[1996] OLRB REP. SEPTEMBER/OCTOBER 889
2097-96-U Toronto Transit Commission, Applicant v. Gord Wilson, Sid Ryan, Linda Torney, Ontario Federation of Labour, Canadian Union of Public Employees, and Labour Council of Metropolitan Toronto, Responding Parties v. Ms. Meenu Sikand-Taylor, Intervenor
BEFORE: Robert Herman, Alternate Chair, and Board Members S. C. Laing and D. A. Patterson.
APPEARANCES: Douglas K. Gray Robert A. Zigler, Michael J. Kennedy Gary Webster, Lori Findleton and Kavita Chhiba for the applicant; James Hayes for Labour Council of Metropolitan Toronto and Linda Torney; Judith McCormack, B. Sheehan and Andrea Bowker for Gord Wilson, Sid Ryan, Ontario Federation of Labour and Canadian Union of Public Employees; Brian Shell, Mark Rowlinson and Meenu Sikand-Taylor for the intervenor.
DECISION OF ROBERT HERMAN, ALTERNATE CHAIR, AND BOARD MEMBER S. C. LAING; October 24, 1996
This decision represents the written version of the decision provided today orally to the parties at the hearing.
This is an application brought by the Toronto Transit Commission ("TTC") pursuant to section 100 of the Labour Relations Act, 1995, in which it alleges that Gord Wilson, Sid Ryan, Linda Torney, the Ontario Federation of Labour, the Canadian Union of Public Employees, and the Labour Council of Metropolitan Toronto have breached the provisions of section 83 of the Act. The TTC alleges that these various responding parties have breached section 83 through various statements and communications they have made, in efforts to ensure that the TTC is unable to operate during the "Days of Protest". More specifically, the TTC alleges that these individuals and organizations have been appealing to people across the Province to protest and picket at TTC sites throughout Metropolitan Toronto, so that the TTC will not be able to operate. The TTC further alleges that because its sites will likely be picketed, as a result of these communications and statements, the members of one of its unions, Amalgamated Transit Union, Local 113 will not cross the picket lines to work, as scheduled, and will therefore engage in an unlawful strike. The TTC seeks various directions from this Board finding that the Act has been breached, and providing remedial relief from the picketing.
Section 83(1) of the Act reads as follows:
(1) No person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
The TTC argues that the statements made at various times by Mr. Wilson, Mr. Ryan and Ms. Torney constitute "acts" within the meaning of section 83, and the responding parties making the statements knew or ought to have known, that as a probable and reasonable consequence of those statements, protesters would picket around TTC sites. In turn, the probable and reasonable consequence of such picketing would be that members of the Amalgamated Transit Union ("ATU") scheduled to work would not do so, and would thereby engage in an unlawful strike.
The Board has already had to deal with applications that have arisen in connection with the "Days of Protest". In a recent decision in Livent Inc. (Board File No. 2081-96-U), the Chair of the Board described the legal framework in which the instant application arises, as follows:
As will be seen, the statute contains a comprehensive code that prohibits unlawful strikes, threats of unlawful strikes and behaviour intended to encourage unlawful work stoppages. Strikes are permitted only where there is no collective agreement in fo,-ce, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. At any other time. strikes are absolutely prohibited.
These provisions are part of a comprehensive regulatory scheme that has been in place for about 50 years. Under that scheme, collective bargaining is given a statutory framework which it lacked at common law, and trade unions are relieved of many of the common law disabilities which might inhibit the bargaining process. Strike regulations are only part of the overall scheme, and cannot be read in isolation from it.
The statute involves a balance. On the one hand, it supports collective bargaining, recognizes a freedom to strike, and immunizes lawful strike activity from both common law disabilities and certain forms of employer reprisal. But, at the same time, the statute regulates the manner and time in which such economic pressure can be exerted. In particular, the statute guarantees that once a collective agreement is signed, it becomes a "peace pact": there can be no strike or lock-out during its term of operation. This is not just a matter of contract or private agreement with the union. The law requires it.
This is not the first time that the Board has had to deal with work stoppages that arise in connection with the "Days of Protest" that have been organized by the labour movement (and others) in various cities in Ontario over the last few months. In two recent cases, the Board has declared that the "no strike prohibition" applies with equal force to so-called "political protest strikes" of this kind. (See: Re General Motors and CAW-Canada, [1996] OLRB Rep. May/June 129; and Re de Havilland Inc. and Bombardier Regional Aircraft Division and CAW-Canada et al., Board File No. 2021-96-U decision issued October 17, 1996. See also: Domglas Ltd., [1976] OLRB Rep. Oct. 569; affirmed by the Divisional Court (1978) 1978 CanLII 1625 (ON HCJ), 19 OR. (2d) 353 where the Board reached the same result in respect of a work stoppage to protest federal wage controls.) The Board has ruled that "political protest strikes" are still "strikes", and if they occur during the term of a collective agreement, they are unlawful.
In the case at hand, the TTC alleges that the three individual respondents, and the organizations with which they are connected, have breached section 83 of the Act. In an earlier oral ruling, the Board dismissed the application insofar as the Ontario Federation of Labour, CUPE, and the Labour Council were concerned, as the Board concluded that only "persons" are capable of breaching section 83 of the Act. The remaining part of the application asks that declarations issue against the individually named responding parties, Mr. Wilson, Mr. Ryan and Ms. Torney, declaring that they have breached section 83 of the Act. The TTC also seeks as remedies an order from this Board directing that the respondents cease and desist from causing or encouraging persons to picket premises and workplaces of the applicant on October 24, 25 and 26, 1996, an order that they be required to provide notice to or to instruct all participants in the "Days of Protest" to refrain from picketing at TTC sites, and orders prohibiting picketing within 30 metres of any vehicle entrances, exits, or driveways of any TTC property, prohibiting picketing within 300 metres of any TTC carhouse, garage or divisions as specifically listed, and an order prohibiting picketing at any subway station from 6:00 p.m. this evening, Thursday, October 24, 1996 until 6:30 a.m. tomorrow, Friday, October 25, 1996 and then from 12:01 a.m. Saturday, October 26, 1996 to 6:30 a.m. on that day. The TTC also asks for an order that all the Board's orders be binding upon anyone having notice or knowledge of such orders. Finally, the TTC asks that the respondents be made to pay any costs or damages as are subsequently determined by the Board that result from their unlawful conduct. With respect to this latter point, the parties have agreed that the Board remain seized with respect to any and all issues dealing with the request for damages.
We turn first to section 83 of the Act. The responding parties argue that the conduct complained of here, statements or communications engaged in by the three respondents, does not fall within the ambit of section 83, and that section 83 does not deal with the activity of "talking" or "speaking". With respect, we do not agree. Where section 83 refers to any "act", in our view this encompasses acts such as occurred in the matter before us. Just as picketers who carrying picket signs with messages written upon them would fall within the ambit of the provisions of section 83 of the Act, so too do individuals who make their statements verbally.
Section 83 also raises Charter issues, and the Board recently dealt with a challenge to section 83 based upon the Charter. In General Motors of Canada Limited, [1996] OLRB Rep. May/ June 409, the Board concluded that protest activity, of the sort that protesters are likely to engage in here at TTC sites, constitutes freedom of expression as protected by the Charter. The activity in question here also likely involves freedom of assembly. The Board there also concluded that even though Charter Rights were at issue, and even though section 83, amongst other sections of the Act, would restrict the exercise of such rights, such restrictions were demonstrably justified under section 1 of the Charter. We agree with and adopt the views expressed in that decision in this respect.
We are therefore satisfied that the provisions of section 83 apply to the circumstances at hand, and that those provisions do not breach the Charter. The question is whether any of the three responding parties have breached section 83. Turning to the evidence, we are satisfied that Mr. Wilson and Mr. Ryan have each made statements which were intended to have the effect of causing protesters to picket TTC sites, and which in turn were intended to have the effect of preventing TTC employees from working and thereby closing down the TTC. The Board is satisfied that ATU Local 113 members are unlikely to cross any such picket lines, and that it would be an unlawful strike for the members of ATU Local 113 to decline to do so. Local 113 has taken the position that if there are no picket lines at TTC sites, its members will in fact attend and work.
The responding parties argue, amongst other matters, that notwithstanding these statements by Mr. Wilson and Mr. Ryan, there was no causal connection between the statements and the unlawful strike that might result. While there may be many reasons why protesters will likely target TTC sites, in an effort to prevent the TTC from operating, the Board is satisfied that the positions of leadership of Mr. Wilson and Mr. Ryan and the statements they have made, would have played a meaningful role in any protest that occurs there. The Board therefore concludes that, because of their acts, as a probable and reasonable consequence thereof the members of Local 113 of the ATU will engage in an unlawful strike during the "Days of Protest".
1]. In contrast, on the evidence Ms. Torney has not made any such statements, and has not done anything at all unlawful.
In the result, the Board is satisfied that Mr. Wilson and Mr. Ryan have breached section 83 of the Act and we hereby so declare. However, the application is dismissed as against Ms. Torney.
That of course is not the end of the matter, as the question remains of what are the appropriate remedies that the Board should issue, beyond the declarations themselves. In determining the appropriate remedies, there are two critical points that must be remembered: first, it is worth considering the Board's jurisdiction in this area and second, Charter Rights are involved.
Turning to the first point, the Board does not have a general jurisdiction over picketing; rather, it deals, in circumstances such as those at hand, with questions of unlawful strikes or unlawful picketing, where the individuals on strike or who are likely to strike are not legally entitled to do so. If the strike itself is lawful, then the Board does not deal with particular picket line activity, and whether it might be unlawful. That jurisdiction is the courts'.
This Board is concerned with whether the rights and obligations under the Labour Relations Act, 1995 are honoured, and with labour relations issues, and this Board has no jurisdiction to deal with matters unrelated to such matters.
Here, the problem that is raised by the TTC revolves around concern that the employees of the TTC will not cross any picket lines, and this would be an unlawful strike. The TTC wants orders to enable the TTC to ensure, to the extent possible, that its employees will in fact attend at work, as required. The TTC is not seeking orders against its employees, but rather seeks orders to eliminate any picket line that it asserts, and we have found, will likely cause its employees not to work.
Any remedies should address and be tailored to preventing this unlawful strike. Here, what is likely to cause any unlawful strike is the picketing of TTC sites, and therefore any remedies should be addressed to eliminating or precluding pickets at TTC sites, so that the employees will not have to cross those lines, and are therefore able to work.
It is important to understand what the Board is not dealing with in this application, and that is the question of whether the TTC can conduct its operations without interference from the protests. What best illustrates what the Board is and is not dealing with is the remedy sought by the TTC with respect to picketing activity at or outside its subway stations. The TTC asks only that no picketing occur prior to 6:30 am. on each day, because by that time its collectors will have been able to enter the stations. After 6:30 am., the TTC does not request that we issue any order. The remedy sought by the TTC in this respect reflects the jurisdiction and concern of this Board, that no unlawful strike occur. Except as is necessary or incidental to this issue, this Board does not deal with ensuring that the TTC can fully operate. Indeed, had the TTC sought a prohibition against picketing outside subway stations at any time during the day or night, the Board would not grant it, because there is nothing before us to indicate that such a remedy is necessary to ensure that employees do not have to cross picket lines.
The second point worth making is to re-emphasize that significant Charter Rights are at issue in the circumstances. Even though the Board is satisfied that there must be some limits placed upon the rights of people to express themselves and to assemble, in order to ensure that no unlawful strike occurs, any limitation should be as narrow as possible, reflecting the significant and critical rights at issue. We are not dealing here with a typical employer-employee dispute, nor indeed, with a typical labour relations dispute. The provisions of section 83 do apply of course and have been breached, but any remedial response should restrict freedom of expression or freedom of assembly as little as possible in the circumstances. Just as the Board did in Sarnia Construction Association, [1982] OLRB Rep. June 922, where as a remedial response the Board established two gates around a construction site, one for striking employees and one for all other employees, similarly the Board should look here to establishing a remedial response that goes no further than is necessary to ensure that no unlawful strike occurs.
With these comments, we turn to the remedies. We have already declared that Mr. Wilson and Mr. Ryan have breached section 83 of the Act.
We also hereby direct that Mr. Wilson and Mr. Ryan cease and desist from causing or encouraging persons to picket any premises or workplaces of the TTC on October 24, 25 and 26, 1996, to the extent such picketing is restricted as follows.
With respect to particular restrictions on picketing activity, we have noted above already the particular restrictions sought by the TTC, that there by no picketing within 30 metres of any vehicle entrances, exits or driveways, within 300 metres of any carhouse, garage or division, and prior to 6:30 a.m. on each day at each subway station. The restrictions on picketing present an extremely difficult problem for the Board. As noted, significant Charter rights are at issue, and this is an extraordinary protest not at all typical of labour relations disputes. The Board is trying to balance the need to prohibit the unlawful activity, in an appropriate fashion, while preserving the rights of people in this Province to engage in Charter protected activity.
A significant difficulty in arriving at the appropriate balance in this respect is the lack of information before the Board which would enable the Board to draw such balances in practical terms. In this respect, we note that we have no evidence (nor indeed any pleaded facts) which advise the Board of the nature of the particular TTC premises where picketing is sought to be prohibited. We have no evidence of when employees are scheduled to arrive for work at particular sites, nor of the manner in which they work, their shifts, or how many employees are involved and so on. The Board is loathe to make orders generally restricting picketing without such information, again because we are to restrict picketing only to the extent necessary to ensure that employees don't have to cross picket lines.
Since we do not have evidence justifying a need to prohibit picketing 300 metres or even 30 metres from TTC sites, we will not impose such a direction.
Rather, we hereby order that at each TTC site, as identified in paragraphs I and 2 of the amended restrictions on picketing requested by the TTC, the TTC is to identify necessary access points or areas, whether they be a door, driveway, gate or whatever, to ensure that employees have unimpeded access to the work site or workplace as is necessary. Picketing is hereby prohibited in or around those access points or areas if it will interfere in any way with employees access to work or ability to work.
The Board suggests no minimum number of metres of "picket free" space, except to note that any such area or space should be no larger than is necessary to ensure that employees do not have to cross lines in order to work. The actual details will of course depend on the particular context. If one access point is sufficient in a location, to enable employees to work without crossing a picket line, then picketing is to be restricted only at that one point or area.
Within any "picket free" access point or area, access by employees to the workplace, or their ability to work, is not to be impeded in any manner.
And, for example, where bus drivers must be able to drive their vehicles in and out of terminals, in order to work, picketing is hereby prohibited in any manner from impeding such access and egress.
With respect to the subway stations, the TTC has asked that no picketing take place from Thursday 6:00 p.m. until Friday at 6:30 a.m., and from Saturday 12:01 am. until 6:30 a.m., during which times the TTC asserts it can arrange for its employees to enter the various stations. Similar to our other orders, no picketing is to take place at subway stations for whatever portion of the periods from 6:00 p.m. today to 6:30 a.m. tomorrow, and between 12:01 a.m. and 6:30 am. on Saturday during which employees would have to enter stations in order to work.
No doubt, the parties may wish to further discuss these restrictions.
Our orders are made binding upon the parties and anyone who has notice of or who is made aware of them.
The final matter is the request that Mr. Wilson and Mr. Ryan be required to instruct all participants in the "Days of Protest" to refrain from picketing. In this respect we make no such direction, but we do hereby direct that Mr. Wilson and Mr. Ryan advise participants in the "Days of Protest" scheduled for October 24, 25 and 26, 1996 of the declarations and directions that the Board has made herein.
This matter is adjourned on the basis discussed above.
Mr. Patterson's dissent will follow.
DECISION OF BOARD MEMBER D. A. PATTERSON; December 19, 1996
I. What follows are reasons for the dissent I provided orally on October 24, 1996.
With the exception of the finding that Linda Torney did not violate the Act, I dissent from the majority decision.
As a general matter, I do not believe that section 83 of the Labour Relations Act should be used, as it was here, as an instrument to regulate the general public's right to demonstrate.
The Metro Days of Action were part of a series of peaceful protests organized by broadly based, diverse social groups, and participated in both by members of these groups and by individual citizens. The Days of Action had its roots in the Ontario Federation of Labour convention in November 1995, where the delegates gave the leadership a mandate to form a coalition with other social justice groups for the purpose of educating the public about the government's policies and their impact on society, and to organize and mobilize the public around those issues. The Days of Action were political acts; they were not labour relations disputes. In bringing this application, the TTC has engaged the Board in an exercise that is far beyond the scope of its jurisdiction. The purposes of the Labour Relations Act include objectives such as "to facilitate collective bargaining", "to promote flexibility, productivity and employee involvement in the workplace", and "to encourage communication between employers and employees in the workplace". In other words, the goal of the Act is to regulate collective bargaining relationships. It is not intended to be used as a weapon to undermine popular political protest.
It is not surprising that the TTC was targeted as a site for people to protest the government's policies. The provincial government has cut its grants to the TTC 21% over a two year period. The results of these cut-backs is severe and affects thousands and thousands of people: the Eglinton subway line have been scrapped, costing 34,000 direct jobs and allowing the continuation of gridlock on the roads and the associated expense and inconvenience associated with commuting by automobile; cut-backs in WheelTrans service, which for many of its users is a vital link to the outside world, dramatically impacts on users' ability to participate in society (especially when imposed in conjunction with the government's 22% cut in disability financial assistance). The intervenor, a WheelTrans user whose objections to the cuts had gone unheeded up to now, merely wished to vocalize her concerns about the cut-backs to the broader public.
The TTC's application is an attempt to insulate itself from the impact of a political protest and, in so doing, invoke the powers of the Board to suppress the rights of Ontarians to freedom of speech, expression, and assembly. In my view, the Board should not have been so anxious to take on this role. Because this application is fundamentally political in nature, rather than relating to a labour relations problem, I would have declined to entertain it or to issue a remedy.
The majority held that Messrs. Wilson and Ryan violated section 83 of the Act. Without any authority or precedent to support it, the majority ruled that words could form the basis of a breach of s.83. I disagree. Section 83(1) provides as follows:
No person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out. (emphasis added)
By contrast, section 81 (which was not alleged to have been violated) provides as follows:
No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike. (emphasis added)
- Section 81 can be violated if a union "calls", "authorizes", "threatens", "counsels", "procures", "supports", or "encourages" an unlawful strike. It is obvious that words can form the basis of a breach of section 81. In contrast, section 83 can only be breached by certain "act[s]". If the Legislature intended to proscribe words in section 83, it could have and would have used terms similar to those used in section 81. It did not. Given this statutory language, I believe the majority should not have strained the regular meaning of "act" to encompass words. This is particularly so given the importance of the competing Charter rights of freedom of expression and assembly -- rights that are at the very heart of a democracy. As the Supreme Court of Canada noted in RWDSU v. Dolphin Delivery ((1986) 1986 CanLII 5 (SCC), 2 S.C.R. 573),
“Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection."
When important Charter rights are at issue, I believe it is more appropriate to interpret any ambiguity (which in any event I do not believe is present here) in favour of protecting the right.
Accordingly, I would have found that any statements made by Messrs. Wilson and Ryan in relation to the Days of Action could not form the basis for a violation of section 83 and I would have dismissed the application on that ground.
To interpret section 83 as regulate words is not only wrong, but unworkable. In order to prove a section 83 violation based on words the Board, in addition to satisfying itself that the union members would not cross a picket line set up by the protesters, would have to be satisfied that the people picketing at the TTC were there because of Messrs. Wilson and Ryan's comments. It is far from clear exactly how that could be established. In the complex political context in which these events took place, it is simply unrealistic to ascribe causality in this way. Indeed, it may well be argued that the policies of the Ontario Government were the "cause" of the picketing. Or perhaps it was because of something done or said by any one of the over 20 other community, student, teacher, health care, child care worker, disabled, disadvantaged, professional workers, etc. groups involved in organizing the Days of Action (a fact that leads me to speculate as to why these particular responding parties were singled out by the TTC.
This problem of determining causality is compounded given that the application was filed and heard before any of the impugned acts of picketing were committed. In my view, these difficulties only underscore the inappropriateness of utilizing section 83 in this political context and of interpreting section 83 as to apply to speech. Indeed, the majority appears to have faced the same problem as it, in paragraph 9, bases its finding of a violation of s.83 not on causality, but exclusively on a finding of an intention on the part of Messrs. Wilson and Ryan to close down the TTC, a finding that is without question insufficient to establish a breach.
I also disagree with the majority's unconditional adoption of the Board's holding in General Motors that section 83's restriction on Charter rights is demonstrably justifiable under section 1 of the Charter. The situation here is entirely different from the situation in General Motors. In General Motors, which took place in the context of an earlier Day of Action, the employer filed an application in response to an actual work stoppage by its employees. The employer asserted that the work stoppage constituted an unlawful strike. The union's contention, which was rejected by the Board, was that the political nature of the work stoppage meant that it was not a strike or, in the alternative, that the work stoppage was an exercise of the employees' freedom of expression and that any provision in the Act that prevents it is an infringement on the workers' Charter rights.
The Supreme Court of Canada has stated repeatedly, and the Board itself noted in General Motors, that a section 1 analysis is a balancing task that requires the decision-maker to place the conflicting values in their factual context. The issue in General Motors was the constitutionality of the restrictions on work stoppages during the term of a collective agreement, in the context of a dispute between the parties to the collective bargaining relationship. Here, the issue is of the constitutionality of restrictions on speech, in the context of an employer and two individuals with no connection to the workplace. By adopting the General Motors conclusion without considering the specific context, facts, parties, issues and competing values of this case, the majority failed to perform the section 1 analysis it was required to do.
This case deals with restrictions on the fundamental value of freedom of expression, directed at individuals who are not party to the collective bargaining relationship. This last characteristic sets this case apart from General Motors (as well as Dolphin Delivery, which was relied heavily upon by the applicant). Given these critical differences, I think there is considerable merit to the responding parties' argument that section 1 of the Charter does not "save" the infringement on freedom of expression in this case.
Finally, I disagree with the nature of the remedy granted by the majority, in particular, the direction that the applicant determine the specific locations at which picketing will be prohibited. When performing a section 1 analysis, the decision-maker is to decide whether an acceptable balance of competing interests has been struck, and in particular, whether constitutional rights are restricted to the least extent possible. To "contract out" this task to the TTC, as the majority has done, is to say the least inappropriate, and means that the majority did not complete its section 1 determination.