Power Workers' Union - Canadian Union of Public Employees, Local 1000 v. International Brotherhood of Electrical Workers, 1996 CanLII 11186

[1996] OLRB REP. SEPTEMBER/OCTOBER 826

0856-96-M Power Workers' Union - Canadian Union of Public Employees, Local 1000 and J. Caskanette, G.D. Chaffey, M.D. Collins, L. Crausen, H.R. Gillies, R.C. Hansen, G. O'Donnell, J. Stark, R. Thorns, H. Tomsett, and R.R. Young on their own behalf and on behalf of all members of International Brotherhood of Electrical Workers, Local Union 1788, Applicants v. International Brotherhood of Electrical Workers, Ken Woods, Allan Diggon, Torn McGreevy and International Brotherhood of Electrical Workers, Local Union 1788 by its Trustee, International Brotherhood of Electrical Workers and Ontario Hydro and Electrical Power Systems Construction Association, Responding Parties

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: L. A. Richmond for the applicants; David McKee for IBEW, Ken Woods and Tom McGreevy; Robert Little for EPSCA, Ontario Hydro; A. M. Minsky for IBEW-EPSCCO; James Hayes for IBEW, Local 1788.

DECISION OF THE BOARD; October 11, 1996

I. WHAT THIS DECISION IS ABOUT

1. By decision dated July 2, 1996, the Board dismissed this application for interim orders with reasons to follow. Here, therefore are the Board's reasons.

2. In order to put this application into context, it is necessary to briefly sketch out the history of the immediate dispute. For several years, there has been a dispute concerning work jurisdiction under the IBEW "Generation Projects" and "Transmission" collective agreements with the EPSCA. This dispute was brought to the Board in 1994 in the form a complaint by IBEW, Local 1788 alleging that the parent international union had violated what are now sections 147 and 149 of the Labour Relations Act, 1995 by altering Local 1788's jurisdiction and interfering with its autonomy without just cause. After a lengthy hearing, that complaint was dismissed by decision dated February 9, 1996 (reported as International Brotherhood of Electrical Workers [1996] OLRB Rep. February 70).

3. In April 1995, the International imposed a trusteeship on Local 1788. This was the subject of further applications to the Board (Board File Nos. 4396-94-U and 4397-94-M) which were settled.

4. On April 13, 1995, the Power Workers' Union - CUPE, Local 1000 filed applications for certification to displace Local 1788 as the collective bargaining agent for employees covered under both the Generation Projects and Transmission agreements. These applications also resulted in lengthy litigation in which no final decision has been issued to date.

5. In the main application in Board File No. 4077-95-U, the applicants alleged that after the trusteeship was imposed in April 1995, Local 1788 was run by the International and its representatives or agents, without any support from the membership of Local 1788. Indeed, in March 1996, some of the applicants herein filed a complaint (Board File No. 4100-95-U) seeking to terminate the trusteeship, while the International filed an application to extend that trusteeship (Board File No. 4225-95-T). The Board refused to grant such an extension on an interim basis, and the International took the position that its trusteeship over Local 1788 had ended. It is alleged that the International appointed an Executive Board for Local 1788 and indefinitely delayed calling elections in that respect.

6. Some of the applicants herein then filed a complaint (Board File No. 0162-96-U) alleging that this conduct constituted either a new trusteeship or a continuation of the previous one, which in either event they alleged was without just cause and contrary to the Act. This last complaint was settled on terms which included a protocol for a Local 1788 election.

7. The position of the applicants is that the original trusteeship is continuing and that it will not end until a new Executive Board is elected, or in the alternative, that a new and unlawful trusteeship has been imposed. The applicants allege that the International, through the trusteeship, has made unlawful use of Local 1788's assets, has improperly imposed a dues increase on members, and has conducted itself improperly in negotiating a new Generation Projects Agreement and a new Transmis­sion Agreement, to the detriment of members of Local 1788.

8. Against that background, the applicants filed this interim application in which they sought the following interim orders:

(1) An Order that the implementation of the terms and conditions of the Memorandum of Settlement respecting Generation Projects of May 23, 1996, that constitute an alteration of the terms or conditions of employment or any right, privilege, or duty of the employer or the employees from the terms or conditions of employment, or any right privilege or duty of the employer or employees that existed on April 13. 1995 be stayed until the Board determines the validity of the Memorandum of Settlement as a collective agreement in OLRB File No. 4077-95-U, or until the Board orders otherwise; and

(2) In the alternative, an Order that the terms and conditions of the Memorandum of Settlement of May 23, 1994, respecting the seniority rights of employees in the bar­gaining unit, to the extent they constitute an alteration of seniority rights in effect in April 1995, be stayed until the board determines the validity of the Memorandum of Settlement as a collective agreement in OLRB File No. 4077-95-U, or until the Board orders otherwise.

9. The first issue raised in the application was whether the Board has jurisdiction to grant the interim orders sought. The applicants submitted the Board does. The responding parties submitted it does not.

10. The parties made extensive written and oral submissions. I do not intend to repeat them. Suffice to say that the responding parties argued that neither section 98 nor anything else in the Labour Relations Act, 1995, gives the Board jurisdiction to grant the relief sought, and that there is nothing in the Statutory Powers Procedure Act ("SPPA") which gives the Board any such jurisdiction either.

11. Section 98 of the Act provides that:

12. (1) On application in a pending proceeding, the Board may make interim orders concerning procedural matters.

(2) The Board shall not make an order under subsection (I) requiring an employer to reinstate an employee in employment.

12. Section 98 came into effect on November 10, 1995 when Bill 7 was given Royal Assent.

II. THE INTERPRETATION ACT

13. I note that sections 16, 17 and 18 of the Ontario Interpretation Act were not referred to in argument. Nevertheless they deserve some attention. These sections could be taken to mean that a court or tribunal can not consider the content of previous versions of legislation as an aid to interpreting the current legislation. They have been in the Interpretation Act since at least 1950. They provide that:

14. The repeal of an Act shall be deemed not to be or to involve a declaration that the Act was or was considered by the Legislature to have been previously in force.

15. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law.

16. The amendment of an Act shall be deemed not to be or to involve a declaration that the law under the Act was or was considered by the Legislature to have been different from the law as it has become under the Act as so amended.

(I note that the Federal Interpretation Act contains similar provisions.)

14. The rule that the legislative history of an enactment is not admissible as an aid to interpreta­tion has been significantly eroded, particularly in constitutional or Charter cases. It is well established that the evolution of legislation; that is, the finished statutory product as it has been from time to time, can be referred to as an aid to interpreting legislation in its current form (Gravel v. City of St. Leonard 1977 CanLII 9 (SCC), [1978] 1 SCR 660 (Supreme Court of Canada); Hill v. Canada (A.G.) (1988) 1988 CanLII 67 (SCC), 48 D.L.R. (4th) 193 (Supreme Court of Canada)). And that is as it should be. After all, it is consistent with many other "rules" of statutory interpretation, including the presumption against tautology, to consider the nature and purpose of changes to a piece of legislation, one of which purposes may be to change the law. It would not be possible to do so without referring to the evolution of the statute or the particular provision in question.

15. Further, sections 17 to 19 of the Interpretation Act cannot mean that a legislative amendment does not change the law. It is readily apparent that that is sometimes precisely what the Legislature intends to do. What these provisions mean is that one cannot automatically assume that a change to legislation was intended to change the law (see, for example, Crupi v. Canada Unemployment and Immigration Commission [1986] 3 F.C. 3 (Federal Court of Appeal); McGuigan v. R 1982 CanLII 41 (SCC), [1982] 134 D.L.R. (3rd) 625 (Supreme Court of Canada); R. v. Potvin 1989 CanLII 130 (SCC), [1989] 68 C.R. (3rd) 193 (Supreme Court of Canada)). These provisions do not mean that one must or should ignore the past. It is patently obvious that the Legislature does change the law from time to time and it is quite appropriate to examine prior versions of legislation for the purpose of ascertaining whether the law has changed, and if so, how it has changed. Indeed, it is quite appropriate to look at successive changes in legislation to determine whether these reveal a direction, or possibly a reversal in direction, in the evolution of the legislation. This is why courts and tribunals can say that changes or lack of changes to legislation codify or reverse jurisprudence on a point, and why the re-enactment of legislation is considered to mean that the Legislature has confirmed or adopted the existing interpretation. Accordingly, when faced with a question of interpretation, courts and tribunals, including this Board, have long considered it appropriate to consider the evolution of the legislation. This comes to form part of the adjudicative "expertise" which courts and tribunals bring to bear on matters which come before them.

16. I therefor find it appropriate to compare section 98 of the present Act to the interim relief powers contained in section 92.1 of the Bill 40 Act, which was repealed and replaced by the current Act. Section 92.1 of the Bill 40 Act provided that:

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

(2) A party to an interim order may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

III. THE QUESTION

17. In essence, the issue between the parties was whether the Board's power to make "interim orders concerning procedural matters" under section 98 of the Act restricts the Board's jurisdiction to orders concerning the conduct of proceedings before the Board, or whether the meaning of "procedural" in section 98(1) is not restricted to procedural matters strictly so called.

18. The essence of the responding parties' argument was that the Board's jurisdiction under section 98 of the Act is limited to making orders which regulate the conduct of litigation before the Board, and that the Board has no jurisdiction under section 98 to make orders which relate to the substantive rights or obligations of the parties which may be in issue in that litigation.

19. The essence of the applicants' argument comes down to this: "concerning procedural matters" does not mean relating to purely procedural (within the common meaning of that word) matters only, and whether or not an order relates to a "procedural matter" within the meaning of section 98 depends on whether an order effectively disposes of substantive matters in issue in the litigation. That is; the applicants argued that an order which is obtained as a step in the process for enforcing substantive rights without effectively determining the final outcome of the litigation is a "procedural matter".

20. One might think that the interpretation question raised in this case is not a particularly difficult one. After all, what does "procedural" mean if not "relating to the process" rather than to the exercise of rights under the Act? Unfortunately, when it comes to questions of statutory interpretation things are often not so simple, as evidenced by the texts and jurisprudence dealing with such questions. Indeed, the "rules of statutory interpretation" do not always yield a consistent result when applied to a particular question of interpretation.

IV. THE RULES OF INTERPRETATION

21. In this case, the parties concentrated on two "rules" of statutory interpretation: the presump­tion against tautology; and the principle that words must be read in the context of the provision and legislation as a whole. There are many other such "rules" as well.

22. The "modern" rule of statutory interpretation can be simply stated as follows:

One must determine the meaning of legislation in its total context, having regard to the purpose of legislation, the consequences of the proposed interpretation(s), the presumptions and special rules of interpretation, and the admissible extensive aids.

(see Sullivan, Ruth; Driedger on the Construction of Statutes, 3rd Edition, Toronto, Butterworths, 1995, at page 427).

The interpretation given to a legislative provision must be plausible, consistent with the apparent legislative purpose, and reasonable and just.

23. Perhaps the best place to start in this case is with the modern presumptions of statutory interpretation. These presumptions, which, as the label itself suggests, are no more than assumptions which are rebutable, and which may or may not apply depending on the circumstances, are:

24. The Presumption of Knowledge and Competence. That is, the Legislature is presumed to know the existing statutory law and jurisprudence, and how courts and tribunals function.

25. The Presumption Against Tautology. That is, it is assumed that the Legislature avoids superfluous or meaningless words, and does not pointlessly repeat itself. Every word is presumed to advance the legislature purpose. This does not mean that the Legislature cannot repeat itself, it means only that repetition is not to be assumed (see Hill v. William (Park Lone) Ltd. [1949] AC 530 at 546 (House of Lords)). Pursuant to this presumption, interpretations which render portions of a statute meaningless, pointless or redundant are to be avoided. However, this presumption is easily rebutted by suggesting cogent reasons for the redundant or superfluous words; perhaps, for example, in an "of caution" ap­proach. Indeed, as McLachlin J. pointed out (albeit in dissent) in Chrysler Canada Ltd. v. Canada (Competition Tribunal) 1992 CanLII 68 (SCC), [1992] 2 SCR 394 (Supreme Court of Canada), Legislatures often use superfluous words.

26. The Presumption of Consistent Expression. That is, that within the same statute, the same words have the same meaning and different words have different meanings. Statutes are not novels, and legislators are presumed to adopt a fixed pattern of expression.

27. The Presumption of Implied Exclusion. That is, to express one thing is to exclude another, and a failure to mention something indicates an intent to exclude it. This presumption is rebutable by alternative explanations, competing considerations and drafting errors.

28. The Presumption of Coherence. That is, internal conflict is to be avoided by presuming that the parts of a statute fit together to form a rational and internally consistent framework which accomplishes the intended goal.

V. APPLYING THE RULES

24. There is no question that section 92.1 of the Bill 40 Labour Relations Act gave the Board a broad substantive interim authority, which the Board exercised in some cases and chose not to in others, as it considered appropriate. There is also little doubt that not every one in the labour relations community was happy with the fact that the Board had such a broad interim relief power, or with the manner in which the Board exercised that power. The conventional wisdom is that it was in response to these concerns that section 92.1 was repealed and section 98 enacted. I do not find it appropriate to consider this "conventional wisdom", except to the extent that it may suggest what the Legislature intended to accomplish.

(a) SUPPORT FOR THE APPLICANTS' PROPOSITION

25. When one applies the presumption of knowledge and competence, and the presumption against tautology to the words of section 98(1) in the context of the current Act as a whole, it is apparent that the current Act contains other provisions, as the Bill 40 Act also did, which give the Board all of the procedural powers it requires to conduct and control its proceedings. That is, even without section 98 under the current Act, the Board has the procedural powers it needs to supervise the litigation which is conducted before it. In that respect, subsections 110(16) to (20) provide that:

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

(17) The Board may make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as it considers advisable.

(18) The Board may make rules to expedite proceedings to which the following provisions apply:

1. Section 13 (right at access) or 98 (interim orders).

2. Section 99 (jurisdictional, etc., disputes).

3. Subsection 114(2) (status as employee or guard).

4. Sections 126 to 168 (construction industry).

5. Such other provisions as the Lieutenant Governor in Council may by regula­tion designate.

(19) Rules made under subsection (18) come into force on such dates as the Lieutenant Governor in Council may by order determine.

(20) Rules made under subsection (18),

(a) may provide that the Board is not required to hold a hearing;

(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and

(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

In addition, section 111(2) provides that:

(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;

(h) 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;

(c) 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;

(d) to administer oaths and affirmations;

(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not;

(f) 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;

(g) 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 (f);

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

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

(j) to authorize the chair, a vice-chair or a labour relations officer 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;

(k) to bar an unsuccessful applicant for any period not exceeding one year 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 one year from the date of the dismissal of the unsuccessful application;

(l) to determine the form in which evidence of membership in a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or signification that is not presented in the form so determined;

(m) 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;

(n) 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.

26. No one suggested any examples of purely procedural powers which section 98 could arguably add to the procedural powers given to the Board in other provisions of the Act, and it is difficult to see what section 98 could add in that respect.

27. Further, in Highland York Flooring Company Limited [1993] OLRB Rep. July 607, the Board in effect held that section 92.1 of the Bill 40 Act was not directed at questions of practice and procedure, and that the Board's jurisdiction to order prehearing production or make other procedural directions or orders derived from what are now sections 110 and Ill of the Act quite independent of the Board's section 92.1 interim jurisdiction.

28. Indeed, the way that section 98(2) is structured suggests that even interim reinstatement is a "procedural matter" for purposes of the provision. Why else would section 98(2) be necessary? Section 98(2) provides that the Board "shall not make an order under subsection (1)"; that is, an interim order concerning procedural matters, "requiring an employer to reinstate an employee to employment." As the applicants argued in this case, it is difficult to characterize the reinstatement of an employee as a purely procedural matter.

29. Consequently, reading section 98 as a whole in the context of the Act as a whole, as I am required to do, and applying the presumption of knowledge and competence, and the presumption against tautology, suggests that the Board retains a substantive interim jurisdiction, and that section 98 does not operate to restrict the Board's interim jurisdiction to purely procedural matters.

(b) SUPPORT FOR THE RESPONDING PARTIES' POSITION

30. Prior to section 92.1 in the Bill 40 Act, there was no provision in the Act which gave the Board any substantive interim relief power. Accordingly, although the Board routinely gave orders or directions having to do with procedural matters, it did not purport to give "interim relief' in any substantive way until the Bill 40 Act, including section 92.1, was proclaimed. A comparison between the words of section 92.1 of the Bill 40 Act and section 98 of the current Act reveals several significant differences.

31. First, section 92.1(1) specified that the Board could grant interim orders "including interim relief'. Section 98(1) provides that the Board can make interim orders but the phrase "including interim relief' has been dropped. This suggests that in terms of jurisdiction the Board has less now than it did under section 92.1.

32. Second, section 92.1(1) provided that the Board could put terms on its interim orders. Section 98(1) of the current Act does not. One can easily imagine how terms might be appropriate when an order affecting the very issues in dispute is made. It is equally easy to see how no such provision is required when it comes to matters concerning the conduct of a proceeding, since it follows that the Board exercises a continuing supervisory power in that respect, particularly in light of the broad procedural authority the Board has under section 111(2), for example.

33. Third, old section 92.1(2) provided that the party to an interim order could file and enforce it through the courts. Again, one could see how this might be necessary for substantive orders, but it seems completely unnecessary with respect to matters of practice and procedure since the Board is the master of its own procedure and of necessity continuously supervises its own proceedings. Further, the other places in which similar "file and enforce" provisions are found all deal with orders related to substantive rights of parties (see, for example, section 96(6) - the unfair labour practice enforcement provision; section 99(10) - jurisdictional disputes, etc. provisions; and section 102 - respecting unlawful strike or lockout declarations). Again this suggests a decreased interim jurisdiction for the Board.

34. A comparison between section 98 and the interim powers the Board has under section 99 (in subsection 5) is also instructive. Section 99 follows immediately after section 98. Section 99 also had significant amendments made to it by Bill 7. Yet the word "procedural" which is used to describe the Board's interim power in section 98(1) is nowhere to be found in section 99(5). This also suggests that interim jurisdiction the Board has under section 98(1) is different in kind from the interim jurisdiction it has under section 99.

35. I am also aware of some rather old common law jurisprudence which could be read to suggest that because procedure refers to litigation process or steps in a proceeding, everything which does not effectively amount to a final determination of the proceedings is procedural (see, for example, Livesley v. Horst Co. (1925) 1924 CanLII 18 (SCC), 1 D.L.R. 159 (Supreme Court of Canada); Re:Marchant [1908] 1 K.B. 998 (Court of Appeal); McHarg v. Universal Stock Exchange Limited [1895] 2 Q.B. 81 (Court of Appeal). With respect, this is not a proper reading of this jurisprudence. Livesley v. Horst Co., supra, for example, was a conflict of laws case in which the Supreme Court of Canada said:

The exception embraces a very wide field, and among other things excludes procedure, because the policy of the English law recognizes no vested rights in procedure, and a party invoking the jurisdiction of the Courts must take procedure as he finds it. The concept of procedure, too, is, in this connection, a comprehensive one, including process and evidence, methods of execution, rules of limitation affecting the remedy and the course of the Court with regard to the kind of relief that can be granted to a suitor.

But in the very next sentence, the Court went on to say:

But it does not, of course, extend to substantive rights; and here questions as to substantive rights include all questions as to the "nature and extent of the obligation" under the foreign contract.

Similarly, Brown v. Keele 1934 CanLII 252 (MB CA), [1934] 4 D.L.R. 508 (Manitoba Court of Appeal), another case sometimes cited as standing for the proposition that "procedure" is not limited to matters of pure procedure, contains the following passage:

Referring to the meaning of "procedure" in its application in English law under the rule that all matters of procedure are governed wholly by the law of the country wherein an action is brought (lex fori), Dicey's Conflict of Laws, 4th ed., p. 798, says that English lawyers give the widest possible extension to it. It includes all legal remedies, and everything connected with the enforce­ment of a right. It covers, therefore, the whole field of practice; it includes the law of evidence, as well as every rule in respect of the limitation of an action or of any other legal proceeding for the enforcement of a right. At p. 800, he adds that an English statutory enactment, which affects both a person's right and the method of its enforcement, establishes a rule of procedure.

That was an access or right of action case which raised a constitutional issue which had nothing to do with the substantive rights in issue between the parties. The issue was whether a provincial statute which provided for security for costs applied to a plaintiff who brought an action under the Criminal Code of the day. The Court specifically held that both laws were substantive and not procedural, and also that the provincial law did not apply to the Criminal Code.

36. Similarly, in its unanimous decision in RJR-Macdonald Inc. v. Canada (Attorney-General) (1994) 1994 CanLII 117 (SCC), 111 D.L.R. (4th) 385, the Supreme Court of Canada said:

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.

However, this sentence is in a paragraph in which the court is discussing exceptions to the general rule that a judge should not engage in an extensive review of the merits in determining whether an interlocutory (or interim) injunction should be granted, and is within the "Analysis" section dealing with the appellant's request for an injunction pending the disposition of the main action. While there are significant procedural elements to interlocutory injunction proceedings, there are also significant substantive elements to them. Indeed, the RJR-MacDonald, supra case deals with the request for an order suspending the operation of regulations under the Tobacco Products Control Act, which it seems to me is much more than a procedural matter.

37. Accordingly, even this line of cases recognizes that there is a distinction between matters of procedure and matters of substantive law, and at most stands for the proposition that procedural matters can affect substantive rights. This line of cases does not stand for the proposition that "procedural" is not limited to "procedure". Procedure covers the field of practice, and while procedure affects the exercise of substantive rights and relates to the means by which rights disputes are disposed of, it does not cover the manner in which rights are disposed of. The latter is a substantive matter. If it were otherwise, everything would be a procedural matter, which it is clear on any analysis is not the case. It does not stand for the proposition that an order is procedural if it is not final. Many procedural orders are clearly final for purposes of procedure, and even interim orders which as a practical matter may be effectively final, are by definition not final as a matter of law. Accordingly, it is not useful to try to distinguish procedural orders from substantive orders on the basis of whether they are final or not.

38. The legislature, which must be taken to have been aware of the Board's practices and jurisprudence, and of the evolution of the Labour Relations Act, could simply have repealed section 92.1 and replaced it with nothing. But it did not do that. Nor it did do any of a number of other things it might have done. However, it did replace 92.1 with section 98, a provision which is significantly different, and which stands in sharp contrast to other provisions of the Act, including the one which immediately follows it.

39. Consequently, while interpreting section 98 as providing the Board with no substantive interim jurisdiction renders the provision somewhat redundant, I am satisfied that the Legislature intended to alter the Board's interim jurisdiction in precisely that way, and that section 98 is intended to underline that message.

VI. CONCLUSION REGARDING S.98

40. Accordingly, I find that the Board does not have the jurisdiction to grant interim relief sought by the applicants in this case under section 98 of the Act.

VII. OTHER CONSIDERATIONS

41. In arriving to this conclusion, I have considered that rights for which there are no meaningful remedies are fragile at best. But this is best considered in a debate about whether the Board should or should not have substantive interim relief powers, a debate which I do not consider it useful or appropriate to enter into in this decision. It suggests nothing about whether the Board does or does not have a substantive interim relief power.

42. I also considered that as a remedial statute, the Labour Relations Act, 1995 should be liberally construed. But liberal construction does not mean that the Board can create its own jurisdiction. The Board's jurisdiction comes from the Act (or other applicable legislation), not out of the air or because of some perceived need for jurisdiction which the Act does not give to the Board.

43. In that respect, one variant of the "effective remedy" theme is that remedies must be timely to be effective. This is true, but does not mean that the Board has, whether by implication or otherwise, a substantive interim relief power. What it does mean, as the Board and the Courts have long recognized, is that labour relations litigation must be initiated and pursued expeditiously, and it suggests that what is required are fast final decisions, not interim decisions which do not finally dispose of disputes. Indeed, for most of its history the Board has had no substantive interim relief power. Consequently, while the Board stands ready to deal with matters brought before it as expeditiously as the resources allocated to it permit, to fashion appropriate remedies for breaches of the Act, and subject to what follows below, the Board is limited by the remedial jurisdiction the Act gives it. The Board cannot simply do whatever thinks is appropriate (for example, the Board cannot impose fines or other penalties).

VIII. THE SPPA

44. This is still not the end of the inquiry. There remains the question of the SPPA and how it affects the Board's jurisdiction to grant interim orders.

45. The SPPA includes the following provisions:

3.-(l) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

(2) This Act does not apply to a proceeding,

(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act applies;

16.1 (l)A tribunal may make interim decisions and orders.

(2) A tribunal may impose conditions on an interim decision or order.

(d) An interim decision or order need not be accompanied by reasons.

32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by­laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

(emphasis added)

46. There can be no doubt that the SPPA applies to the Board (although equally clearly it does not apply to arbitrators under the Labour Relations Act, 1995). The question is whether the SPPA, and specifically section 16.1, affects the Board's interim jurisdiction.

47. Ontario Hydro and the IBEW-EPSCCO, supported by the other responding parties, except by IBEW Local 1788 which took no position on this issue, submitted that there is no conflict between the SPPA and the Labour Relations Act, 1995, and that section 16.1 of the SPPA therefor does not prevail over section 98 of the Act. Counsel pointed to Re: Law Society of Upper Canada and Junger (1991) 1991 CanLII 8332 (ON CTGD), 85 D.L.R. (4th) 12 (Ontario Court (General Division), and submitted that there is no conflict between the SPPA and the home statute of a tribunal to which case the SPPA applies merely because the SPPA would grant the tribunal a broader power than it's home statute.

48. With respect, I do not read Junger, supra, as standing for that proposition. What the Court said in lunger, supra, was that the application of section 32 of the SPPA, as it then was, was limited to procedures and hearings of the tribunal leading to a decision, and not to enforcing a decision. This conclusion is clearly obiter. Further, section 32 of the SPPA was amended in 1994. The section 32 which the court commented on in Junger, supra, provided that:

49. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by­laws made under it apply notwithstanding anything in this Act, the provisions of this Act and of rules made under section 33 prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

Amended in 1994, it now reads as follows:

32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by­laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

33. In Junger, supra, the Court focused on the fact that at the time the SPPA contained two parts: Part I being entitled "Minimum Rules for Proceedings of Certain Tribunals"; and Part II being entitled "Statutory Powers Procedure Rules Committee", and suggested, it appears, that section 32 applied only to Part II and not to all the provisions of the SPPA.

34. Such a distinction is no longer sustainable. The SPPA still contains a Part I, which retains the title it had before 1994, but there is no Part II. Part II, and all the provisions related to the Rules Committee have been repealed. Section 32 has been retained, although in an altered form. What does it apply to if not the other provisions of the SPPA? Further, section 32 now expressly provides that the provisions of the SPPA prevail over the provisions of other legislation to which the SPPA applies, as well as any provisions, rules or by-lays made under that other legislation.

35. Further, I am satisfied that the argument that where a tribunal's home statute deals with the matter, there is no conflict with the SPPA even if the SPPA confers greater authority, even if the SPPA has not been expressly excluded, simply cannot be sustained. The purpose of the SPPA is to provide tribunals that applies to with a minimum jurisdiction. By definition, a statute which provides some lesser jurisdiction in the same area conflicts with the SPPA.

36. The question then becomes whether there is a conflict between 16.1 and section 98 of the Labour Relations Act, 1995. In this case, there will only be a conflict if section 16.1 confers interim authority which extends beyond matters relating to the conduct of the proceedings; that is, beyond purely procedural matters.

37. The words "procedural" or "relating to proceedings" (or any other derivation of the word "procedure") is nowhere to be found in section 16.1 of the SPPA. As in the Labour Relations Act, 1995, such references are found elsewhere in the SPPA (for example, "procedural requirements" in section 4(1); "procedural matters" in section 4.2(1); "with respect to the conduct of the proceeding" in section 5.3(3)). In addition, section 16.1(2) provides that a tribunal may impose conditions on an interim decision or order, the same sort of provision which accompanied the substantive interim relief power in section 92.1 of the Bill 40 Act, and which is found in provisions of the current Act which gives the Board substantive interim relief power (in section 99, for example).

38. Finally, notwithstanding that the SPPA is primarily directed at procedural matters, it is difficult to see what section 16.1 could be directed at if not substantive interim relief jurisdiction, having regard to the comprehensive procedural provisions in the rest of the SPPA. (Similarly, it is far from obvious that other provisions of the SPPA, section 21.2 for example, do not have substantive elements to them.) And unlike section 98 of the current Act, which replaced an earlier provision (section 92.1) in the Bill 40 Act with a clearly narrower jurisdiction, section 16.1 replaced nothing. It was a new provision added in 1994 which was not altered by Bill 7 (although Bill 7 did address the SPPA in changes it made to the Labour Relations Act). As such, it must have been intended to add something to the jurisdiction of tribunals to which the SPPA applies. I am unable to discern what that addition could be other than a substantive interim relief power.

IX. CONCLUSION

55. I am therefore satisfied that section 16.1 of the SPPA confers an interim relief power on tribunals, like the Board, to which the SPPA applies which is more than purely procedural, which gives the Board jurisdiction to give substantive interim relief. Neither section 98 of the Act, nor anything else in the Act which is directly linked to section 98, expressly excludes the operation or application of section 16.1 Of the SPPA (as other provisions in the Act do: see section 110(2), for example). Accordingly, pursuant to section 32 of the SPPA, section 16.1 of the SPPA must prevail over a more limited section 98. The Board therefore has the jurisdiction to grant substantive interim relief, including the relief sought by the applicants herein. (I make no comment on whether, and if so how, section 98(2) of the current Act, for example, may limit the Board's interim jurisdiction.)

X. THE BOARD'S APPROACH

56. Accordingly, I turn to a consideration of this application on its merits.

57. I begin by observing that although the Board's interim power now stems from the SPPA rather than from the Labour Relations Act, 1995, section 16.1 of the SPPA is written in the same broad language that section 98.1 of the Bill 40 Act was. There is no apparent reason for the Board to approach interim applications differently from the way it did under the Bill 40 Act.

58. From the outset, the Board has approached its interim relief power with caution, and the Board's approach under section 92.1 of the Bill 40 Act was still developing when that legislation was repealed and replaced by the current Act. Nevertheless, the Board's basic approach to its substantive interim relief power under the Bill 40 Act was relatively well established. In Ombudsman Ontario [1994] O.L.R.B. Rep. July 885, at paragraphs 7 to 13, the Board described that approach as column:

59. As the Board observed in Loeb Highland, supra, section 92.1(1) of the Act gives the Board a new broad discretion to intervene in any proceeding, or intended proceeding, before the Board. It has been described as an addition to the Board's remedial arsenal (Tate Andale Canada Inc., supra). There is nothing in section 92.1(1) which limits its use or suggest that it only be used in extraordi­nary cases. On the other hand, neither does it suggest that interim relief is appropriate or should be granted in every case. While interim relief is not an extraordinary remedy within the context of the present legislation, neither is it there just for the asking. On the contrary, section 92.1(1) provides the Board with a labour relations tool which is to be wielded carefully, having regard to the circumstances of each case. It is to be used like a scalpel, not like a hammer or other blunt instrument, in cases in which the Board is satisfied that there are good labour relations reasons for intervening in a labour relations dispute pending the litigation of the merits of that dispute.

60. Because section 92.1(1) is labour relations legislation intended to be used as a labour relations device, a civil litigation approach may provide some guidance, but should not be rigidly applied by the Board (see Tate Andale Canada Inc., supra, at paragraph 39). Similarly, when viewed as a whole, the Labour Relations Act in this province is unlike labour relations legislation in any other North American jurisdiction. Accordingly, the experience in these other jurisdictions is of limited assistance.

61. The Board's approach to interim relief applications has been to avoid as much as possible prejudicing the merits of the main application (which in the case of an "intended proceeding" may not even be formally before the Board). However, there will inevitably be some connection between the interim application and the main application such that some assessment of at least the apparent merits of the main application must inevitably be made.

62. In the result, a two-pronged "test" has emerged in the Board's interim relief jurisprudence to date. First, assuming the applicant's assertions to be true, is there an arguable breach of the Labour Relations Act (or presumably any other legislation with respect to which the Board plays an adjudicative role) for which there is a remedy which the Board is arguably empowered to give? Second, if so, does the balance of labour relations harm favour the granting of interim relief?

63. In Tate Andale Canada Inc., supra the Board observed, in paragraph 52, that:

“……where the employer bears the legal onus of establishing that it has not contravened the Act, it is hardly surprising that the union request that the "pre-discharged" status quo be maintained until the employer meets the statutory onus cast upon it. If the employer is obliged to establish that its removal of the employees from the workplace was nor unlawful, there is nothing counter-intuitive about keeping them there until it does so…..”

(emphasis added)

This comment must be read in the context of the situation before the Board in that case; namely, the discharge during an organizing campaign of employee organizers, and not as a suggestion that the onus in interim proceedings necessarily lies with the party which bears the onus in the main application - which may not even have been brought. There is nothing which absolutely prohibits discharges or layoffs prior to certification, before a first collective agreement, or between collective agreements. Nor is there anything which requires that a discharged or laid off employee must be reinstated on an interim basis in such circumstances.

12. The two-pronged test developed by the Board suggests that at least the initial onus is on an applicant for interim relief to satisfy the Board that interim intervention is appropriate. Conse­quently, an applicant must plead an arguable or prima facie case. This is not a particularly onerous hurdle since an applicant should be able to describe its allegations in a manner which suggests that it may have something to complain about. Further, an applicant must establish that interim relief is appropriate; namely, that it will suffer some substantial labour relations harm unless the Board intervenes pending the disposition of the application it has pleaded on its merits. This is not terribly onerous either, since it only requires an applicant to explain why it seeks interim relief and what labour relations harm will occur if it does not obtain the interim relief it seeks. In determining whether interim relief is appropriate, the Board also looks to the responding party's assertion of harm to see whether there is any countervailing labour relations harm which makes interim relief inappropriate. That is, the Board weighs the respective harms and assesses whether interim relief is appropriate.

13. Because of the wide variety of proceedings and circumstances in which interim relief may be sought, a flexible approach to the two-pronged test is indicated, so that the appropriate labour relations result may be achieved in each case.

(See also, Beef Improvement of Ontario Incorporated [1994] O.L.R.B. Rep. April 341, application for reconsideration dismissed June 3, 1994, unreported; Vistamere Retirement Residence [1994] O.L.R.B. Rep. Sep. 1274.)

59. There is no obvious reason why the Board's general approach to applications for interim orders should be different now, even though its substantive interim jurisdiction comes from the SPPA and not the Labour Relations Act, 1995. I observe that although the Boards' authority now derives from a statute of general application rather than from its constituent statute, that authority is nevertheless appropriately exercised having regard to the framework and context provided by the constituent statute; that is, the Board must look to the Labour Relations Act, 1995 for guidance with respect to the exercise of its interim authority. In other words, although the legal foundation for the Board's interim relief jurisdiction has shifted to the SPPA, the exercise of that jurisdiction must be informed by the current Act (and not by the Act as it was prior to November 10, 1995).

60. The labour relations rights, duties and obligations under the Bill 40 and other previous versions of the Act have not been fundamentally changed by the current act. The fundamental purpose of the Act remains to facilitate collective bargaining between employers and trade unions that are the freely designated representatives of employees, and to promote the expeditious resolution of workplace disputes. Employees continue to have the right to join or not join trade unions, to support or oppose trade unions, and to be free from threats, intimidation or coercion with respect to the manner in which they choose to exercise their rights under the Act. Unions continue to have right to organize employees free from interference by employers or persons acting on their behalf, and to represent and bargain on behalf of the employees they represent. Employers also continue to have the rights they had before, including the right to freely express themselves (subject to the limitations in the Act), and to be free of work stoppages except as provided for in the Act.

61. Accordingly, I think it appropriate to continue down the same path the Board embarked upon under the Bill 40 Act modified as appropriate by the legal regime established by the current Act (and not be conventional wisdom or the sensibilities of some interest group). This path will continue to evolve and develop, and the Board will continue to recognize that requests for interim orders must be made in a timely manner, and that relief obtained through an interim order is extraordinary in the sense that it is relief which is given without any finding on the merits, and to which the receiving party may ultimately not be entitled, in circumstances where the Board has no costs jurisdiction to alleviate the burden which an interim order may cause to a responding party which ultimately prevails. Accordingly, the Board must continue to exercise caution, and be sensitive to the potential for harm in circumstances where the best alternative is generally a fast disposition of the dispute on its merits rather than on some interim basis. Nevertheless, there will continue to be cases where substantive interim orders are appropriate for labour relations reasons.

62. It is from on this perspective that I turn to the merits of the application.

XI. THE MERITS

63. First, I note that this is but one more piece of an extensive litigation puzzle involving the internal workings and organization of the IBEW, its various construction Locals and the IBEW Electrical Power Systems Construction Council of Ontario ("IBEW-EPSCCO"), and the EPSCA and Ontario Hydro, a struggle in which the Power Workers Union, with whom former representatives and members of the IBEW, Local 1788 are now associated, has become involved through applications for certification in which the PWU seeks to displace IBEW Local 1788 as bargaining agent.

64. In essence, the applicants, which are the PWU and individual members of the IBEW Local 1788 who support the PWU, allege that "Ontario Hydro/EPSCA and IBEW-EPSCCO" have negotiated and entered into a collective agreement in a manner which is contrary to sections 86(2), 87(2), 79, and 149 and 74 of the Act, for purposes of this application, by destroying the seniority rights Local 1788 members have enjoyed for some 40 years. (I note that with respect to section 74, section 99(5) of the Act gives the Board a broad interim relief jurisdiction. It is not necessary to resort to the SPPA in that respect.) They allege that the immediate impact on the applicants is the loss of the right to bump on a province-wide basis, and to retain seniority if they are hired from the out-of-work list. They allege that the harm to the PWU is a perception that it is unable to protect its supporters.

65. Although it is not entirely clear that the applicants have a clearly arguable case on all the breaches of the Act they allege, they clearly do on some of them. Due to the disposition of this application, I find it unnecessary to delve into that question further. Suffice is to say that I consider that the applicants made out enough of an arguable case for me to address the second prong of the test which the Board has developed; that is, balancing the harm which would likely result if the orders requested are not granted on one hand, and if they were granted on the other.

66. I was not satisfied that the applicants had pointed to any actual harm which had or is about to occur. On the contrary, the harm alleged was entirely speculative.

67. Further, although the harm being alleged by the applicants had broader labour relations elements in it, it was primarily personal so far as the individual applicants are concerned. If there is one thing that is clear from the Board's interim jurisprudence, it is that the interim power is to be used for labour relations reasons, not personal ones, however significant these may seem to be to the individuals involved. Accordingly, it will generally be inappropriate for the Board to grant interim orders with respect to personal harm issues (see, for example, Morrison Meat Packers Ltd. [1993] O.L.R.B. Rep. April 358). This is particularly true where, as I am satisfied is the case here, any harm which may be suffered by the individuals can be remedied if the applicants are ultimately successful. In that respect, I reject the applicants' assertions that it will be impossible to fashion appropriate remedies for the seniority rights problems, although I do not deny that some difficulties may be presented.

68. Nor was I persuaded by the applicants "chilling effects" arguments with respect to the PWU's applications for certification. Those applications have been made and representation votes have been held (although the ballot boxes have been sealed pending the outcome of the litigation of various issues, which litigation has progressed much more slowly than anyone involved, including myself as the Vice-Chair seized with that litigation, would like). It is not at all clear what chilling effect, or other harm, which has not yet occurred in any event, there could be here in that respect, and it is insufficient to establish a labour relations harm which would form an appropriate basis for the interim orders sought.

69. On the other hand, I was satisfied that granting the orders sought could create significant labour relations problems for the collective bargaining parties whose conduct is challenged by the applicants, by upsetting the collective bargaining balance they have sought to achieve, and could at the same time have the same kind of negative impact on members of other IBEW Locals which the applicants complain of.

70. Finally, there is the question of delay. It may be that the delay in this case, which on the applicants' own materials is at least three weeks (from May 24, 1996 when it is alleged that IBEW Local 1788 stewards were advised that a collective agreement which have been rejected by the membership was going to be signed by the IBEW-EPSCCO, to June 17, 1996 when this application was filed), but it could be viewed as being as long as thirteen weeks having regard to the history of internal acrimony which gives context to the particular circumstances (from May 24, 1996 when a Memorandum of Settlement which allegedly contained concessions, including the stripping of seniority rights which the applicants complain of, until June 17, 1996).

71. A delay of three weeks would not have caused me to dismiss this application without considering it on its merits. Nor would it otherwise have caused me any great concern. Parties are entitled and expected to consider and formulate their positions before coming to the Board. However, I did find it appropriate to consider the longer period of thirteen weeks, when it ought to be apparent to the applicants that the matters they complained of in this interim application were a concern, as a factor in assessing the merits of the application (as the Board has done on other cases: see William Neilsen Ltd. [1994] O.L.R.B. Rep. March 326; Price Club Canada Inc. [1993] O.L.R.B. Rep. July 635; Morrison Meat Packers Ltd., supra).

72. As I already indicated above, a fundamental purpose of the Labour Relations Act, 1995 which has remained constant throughout the legislative history of the Labour Relations Act in Ontario is to facilitate collective bargaining and promote the expeditious resolution of workplaces disputes.

73. Further, it is well accepted that "labour relations delayed are labour relations defeated and denied", and it is therefore important that labour relations litigation be commenced and pursued with reasonable diligence. (In that respect see the comments of Supreme Court of Canada in Dayco (Canada) Ltd. v. CAW-Canada 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230 at pages 306 to 307.)

74. It is particularly important that a request for interim relief be made in a timely manner. Such relief this "extraordinary" in the sense that it is relief which is given notwithstanding that there has been no hearing or decision on the merits of the case, and is relief to which the receiving party may not be entitled in the result. Accordingly, it is appropriate for the Board to take any delay in making or pursuing an application for interim orders into account when considering whether interim relief is appropriate, or when considering whether it will entertain such an application on its merits.

75. This does not mean that the party must or should come to the Board at the first sign of trouble. It is quite appropriate for a party to take some time to consider its options, and to pursue a non-litigation resolution of the dispute. It is almost inevitable that some time will pass between the time when a dispute arises and an application for an interim order is made. The question is not whether the party has delayed in coming to the Board, but rather whether there has been undue delay in pursuing an application to the Board.

76. In this case, history suggests that there was no reasonable prospect for any resolution between the parties. Further, the dispute involves a complex collective bargaining situation. Even at its simplest, collective bargaining is a process in which the Board is reluctant to intervene, but if interven­tion is necessary or appropriate, it should occur at the earliest possible stage and not, if at all possible, after the process has come to fruition in the form of a collective agreement.

77. In this case, I considered the applicants delay to be undue in the circumstances.

78. In the result, and having regard to all the circumstances, including the timing of the filing of this application, I was not satisfied that it was appropriate to grant the interim relief requested. In the exercise of the Board's discretion I therefore dismissed the application.