Board taking the view that an employer was not a proper party to a fair representation complaint, since section [69] imposed no duty upon it. In order to assess the complainant's damages, the Board, therefore, was required to make a judg­ment about whether the complainant would have secured a favourable arbitration award. Imperial Tobacco then held that an employer, although under no statutory duty to the com­plainant, could be joined as a party for remedial purposes; and, from that point on, it was no longer necessary for the Board to speculate on the outcome of arbitration. Nevertheless, the option of final adjudication by the Board was preserved: first, because there was a concern that a trade union which had violated its duty of fair representation by failing to take an employee's grievance to arbitration might not do a sincere job of presenting that employee's case at an arbi­tration hearing; second, because the Board was concerned about referring unmeritorious griev­ances to arbitration with the expense, delay and duplication of evidence which that would entail; and, finally, because the remedy of the Board finally disposing of an established section [69] vio­lation had always existed in theory, if not in practice, and the Board saw no immediate need to abandon that remedy simply because it was no longer restricted to an award of damages against the offending trade union.

28. With hindsight, the Board can now see that the uncertainty which was created by the preser­vation of that remedial option, with its unforeseen procedural ramifications, was neither neces­sary nor desirable. Should there be a concern now that a successful complainant will not be rep­resented fairly by his union at arbitration, that concern can be met by the Board making an order directing the union to retain counsel acceptable to the complainant, as was done in Murphy.

29. It is true that the abandonment of the remedy of final adjudication by the Board of the grievances which come before it under section [69] may service to delay and increase the costs to the parties in cases where a section [69] complaint succeeds. But that sacrifice is something which we believe, on balance, to be unavoidable. It should be emphasized, though, that not every successful section [69] complaint requires the remedy of arbitration. As we stated in Murphy, the whole point of a remedy for a violation of section [69] is to, as nearly as possible, put the parties into the position they would have been in had the unfair representation not occurred. Stated another way, the Board does not view section [69] as conferring upon a suc­cessful complainant an automatic right to have his grievance arbitrated. If the grievance is not one which his union would have been required to carry further had it not breached its duty of fair representation, the union should not be required to proceed to arbitration if it decides, after proper consideration, that it still does not wish to do so. This last conclusion suggests that the Board need not be concerned about abandoning the type of remedy which was ordered in Pap. It will be remembered that the Board there decided against referring the grievance of a successful complainant to arbitration, assuming it had authority to do so, not only because of the cost and time involved, but also because of the lack of merit in the grievance itself. That exercise of the Board's remedial authority, while perhaps supportable within its historical context - at a time when the Board was still uncertain as to its authority to require a union to arbitrate a griev­ance - would not, in our view, be an appropriate one today, regardless of its procedural implica­tions. Not only would a Pap-type remedy be of small consolation to a "successful complainant", it would also be inconsistent with the Board's concept of the purpose of a section 169] remedial order - that of restoring the status quo ante. The more appropriate response in a case where a union fails to take a grievance to arbitration, and it is not obvious that arbitration is necessary, is for the Board to direct the union to re-process the grievance from the point at which fair repre­sentation was denied. That is the kind of remedial response which the Board would have ordered in Pedalino (supra) had the views of the Vice-Chairman in that case been in the major­ity. It is, moreover, a remedial response which affords the parties an opportunity to voluntarily settle the grievance on terms which are not unfair to the complainant.

30. As things have developed since Massey-Ferguson Industries Limited, supra, referral of the applicant's grievance to arbitration has become a conventional remedy in duty of fair represen­tation cases. However, although this is now the primary remedy, it is not the only one. The Board will fashion a different remedy in circumstances in which it considers that sending the matter to arbitration is either unnecessary or otherwise inappropriate. For example, the Board has directed consideration of the grievance at an earlier stage in the overall process (Susan Forbes, [1993] OLRB Rep. Dec. 1283, Peter Galiatsos, [1992] OLRB Rep. June 714), has ordered the employee to be reinstated to his employment (Tim Turner, [1993] OLRB Rep. Aug. 811), and has awarded damages (Gerald Lecuyer, [1985] OLRB Rep. July 1099 and [1987] OLRB Rep. Jan. 72). In one case, the Board declined to award any remedy which might effect the employer because that employer had not been named as a party and had had no notice of the proceeding (David A. Spackman, [1991] OLRB Rep. Aug. 1006). However, the common thread which runs through all of the Board's jurisprudence, including the Board's decisions in what it is considered to be excep­tional circumstances, is that referral to arbitration is the primary remedy in duty of fair representa­tion cases.

III

9. In this case Cott did not have actual notice that the applicant's request for relief included a request that the matter be sent to arbitration until it received the Board's January 25, 1995 decision. However, unlike the situation in David A. Spackinan, supra, the company did have notice of the proceedings from the outset, and it had notice of the applicant's request that his griev­ance be sent to arbitration when it received the Board's January 25, 1995 decision. Unlike many employers in such cases, Cott chose not to take part in the proceedings before the Board at any stage, including the hearing convened to deal with the issue of remedy.

10. Section 69 of the Labour Relations Act establishes what is commonly referred to as the "duty of fair representation" it requires a trade union to represent employees in a bargaining unit for which it holds bargaining rights in a manner which is not arbitrary, discriminatory or in bad faith. In a case where an employee alleges that his/her trade union has breached section 69, the dis­pute is between that employee and the trade union, and, strictly speaking, it is not a matter with which the employer is directly concerned. The employer's concern arises, if at all, at the remedial stage because the most common remedy given to successful section 69 applicants in cases which involve a refusal by the trade union to take a grievance to arbitration (the majority of section 69 cases) is to require the trade union to take the employee's grievance to arbitration. The conven­tional wisdom has been that the employer has an interest in at least this aspect of a section 69 pro­ceeding because it is a party to any arbitration proceeding and is therefor directly affected, particu­larly if the Board's direction includes an order requiring the employer to waive time limits. By extension, it has been generally accepted that this gives the employer an interest and standing to participate in the entire section 69 proceeding, including the hearing on the issue of liability. In the result, most employers choose to, and having so chosen are allowed to, participate in the entire section 69 proceedings before the Board.

11. I have already observed that an employer has little or no direct interest in a dispute between an employee and his/her trade union which centers on a refusal by the trade union either to grieve or to take a grievance to arbitration. I am not sure that an employer's interest in ques­tions of remedy is not more apparent than real, although it may nevertheless be the case that the employer is entitled to notice and an opportunity to participate in that respect in any event.

12. The fact is that it would now be unusual for the Board to decline to order a grievance to arbitration to remedy a successful section 69 application. Further, subject to an order dealing with the apportionment of any compensation which may be directed if the grievance succeeds at arbitra­tion, what has the employer lost if the matter is ordered to arbitration? After all, where such a sec­tion 69 application succeeds, it is generally, as in this case, because the Board has concluded that the grievance should have been taken to arbitration in the first place. It may be that even in cases where the applicant has filed an application with the Board in a timely manner, an employer could allege that it would be prejudiced at arbitration as a result of the delay and intervening events such that it would be inappropriate for the matter to be sent to arbitration, and that the Board would then have to try to fashion some other remedy if it was persuaded that that was the case. However, the Board would expect an employer which has had notice of a section 69 application to make rea­sonable efforts to prevent such prejudice from arising.

13. In any event, in this case Cott has not alleged that it would suffer any prejudice, and (other than the obvious one relating to the apportionment of compensation if ordered at arbitra­tion) none is apparent on the materials before the Board. Further, the Act contemplates that griev­ances which can not be resolved between the parties will be arbitrated, which is why ordering the grievance to arbitration is the most common remedy granted to an employee in the applicant's position. Further, for the Board to attempt to fashion some other remedy in this case would in effect require the Board to arbitrate the grievance itself, something which it is not the Board's function to do in such cases.

14. In this case, I am not particularly troubled by the fact that Cott was not named as an actual party to the proceeding. It was identified as an interested party and has had notice of the proceedings throughout. It is not uncommon for labour relations tribunals to make orders which effect persons or other entities which have not been parties to proceedings before them. In arbitra­tion proceedings, for example, there are grievances which have an effect on other employees such that the law requires that they be given notice of the proceedings and an opportunity to participate in them. The fact that they may choose not to do so and are not formally added as parties does not preclude boards of arbitration from making awards which affect them. In the case of this Board, many proceedings result in decisions which affect persons which have been given notice but not been formally named as parties. Certification, termination of bargaining rights, and section 1(4) or 64 applications are examples of such proceedings. Accordingly, and having regard to the provisions in section 91(4) of the Act which gives the Board a plenary remedial jurisdiction in applications made under section 91 of the Act, I am satisfied that I have the jurisdiction to order the applicant's discharge grievance to arbitration as jointly requested by the applicant and responding trade union.

15. Further, in the circumstances of this case, having regard to the purpose and provisions of the Labour Relations Act and to my conclusions in the January 25, 1995 decision, and in the absence of any cogent reason not to do so, I find it appropriate to order that the discharge grievance of the applicant relating to the events on October 23rd to 26th, 1992 (see paragraphs 19 to 21 of the January 25, 1995 decision), be taken to arbitration. I further order that Cott waive any time limits or objections to timeliness in that respect.

16. Having so ordered, I remain concerned about the delays occasioned by these proceed­ings and the applicants own conduct in pursuing this application before the Board. Accordingly, I will remain seized with this matter for the purpose of dealing with any issue of apportionment which may arise if this grievance succeeds at arbitration and compensation or damages are ordered by the Board of Arbitration.

IV

17. The applicant also sought an order requiring the responding trade union to pay him $3,000.00 as compensation for his legal expenses in pursing this application before the Board. This request was opposed by the responding trade union.

18. Mr. Abbass described this as a request that the applicant be "made whole" by putting him in the position he would have been in but for the responding trade union's breach of the Act.

19. Notwithstanding counsel's attempt to characterize it differently, the applicant's request amounts to a request for an order for costs. I am aware that the Board has generally declined to award costs, but that it has done so on some occasions (see, for example, Canadian Union of Pub­lic Employees Local 2327, [1982] OLRB Rep. Mar. 342, sometimes cited as Suzanne Hebert -Vaillant, also a case involving what is now section 69). However, in Bellai Brothers Ltd., [1994] OLRB Rep. Jan. 2, a decision by a three person panel which I chaired, the Board wrote that:

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

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

22. The request for costs also goes against the grain of this Board's previous practice. Previous decisions not only indicate that the Board has no general practice of award­ing costs, but also raise the question of whether the Board has any procedural juris­diction to make an order for costs. See Dow Jones Ltd., [1970] OLRB Rep. June 382; Joifre Lapointe & Sons Ltd., [1971] OLRB Rep. Sept. 621. On some occasions, how­ever, the Board has made the payment of costs a condition for the granting of an adjournment. See Metropolitan Toronto Apartment Builders' Association et al, [1970] OLRB Rep. Nov. 846; R. 7'. Construction, [1971] OLRB Rep. June 342. From these cases, it can be seen that the Board has not attempted to exercise any general power to award costs. This approach might be attributed to the fact that the Board has not been given any express power to award costs. It should be noted, however, that the general procedural jurisdiction, conferred by both section 91(2) of The Labour Rela­tions Act and section 23 of The Statutory Powers Procedure Act, may be wide enough to encompass the power to award costs. Jurisdictional uncertainty, therefore, is not a particularly compelling explanation of the Board's reluctance to award costs. In our opinion, there is a much better reason for adopting a general practice of not awarding costs. The underlying purpose of The Labour Relations Act, as set out in its preamble, is to further harmonious relations between employers and employees through the col­lective bargaining process. The purpose is not well served by a procedure that usually requires the identification of a winner and a loser. The application of such a proce­dure, moreover, would be time-consuming, distracting the Board from its primary task of facilitating collective bargaining.

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

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

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

The Board has awarded costs in a section 126 proceeding involving a collective agreement which required a delinquent employer to pay legal or other costs of collecting monies owing with respect to bargaining unit employees (Rocco D'Andrea, [1987] OLRB Rep. July 986). The Board has also awarded costs to a successful applicant as part of the "make-whole" order (Academy of Medicine, [1977] OLRB Rep. Dec. 783; Suzanne Hebert-Vaillant, [1981] OLRB Rep. June 262).

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

37. It is difficult to distinguish between the cases in which the Board has awarded "costs", in whatever form, and those in which the Board has refused to do so. Further, the Board has expressed some doubts regarding its jurisdiction to award "costs". In Repac Construction, supra, the Board referred to a "jurisdictional uncertainty" but denied the request for costs on policy grounds. In Joe Arban Contractor Ltd. [1983] OLRB Rep. Apr. 547, the Board's decision reflects some doubt concerning the Board's jurisdiction to award costs outside of its general or remedial jurisdiction or with respect to adjournments. In Fitzhenry & Whiteside, [1987] OLRB Rep. Apr. 505, the Board said that:

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

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

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

[emphasis added]

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

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

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

Rule 57 of the Ontario Rules of Civil Procedure provides:

Factors of Discretion

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

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

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

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

(f) whether any step in the proceeding was;

(i) improper, vexatious or unnecessary, or

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

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

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

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

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

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

Costs Against Successful Party

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

Costs may be Fixed or Assessed

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

Authority of Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) direct the party to make restitution, including monetary compensation, for

loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) to administer oaths and affirmations;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

43. Except where legislation specifically so provides, or arguably in extraordinary circum­stances, costs are not an instrument for procedural control. In any event, the authority to award costs is not derived from the authority administrative tribunals are given to control their own processes. In Reference Re National Energy Board Ac:, [1986] 19 Admin L.R. 1the Federal Court of Appeal expressly held that subsection 10(3) [now section 11(3)] of the National Energy Board Act, which is analogous to subsections 104(13) and section 105(2) in the Ontario Labour Relations Act, does not empower the National Energy Board to award costs. (Subsection 10(3) [now subsection 11(3)] of the National Energy Board Act read (and now reads):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two general principles govern all remedies awarded in the labour relations context, including make-whole orders. First, the purpose of the Council's remedial authority is to place the aggrieved party, so far as possible, in the position it would have been, had the breach of the Act not occurred: Clarke Reefer Lines Ltd., B.C. I.R.C. (No. C223188); White Spot Ltd., supra. Second, remedies must be compensatory in nature and not punitive. Century Plaza Hotel Ltd. and H.R.E. U., Local 40, 11979] 3 Can LRBR 49 (BCLRB No. 32/79); Ron Hatfield and Wayne R. Lipskie, B.C. I.R.C. (No. C63/90), reconsideration of IRC No. C105/87.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

59. There is now some court jurisprudence which suggests that a person unrepresented by counsel may be able to obtain some order for costs, although this not appear to be the law in Ontario. However, nothing else has changed since the Bellai Brothers Ltd., supra, decision, and I am satisfied, for the reasons given in Bellai Brothers Ltd., supra, that the Board does not have the jurisdiction to award costs, either as part of the make whole remedy or otherwise, except in those limited circumstances in section 126 proceedings where a construction industry collective agree­ment empowers the Board to do so.

60. The applicant's request for compensation in that respect is therefore dismissed.

61. In the result, the applicant's discharge grievance is to proceed to arbitration forthwith in accordance with paragraph 15, above. The responding trade union is directed to provide the Board with a copy of any arbitration award which issues with respect to the grievance, or to advise the Board if the matter has been otherwise resolved.