Ontario Public Service Employees Union v. The Crown in Right of Ontario, 1996 CanLII 11200

[1996] OLRB REP. SEPTEMBER/OCTOBER 780

3731-95-M Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario Represented by Management Board of Cabinet, Responding Party v. Association of Management, Administration and Professional Crown Employ­ees of Ontario (AMAPCEO), Intervenor

BEFORE: Robert Herman, Alternate Chair, and Board Members R. W Pirrie and P V. Grasso.

APPEARANCES: Donald K. Eady Barbara Linds and Eileen Wesley for the applicant; D. Brian Loewen, Anna Hoad, Ed Farragher and Lorey Simpson for the responding party; Gary Gannage, Steven Barrett, Cynthia Petersen, Gary Hopkinson and Janet Ballantyne for the intervenor.

DECISION OF ROBERT HERMAN, ALTERNATE CHAIR, AND BOARD MEMBER P. V. GRASSO; October 7, 1996

Background

1. This is an application for interim relief brought by the applicant, Ontario Public Service Employees Union (OPSEU), relying upon the provisions of section 98 of the Labour Relations Act, 1995 (the "Act") and 16.1 of the Statutory Powers Procedure Act ("SPPA"). It raises the question as to the Board's jurisdiction, and approach, under the new interim relief section in the Act, and under the SPPA. This matter was heard on January 31 and February 1, 1996. In a short decision issued February 5, 1996, the Board unanimously decided that no interim relief would issue, with our reasons to follow at a later date. We now provide those reasons.

2. OPSEU is the bargaining agent with respect to six of the seven bargaining units, established by order of the Lieutenant Governor in Council, covering employees with the provincial Crown. The bargaining agent with respect to the seventh bargaining unit is the intervenor, the Association of Management, Administration and Professional Crown Employees of Ontario (AMAPCEO). Indeed, AMAPCEO initially filed its own applications, an application under section 114(2) of the Labour Relations Act, 1995, and a companion request for interim relief, both similar in kind to the applications filed by OPSEU. However, the three parties agreed that AMAPCEO would not proceed with its interim application, but would be added as an intervenor, with full participation rights, in the instant application.

3. The "merits" application (Board File No. 3730-95-M) is an application by OPSEU brought pursuant to section 114(2) of the Labour Relations Act, 1995. That section reads as follows:

(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

4. The application arises out of a dispute over the interpretation and application of new criteria for excluding employees from coverage under the Crown Employees Collective Bargaining Act, 1993 ("CECBA"). Specifically, pursuant to section 13 of Bill 7, section 1.1(3) was added to CECBA. This section reads as follows:

(3) This Act does not apply with respect to the following:

9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations.

10. Persons employed in a minister's office in a position confidential to a minister of the Crown.

11. Persons employed in (he Office of the Premier or in Cabinet Office.

12. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, a minister or a deputy minister about employment-related legislation that directly affects the terms and conditions of employment of employees in the public sector as it is defined in subsection 1(1) of the Pay Equity Act.

13. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, the Minister of Finance, the Chair of Management Board of Cabinet, a deputy minister in the Ministry of Finance or the Secretary of the Management Board of Cabinet on any matter within the powers or duties of Treasury Board under sections 6, 7, 8 or 9 of the Treasury Board Act, 1991.

14. Persons employed in the Ontario Financing Authority or in the Ministry of Finance who spend a significant portion of their time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the Consolidated Revenue Fund, including persons employed in the Authority or the Ministry to provide technical, specialized or clerical services necessary to those activities.

15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

16. Section 67 of Bill 7, dealing with the effective date of some of the amendments, reads in part as follows:

17. (1) This section applies with respect to bargaining units that include, on the day this section comes into force, persons to whom the old Act applied but to whom the new Act does not apply.

(2) A trade union that is the bargaining agent for employees in a bargaining unit that includes persons described in subsection (I) ceases to represent those persons 90 days after this section comes into force, and they cease to be members of the bargaining unit.

6. The effective date of the exclusions was February 8, 1996. Because of these amendments, the parties had a number of meetings to discuss the operation of the new exclusionary criteria and their application to particular individuals. OPSEU and the Crown, represented by Management Board of Cabinet, were in dispute over approximately 300 positions. The Crown maintained that these positions were to be excluded by the new amendments, and OPSEU asserted that the positions properly remained covered by CECBA, and therefore the employees remained members of one of the OPSEU bargaining units. All of these discussions took place in the context of the then pending strike by OPSEU. While OPSEU members had not yet held a strike vote, it was clear by early February that a strike might be imminent.

7. In terms of the merits, the Crown asserts that the employees to be excluded work in Cabinet Office, the Premier's Office, the Public Appointments Secretariat, Management Board, the Ontario Financing Authority, and the Ministry of Finance - Controllership and Taxation Data branches.

8. OPSEU does not challenge the proposed exclusion of employees working in Cabinet Office or in the Office of the Premier. It does however dispute the individuals sought to be excluded who work in the Public Appointments Secretariat, and it disputes the purported exclusion of certain individuals working in the Program Management and Estimates Division of Management Board Secretariat. By far the largest category of employees in dispute between the parties are those who work for the Ontario Financing Authority, most employed by the Province of Ontario Saving Office ("P050"). As OPSEU put it, most of the people sought to be excluded are customer service representatives (bank tellers) performing clerical functions which have nothing to do with the statutory basis for exclusion; that is, those "who spend a significant portion of their time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the Consolidated Revenue Fund ..." (cf. CECBA, s. 1.1(3)14).

9. As the parties were not able to resolve these disputes themselves, OPSEU and AMAPCEO filed the applications referred to above, both the "merits" application filed pursuant to section 114(2) of the Act, and the instant application for interim relief in support thereof. In the interim application, OPSEU asks that the Board order that none of the challenged exclusions be excluded pending a decision on the merits. In response to these applications, the Crown took the position that the Board did not technically have jurisdiction under section 114(2) of the Act to consider the application, as the issue here does not raise a question as to whether a person is an employee or not, which question gives the Board jurisdiction under section 114(2), but only raises the question of whether a particular person or employee is now excluded from the applicability of the provisions of CECBA. The Crown noted that neither CECBA nor the Labour Relations Act, 1995 give the Board jurisdiction to deal with such a question. Nevertheless, the Crown consented to the Board dealing with the merits in the main applica­tion, on the basis that the parties need a resolution of the dispute, the Board is the appropriate adjudicative forum, and there is no apparent alternative available to the parties. The Crown does not, however, consent to the Board dealing with the dispute on an interim basis, pursuant to section 98 of the Labour Relations Act, 1995 or section 16.1 of the Statutory Powers Procedure Act.

The Legislation

10. It is helpful to set out the legislation dealing with interim relief that was contained in Bill 40. Section 92.1 of Bill 40 read as follows:

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.

11. Subsequent to the passage of section 92.1 in Bill 40, the Legislature amended the Statutory Powers Procedure Act, to add the following sections:

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

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

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

17. A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party.

(2) A tribunal that makes an order for the payment of money shall set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated.

12. As well, section 32 of the Statutory Powers Procedure Act reads as follows:

13. 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.

14. All of Bill 40 was repealed by Bill 7, including section 92.1, and the Labour Relations Act, 1995 now includes the following section:

15. (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 (1) requiring an employer to reinstate an employee in employment.

14. Neither in section 98 or elsewhere did the Legislature provide that the provisions of section 98 were to apply despite anything in the SPPA.

The Board's Jurisdiction under section 98 of the Labour Relations Act. 1995

15. There were no background materials put before us to aid in our interpretation, and reference by the parties was made only to the Act, the prior provisions in Bill 40, and the SPPA. The Crown's primary argument is that section 98(1) only confers upon the Board powers to "make interim orders concerning procedural matters", and "procedural matters" are orders that touch only upon "procedural" issues. For example, asserts the Crown, this section gives the Board the power to make interim directions with respect to which parties proceed first, whether parties must produce documents or other material, whether parties must file certain particulars, and so on.

16. One difficulty with this interpretation of subsection 1 of section 98, and more specifically the phrase "concerning procedural matters" contained therein, is that all of these powers, and other similar "procedural" ones, are already contained elsewhere in the Act. Indeed, when Bill 40 was the law, the Board commented on its pre-existing ability to make (for example) production orders without resort to a specified interim power: see Highland York Flooring Company Limited [1993] OLRB Rep. July 607. In section 111(2) of the Act, the Board is given the power, for example:

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

(b) 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;

17. When invited to suggest an example of a "procedural" matter that the Board would be without jurisdiction to order, but for the provisions of section 98(1) of the Act, the Crown was unable to do so.

18. It is also instructive to refer to the wording of section 98(2) of the Act in considering the meaning of section 98(1). Section 98(2) reads as follows:

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

19. Here the legislative intention seems clear: the Board is not to make an interim order which "require[s] an employer to reinstate an employee in employment". What is instructive is that subsection (2) notes that the Board "shall not make an order under subsection (1)" to this effect. It follows that such an order of reinstatement would, but for subsection (2), arguably fall within the ambit of subsection (1), at least in the view of the legislative draftsman. This wording in subsection (2) might seem to suggest that orders under subsection (1) are not limited to strictly "procedural" matters, at least as so characterized by the Crown, but extend to the way parties must interact or behave in the workplace pending a "final" determination in the proceeding before the Board. To similar effect is the marginal note beside subsection (2), which says "exception", buttressing the point that the restriction set out in subsection (2) is a restriction upon the Board's authority otherwise contained in section 98(1).

20. Section 98(1) does not contain a specified power to issue "interim relief', as was contained in its predecessor, section 92.1, but only to grant "interim orders". The significance of this change is not clear. One might argue that the elimination of the power to grant "relief' by way of interim order suggests that the Legislature did intend to restrict the sorts of interim orders that the Board had been granting under Bill 40, that the word "relief' contains an aspect of "remedy" or "remedial direction" within it, while the word "order" does not. This argument is not particularly persuasive when one compares the language and ambit of section 98 to section 99, where one finds that the term "interim order" includes both "remedial" and substantive features.

21. Section 99 of the Act reads as follows:

22. (1) This section applies when the Board receives a complaint,

(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another;

(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another; or

(c) that a trade union has failed to comply with its duties under section 74 or 75.

(2) A complaint described in subsection (I) may be withdrawn by the complainant upon such conditions as the Board may determine.

(3) The Board is not required to hold a hearing to determine a complaint under this section.

(4) Representatives of the trade union or council of trade unions and of the employer or employers' organization or their substitutes shall promptly meet and attempt to settle the matters raised by a complaint under clause (l)(a) or (b) and shall report the outcome to the Board.

(5) The Board may make am' interim or final order it considers appropriate after consulting with the parties.

(6) In an interim order or after making an interim order, the Board may order any person. employers' organization, trade union or council of trade unions to cease and desist from doing anything intended or likely to interfere with the terms of an interim order respecting the assignment of work.

(7) When making an order or at any time after doing so, the Board ma)' alter a bargaining unit determined in a certificate or defined in a collective agreement.

(8) If a collective agreement requires the reference of any difference between the parties arising out of work assignment to a tribunal mutually selected by them, the Board may alter the bargaining unit determined in a certificate or defined in a collective agreement as it considers proper to enable the parties to conform to the decision of the tribunal.

(9) Where an employer is a party to or is bound by two or more collective agreements and it appears that the description of the bargaining unit in one of the agreements conflicts with the description of the bargaining unit in the other or another of the agreements, the Board may, upon the application of the employer or any of the trade unions concerned, alter the description of the bargaining units in any such agreement as it considers proper, and the agreement or agreements shall be deemed to have been altered accordingly.

(10) A party to an interim or final 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.

(II) An order that has been filed with the court is enforceable by a person, employers' organization, trade union or council of trade unions affected by it and is enforceable on the day after the date fixed in the order for compliance.

(12) A person, employers' organization, trade union or council of trade unions affected b)' an interim order made b)' the Board under this section shall comply with it despite an)' provision of this Act or of an)' collective agreement relating to the assignment of the work to which the order relates.

(13) A person, employers' organization, trade union or council of trade unions who is complying with an interim order made by the Board under this section is deemed not to have violated any provision of this Act or of any collective agreement.

(emphasis added)

22. This is a new section in the Act, and at least in part can find its antecedents in the Act as it existed prior to Bill 40, and in Bill 40 itself. For example, under Bill 40, the Board was given the power to consider and deal with jurisdictional disputes (Bill 40, s. 93) by way of "consultation", and to make interim orders in such a proceeding or process. In the new Act, the Board's ability to consult and make interim "orders" is expanded to other types of complaints (i.e. section 74 and 75 complaints). Through section 99(5), the Board is given the power in dealing with such matters to "make any interim or final order it considers appropriate" after consulting. The language of section 99(5) is identical to that in Bill 40 (section 93(1.2)), except that the predecessor section granted interim powers after an inquiry as well as after a consultation.

23. Subsection (6) of section 99 states that an interim "order" can be in the nature of a "cease and desist" order (hardly a procedural matter that regulates a proceeding). Along with final orders, an interim "order" can be filed in the Ontario Court (General Division) and is then enforceable as such (section 99(10)). Section 99(12) states that interim orders issued under section 99 take precedence over provisions in the Act or a collective agreement which relate to the assignment of the work to which the interim order relates.

24. As is evident, substantive interim "orders" can issue under section 99, notwithstanding the use of the noun "order", rather than "relief'. It is difficult, given this language, to argue convincingly that the use of the word "orders" in section 98(1), and the deletion from Bill 40 of the word "relief', in reference to the interim power, demonstrates a legislative intention that the section 98 interim power have no remedial aspect, but is meant only to authorize the granting of lesser "orders".

25. What is of significance is that the express power to grant interim orders in section 99 is not modified by the adjective "procedural", as it is in section 98. The unmodified interim power granted in section 99(5) suggests that there is an intentional restriction on the interim power in section 98, that the authority granted there is limited to "procedural matters". And of course, the section 98 interim power applies to proceedings brought under section 99, even though it is difficult to posit an interim order the Board could make under section 99 (or section 111(2)) that it could not make but for section 98 (other than interim orders that are made when the Board has not first consulted with the parties).

26. Thus, the juxtaposition of sections 98 and 99 and the different language used therein, does suggest that the Legislature intended section 98 to be a grant of interim power different in kind than that granted in section 99, and that it intended the authority under section 98 to be limited to matters that are procedural (i.e. deal with the conduct of the proceeding).

27. This interpretation of section 98 does render the section somewhat redundant as a grant of power, and the words used in section 98 may not be the clearest expression of this purpose. Both of these points have been canvassed above. But this interpretation appears to reflect the intention of the Legislature in passing section 98. It is in looking at the history of the section, its language, and the other grants of the interim power in the Act that this interpretation seems the most likely.

28. Further buttressing this interpretation are the new provisions setting out the powers of arbitrators to make interim orders. Sections 48(12) and (13) read as follows:

29. 12. An arbitrator or the chair of an arbitration board, as the case may be, has power,

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

(b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;

(c) to fix dates for the commencement and continuation of hearings;

(d) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases; and

(e) to administer oaths and affirmations,

and an arbitrator or an arbitration board, as the case may be, has power,

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not;

(g) to enter any premises where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking place or has taken place concerning any of the differences submitted to the arbitrator or the arbitration board, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any such thing or any of such differences;

(h) to authorize any person to do anything that the arbitrator or arbitration board may do under clause (g) and to report to the arbitrator or the arbitration board thereon;

(i) to make interim orders concerning procedural matters;

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

(13)An arbitrator or the chair of an arbitration board shall not make an interim order under clause (12)(i) requiring an employer to reinstate an employee in employment

(emphasis added)

29. The language of sections 48(12)(i) and (13) is virtually identical to the relevant language in section 98(1) and (2). The SPPA does not apply to arbitrators under the Act, and unlike the Board, arbitrators must find their authority solely within the Labour Relations Act. 1995. Section 48(12) speaks generally to the grant of powers to arbitrators to conduct hearings (and to apply certain statutes cf.s. 48(12)0)). When one looks at sections 48(12) and (13) in this context, it appears as if these sections are intended to grant arbitrators the power to run hearings and to direct the conduct of the parties in the proceeding, not the conduct of the parties in the workplace unrelated in any way to the conduct of the proceeding. As the language in section 48(12) and (13) is so similar to the language in section 98(1) and (2), any interpretation of section 98(1) that concluded that the Board's power contained therein was substantially greater than orders dealing with matters of procedure would logically also govern arbitra­tors' powers. But it is difficult to interpret sections 48(12)(i) and (13) as granting arbitrators the right to make a wide variety of orders that govern workplace conduct and rights pending a final decision. Such an interpretation would no doubt be surprising to the arbitration community.

30. The wording of section 98 is somewhat ambiguous, but on balance we conclude that the Legislature intended in enacting section 98 that the Board only issue interim orders dealing with "procedural matters", that is, the conduct of the proceeding and related matters.

31. This conclusion, however, does not end our inquiry.

Jurisdiction under the Statutory Powers Procedure Act

32. The Board also has a separately-founded interim order authority under the SPPA. OPSEU and AMAPCEO submit that under the provisions of section 16.1 of the SPPA, the Board has the full range of interim powers that it enjoyed prior to the repeal of Bill 40 and the passage of section 98 of Bill 7. It will be easier to follow our analysis if we set out again the provisions of sections 16.1, 17 and 32 of the Statutory Powers Procedure Act:

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

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

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

17. A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party.

(2) A tribunal that makes an order for the payment of money shall set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated.

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. As will be seen, section 16.1 gives all tribunals to which the SPPA applies, an independent authority to make interim decisions and orders; moreover, pursuant to section 32, should there be any conflict between provisions of the SPPA and other provincial statutes, the provisions of the SPPA are to prevail (in this regard, see Thompson and Lambron County Board of Education, 1972 CanLII 1191 (ON HCJ), [1972] 3 O.R. 889, upheld on appeal at 1972 CanLII 447 (ON HCJDC), [1973] 1 OR. 766). Section 110(21) of the Act (newly enacted in Bill 7) is an example of such "override":

34. (21) Rules made under subsection (18) apply despite anything in the Statutory Powers Procedure Act.

35. There is no dispute that the provisions of the SPPA apply to the Board, unless explicitly exempted in the Labour Relations Act, 1995, as was done in section 110(21). OPSEU and AMAPCEO thus argue that the effect of any limitation on interim powers contained in section 98 of the Act cannot stand in the face of the generally unlimited jurisdiction to grant interim relief granted to tribunals, such as the Board, in section 16.1 of the SPPA. Section 16.1 overrides or subsumes any limitations on interim powers in section 98. The Legislature must be taken to have been aware of the SPPA at the time it passed Bill 7, submit OPSEU and AMAPCEO, both because of the general presumption to this effect, and because the new section 110(21) it enacted explicitly recognizes the SPPA, and states that certain rules made under section 110 are to apply "despite anything in the Statutory Powers Procedure Act." It must follow, they argue, that the Labour Relations Act, 1995 was passed with an actual awareness of the content and meaning of the SPPA.

36. One of the Crown's arguments in response is that section 16.1 of the SPPA only deals with "procedural" powers, only granting tribunals the authority to make interim orders of a "procedural" or "process" nature. This argument replicates the Crown's argument as to the meaning of the word "procedural" in section 98 of the Act.

37. However, the word "procedural" is not found in section 16.1 of the SPPA, and as with the Labour Relations Act, 1995, there are found elsewhere in the SPPA specific "process" powers. To read the unrestricted "interim" power in section 16.1 as so limited would render the section largely redundant. As well, section 16.1(2) empowers a tribunal to "impose conditions on an interim decision or order". It appears even less likely that the "interim orders" envisaged in section 16.1 were only of a "process" nature, given this explicit power to attach conditions to such orders. This linkage suggests orders of a more significant nature than merely running a hearing. We note also that section 16.1 authorizes the making of interim "decisions", not only "orders", further buttressing the argument that a tribunal can make substantive decisions on an interim basis under section 16.1.

38. On balance, it appears to us that section 16.1 of the SPPA gives jurisdiction to tribunals, including this one, to make decisions or orders on an interim basis that relate to or derive from the tribunal's general or overall jurisdiction. Provided the tribunal acts generally within its jurisdiction, it has a largely unfettered discretion to make interim "decisions or orders" that it has the jurisdiction to make on a final basis, after a hearing on the merits, or that it considers necessary in order to ensure that the statutory rights it deals with are protected until a final decision issues.

Reconciling section 98 of the Act and section 16.1 of the SPPA

38. Given this conclusion, the Board's powers granted under section 16.1 of the SPPA would appear inconsistent with the far more restrictive interim powers granted under section 98 of the Act. The two cannot stand together, and do not merely overlap. The former grants a general jurisdiction to grant interim orders, while the latter grants the authority to make interim orders that deal with the conduct of the proceeding only.

39. Since there is an inconsistency between the two statutory provisions, we must have resort to section 32 of the SPPA, the override provision. While the application of that section does not depend on awareness of its content, it must be taken that the Legislature was fully cognizant of the SPPA and its override provisions, since it explicitly exempted the application of the SPPA in section 110(21) of the Act. The Legislature did not, however, direct that the provisions of section 98 of the Act were to apply despite the SPPA. Under section 32 of that Act, therefore, the provisions of the SPPA (here, section 16.1) prevail over the provisions of the Labour Relations Act, 1995 (section 98), since the two provisions conflict.

40. We conclude in the result that the Board has a general power to grant interim orders, as long as the orders are within or relate to the Board's general jurisdiction.

The Board's Approach to Considering Interim Orders or Decisions

41. We must now consider the issue of the approach to bring to questions of interim relief under section 16.1 of the SPPA.

42. To answer this, it is helpful to describe the approach that the Board took to dealing with interim relief up until the legislative amendments. Generally speaking, the Board began by adopting a two-step approach, first assessing whether the application set out an arguable case for the relief requested, and if so, balancing the harm that would result from granting the relief requested against the harm that would flow if the relief was not granted. (see, for example, Loeb Highland, [1993] OLRB Rep. Mar 197; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019; Vistamere Retirement Resi­dence, [1994] OLRB Rep. Sept. 1274.) That approach derived from the statutory context, as it is the statutory mandate which guides all Board administrative and adjudicative decisions. The Board looked to the rights and obligations in its constituent statute (then Bill 40), and was guided and directed by the charge placed upon it by the Legislature.

43. As the Board gained more experience in dealing with applications for interim relief, as it confronted more factual contexts in which such relief was sought, it became apparent that there were many factors that the Board ought to, and did, consider in determining whether to issue relief. Factors that were significant included the delay in filing the application (for example: Morrison Meat Packers Ltd. [1993] OLRB Rep. Apr. 358), the stage of the relationship or the underlying dispute (Fort Erie Duty Free Shoppe Inc. [1993] OLRB Rep. Dec. 1307), the nature of the particular work site or sector and a consideration of how the relative harm to the parties will impact in the specific context (Price Club [1993] OLRB Rep. July 635), and whether granting an interim order would have, in the circumstances, effectively determined the substantive issues between the parties (Fort Erie Duty Free Shoppe, supra).

44. As can be seen, Loeb Highland represented the beginning of an evolutionary approach that still continues. As the Board phrased it in Ombudsman Ontario [1994] OLRB Rep. July 885:

45. 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.

46. 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?

47. 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-discharge" 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 not 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.

(And see Westbury Howard Johnson Hotel [1994] OLRB Rep. Aug. 1166 where the Board also assessed the relative merits of the parties' positions and arguments, and not only whether the applicant had pleaded an arguable case.)

45. It is difficult to attempt to list the myriad factors that the Board considers when dealing with applications for interim relief, for one can fairly describe the approach as an attempt to take into account all the relevant circumstances, including, as Ombudsman indicates, the interests of the responding party. Those circumstances include a consideration of the nature of the specific remedy sought, and the fact that an interim order is an extraordinary remedy and ought not to be granted without consideration for the appropriateness of granting such relief before a hearing on the merits. Interim intervention in a bargaining relationship, or a potential one, may itself bring negative consequences for the relationship between the parties. Thus, the Board on occasion has dealt with applications of this nature by deferring consideration of the interim application and scheduling the merits to be heard in an expedited fashion.

46. Should this approach be changed now? Should the Board adopt an approach different in nature because we now exercise our power under the SPPA, and because of the restriction contained within section 98(2) of the Act'?

47. Turning first to the effect of section 98(2) of the Act (which as noted above, has not affected the Board's jurisdiction), the short answer is that the question of whether the Board ought ever to reinstate an employee to employment on an interim basis does not fall to be resolved in the instant case. No discharges are part of the factual context before the Board, and resolution of this difficult issue is best left to a case in which it arises, where the parties before the Board will have full opportunity to argue the point, and where the Board will have the benefit of a context in which to assess how best to respect the legislative intention expressed in both statutes.

48. Where discharges and reinstatement requests are not in issue, should the Board continue with the approach begun in Loeb Highland? The approach that the Board has heretofore adopted did arise under a different statutory context, the Labour Relations Act as it then was, and was developed with deference to and derivation from that statutory regime. That statute has now changed in some fundamental respects. And the power we exercise in this area, beyond orders dealing with the conduct of the proceeding, is now founded on a jurisdiction granted under a statute of general application.

49. Nevertheless, we consider it appropriate to exercise our jurisdiction in this area in a manner similar to the the approach previously utilized by the Board. Although our authority now derives from a statute of general application, the general interim power granted to the Board, and other tribunals, through the SPPA, is in our view a plenary authority to make interim orders that are related to the tribunal's constituent statute, and the rights, obligations and duties contained therein.

50. The SPPA does not give a tribunal a general inherent power to make interim orders of any nature and for any purpose. It gives an interim power that is not defined within the SPPA, but which must be exercised in a manner responsive to and with a view towards the purpose, function and powers of the tribunal in question, as defined by the statutory enactment setting up or regulating the tribunal. It is still to the Labour Relations Act (now the new Act) that the Board must look to give it guidance as to how it ought to exercise any interim relief powers that it might have. This remains true where the power itself is granted elsewhere. The defining of and the parameters of that power reside in the Labour Relations Act, 1995.

51. When we look to the Act, many of the statutory rights that led the Board to develop its previous approach to the exercise of its interim powers still exist. The section numbers may have changed, but there still remains, for example, the right of employees to exercise their rights under the Act, and employee rights continue to include the right to support or oppose a union, to join or not to join a union, to be active or be passive in the determination of the issues, and to be free from undue influence in the exercise of their rights. Unions still enjoy the right to seek to represent employees, free from any unlawful interference by an employer, or others acting on its behalf and employers still enjoy the rights they enjoyed before the new Act; for example, the right to deal with the exclusive bargaining agent, or the right to insist on no work stoppages during the tenure of the collective agreement.

52. The similar statutory context leads the Board to conclude that a similar approach to dealing with interim relief is appropriate, one that finds substance from the rights contained in the Act, one of continuing development and refinement, and one which continues to recognize the extraordinary nature of interim relief, and the caution with which the Board must approach remedial relief in this area. The Board will remain cognizant of the potential for abuse, and remain aware that interim relief will often be a second-best alternative to a hearing on the merits. But where exercised with sensitivity, it is a power and approach that has served the community well, both union and employer.

53. For example, in New Dominion Stores, [1993] OLRB Rep. Aug. 783, the Board had to deal with competing claims by two trade unions with respect to bargaining rights in respect of over 200 different employers in the retail grocery industry. This dispute between the two unions arose in the context of a merger between two unions, which was contested by a rival union. The two resulting unions then engaged in a war of sorts as to who ought to have the bargaining rights with respect to a large number of stores across the province, involving a considerable number of employers.

54. It was apparent that some considerable time would pass before a decision could issue determining which union held bargaining rights for which employees. Throughout this time, neither the employers, the two unions, nor the employees at any of the stores could have reliably known which union was their bargaining agent. This would have effectively prevented all participants from dealing with each other in any meaningful fashion, and from exercising the rights that some or all of them might have enjoyed under the Act, because the scheme of the Act is premised on there being a single exclusive bargaining agent. The Board granted interim relief which preserved the status quo at the time; that is, particular employers were required to deal with whichever union they had been dealing with prior to the eruption of this dispute. The net effect was that rights and obligations under the Act continued until such time as the Board could deal with the application on the merits. While the interim orders made in that case issued under Bill 40, they provide an example of both the merit of the Board's approach and of orders that could, in our view, still appropriately be made.

Whether to grant Interim Relief here

55. Should the interim relief requested here be granted? We begin with the observation that, but for the consent of the parties, it is not apparent that this Board would have jurisdiction to deal with this type of application on the merits. As noted by the Crown, the question before the Board in the main application is whether the individuals in dispute are excluded from coverage by CECBA. The application does not raise the question of whether a particular person is a "employee" under the Act or not. Section 114(2) of the Act is said to give the Board jurisdiction, but it is limited to this latter question (with respect to the issues here).

56. At the same time, the Crown concedes that the Board can and should deal with this matter on the merits, and although it takes the contrary position with respect to the granting of interim relief, we recognize that with a little artful creativity, this matter could have come before us in a form that would give us unquestionable jurisdiction. However, in the result, we need not base our decision in any respect on this point.

57. When we consider the merits of the parties' positions, it seems likely that some of the people or positions in dispute might well be excluded at the end of the day, as asserted by the Crown. Similarly, some will likely be found to not fall within the new CECBA exclusions. Any interim order might therefore deprive employees of significant statutory rights they enjoy. Employees covered by CECBA and the Labour Relations Act, 1995 have the "right to strike", those excluded do not. Were we to grant the interim relief sought by OPSEU, and through an interim order direct that individuals claimed by the Crown to already be excluded by operation of law are not to be excluded pending a Board decision on the merits, the effect of our order would be to continue to place those employees in a position where the provisions of CECBA applied to them, and where they would be entitled to strike, and subject to the pressures and consequences of being in the bargaining unit. If they were ultimately excluded, our order would directly and irretrievably deny their statutory rights. The converse is also true. If through interim relief we exclude these employees (or more accurately, uphold their exclusion by operation of law), but they should properly never have been excluded, we would be depriving them of their right to vote, and if duly authorized, to strike. The harm that might result from any interim order is irreparable, and it is difficult to estimate whether the harm will be greater or less if interim relief is granted or not.

58. There were other examples of harm asserted by OPSEU, but such harm appears fully correctable once the result in the main application is known. The Crown undertook to fully compensate all employees found to be covered by CECBA, who had been improperly excluded, and to make full redress, so that those employees would be in the same position as if they had always been included. Any wage differentials, job postings or classification changes, and so on, can later be amended to fully reflect the eventual adjudicated result.

59. Of significance are the specific legislative provisions at issue. Under Bill 7, as of February 8, 1996, all persons falling within, for example, section 1.1(3)14 of CECBA, were deemed excluded. If we were to grant interim relief preventing the Crown from treating any of these individuals as excluded until such time as the application on the merits was heard, and any of them were subsequently determined to have properly been excluded (which, as noted, we consider not unlikely), through our interim power we would have effectively nullified the effect of section 67(2) of Bill 7.

60. Ultimately, there was one factor which we found compelling in deciding not to grant interim relief: OPSEU's stated inability to commence an adjudication on the merits for some considerable period. On January 11, 1996, OPSEU received a list of employees from the government of those employees that the government concluded ought to be excluded pursuant to the new amendments. This application was filed on January 25, 1996. At the hearing on the interim application, the Board indicated that it was prepared to deal with the merits through expedited scheduling, and it inquired of the parties when they might be able to proceed on the merits. Given the importance of the rights at issue, the imminence of any strike, and the problems with dealing with such disputes through interim relief, special resources devoted to adjudication on the merits made some sense.

61. The Crown indicated it could be prepared to proceed on the ffierits within two weeks. OPSEU indicated it could not begin to have the Board deal with the merits of the application for at least two months. While preparation for litigation would be extensive, given the number and variety of disputed positions, it still seemed to the Board that the time necessary should have been considerably less than two months. We concluded that OPSEU preferred to have the matter dealt with on an interim basis, rather than on the merits. OPSEU's unwillingness to have the matter heard on the merits in an expeditious fashion, without reasonable excuse, alone led the Board to conclude that no interim relief ought to be granted in the circumstances.

62. For all these reasons, the Board issued the decision that it did on February 5, 1996.

DECISION OF BOARD MEMBER R. W. PIRRIE; October 7, 1996

1. I concur with the decision not to grant the interim relief sought by OPSEU for the reasons set out in paragraphs 60 and 61 above.

2. That said, I must distance myself from the balance of the reasoning in this decision.

3. The effect of Bill 7 was to return the Province's labour relations legislation to what it had been prior to the NDP Government having enacted in Bill 40. It eliminated all of those provisions which the newly elected conservative government felt tilted the balance of power in favour of trade unions and away from employers. At the same time it attempted to empower employees in the process. There can be no question as to the government's intention with respect to interim orders. It was to limit, and indeed to curb the granting of interim orders by the Board.

4. At paragraph 26 above, the majority of the panel acknowledges that indeed section 98 of the Labour Relations Act does limit the Board to granting interim orders in procedural matters only. The majority, however, then goes on to find that through section 16.1 of the SPPA, the OLRB in fact retains its power to make interim orders which go beyond procedural matters.

5. My first difficulty is with the notion that the Board can use the SPPA, which in its entirety is given over to procedural matters, as an avenue to reclaim the jurisdiction to make non-procedural interim orders.

6. My second difficulty is that the majority at paragraph 50 above takes that jurisdiction by reference back to the Labour Relations Act, but in doing so totally ignores section 98 of that very Act, which speaks directly to its jurisdiction vis-a-vis interim orders.

7. It may be the case that in order to have certainty, the drafters of Bill 7 should have exempted section 98 of the Labour Relations Act from the SPPA. Indeed, in order to have absolute certainty, the drafters of the legislation should have removed section 16.1 from the SPPA entirely. That said, there is no doubt in my mind as to the legislation's intention regarding the scope of the Board's authority in granting interim orders, and I find this decision wrong in its reasoning and excessive in the extreme.

8. In conclusion I add the following comments by way of obiter. The majority of this panel, and more correctly in this instance the alternate chair of the Board, having made this precedent ruling that the Board has the jurisdiction to grant interim orders beyond mere procedural matters, goes on to discuss the approach the Board should use, vis-a-vis, section 16.1 of the SPPA. He reviews the approach the Board took under the Bill 40 interim order provision. I find it interesting that these comments lean heavily on what might be termed the more thoughtful rulings and reasoning about the use of interim orders during the Bill 40 period. That said, it is my view that no matter how well-intentioned some of the authors of the Board's Bill 40 jurisprudence may have been, the major thrust of that jurisprudence, and the process which accompanied it, was blatantly biased against the employers.

9. In my opinion, paragraph 52 above is almost a dream wish. The author starts by suggesting for the Board a similar approach to dealing with interim relief as was utilized under Bill 40. He uses terms such as the continued recognition of interim relief as an extraordinary measure, the need to remain cognizant of the potential for abuse, that interim relief will often be a second-best alternative to a merits hearing, that with the exercise of sensitivity, interim relief has the power to serve the community well, both union and employer.

10. I know both the current alternate chair and I were at the Board throughout the Bill 40 period. I can only say that my experience was that the interim relief provisions of the Act were never viewed by the majority of the Board, and more particularly, the overwhelming majority of the vice-chairs and the then chair, as anything but a very ordinary measure, that there was blatant abuse of the process which was never corrected, that interim relief was seldom denied in lieu of a merits hearing, and that sensitivity in granting interim relief was not a hallmark of the jurisprudence. I cannot recall many cases in my Bill 40 experience where the employer was well served by a Board's interim order. It is precisely for these reasons that the current government took the Board's interim order power away from it. Had the Board acted more judiciously in the exercise of its interim order authority, had the Board truly approached the authority as suggested in paragraph 52, it might well have retained its authority legitimately through the current Labour Relations Act.

11. I would have no reason to believe that the vice-chairs who were at the Board during the Bill 40 era, and who are still at the Board, will take any different approach to interim orders under the SPPA than was done under Bill 40.

12. Lastly, I note the majority at paragraph 47 does not deal with the reinstatement issue. If as the majority have decided, the Board derives its authority to grant interim orders beyond procedural matters from the SPPA, and so decides in the face of section 98(1) of the Labour Relations Act, it follows that that authority must extend to reinstatement. If the Board is going to ignore the legislative direction in section 98(1) it is going to ignore the direction in section 98(2).