International Association of Machinists and Aerospace Workers v. R-Theta Inc., 1997 CanLII 15535

International Association of Machinists and Aerospace Workers v. R-Theta Inc.

[1997] OLRB REP. JANUARY/FEBRUARY 116

0899-96-R International Association of Machinists and Aerospace Workers, Applicant v. R-Theta Inc., Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W Pirrie and K. S. Brennan.

APPEARANCES: Jeffrey Sack for the applicant; Timothy P. Liznick for the responding party.

DECISION OF THE BOARD; February 14, 1997

1This is an application for certification. A representation vote has been held, with the union receiving more than 50% of the 65 votes cast. This decision deals with the employer's request that the vote results not determine the matter.

2A related application under section 1(4) has been adjourned pending the outcome of this matter.

3Employer counsel argued three issues, in the alternative, which will be set out below and dealt with in turn. The union argues that even accepting the facts pleaded as true, there is no prima facie case for the remedies requested by the employer. The issues before us are the following:

1. That the 40% support necessary to warrant a representation vote in a certification application should have been determined using the actual number in the proposed unit, rather than the number given by the applicant.

2. That the Board should grant a declaration of fraud under section 64, because, prior to the application, the applicant was made aware of the number of employees in the bargaining unit proposed, and that the number was increasing as a result of a need to expand. Nonetheless, the applicant registered a lower number in its application.

3. That there has been a denial of employee rights under section 15 of The Canadian Charter of Rights and Freedoms, in that an employee in the proposed bargaining unit who speaks Gujarati misunderstood the ballot since it was not in her own language, and misrecorded her vote. The Attorney General was given notice of this issue prior to the hearing, but indicated his office would not be intervening at this stage.

The 40% issue

4The issue raised by the employer as to the manner in which the 40% requirement in section 8(2) of the Act should be calculated is not new. The issue, and the arguments made before us, were raised and disposed of on the basis of a different interpretation than the one proposed by the employer in this case in two recent decisions of this Board, Burns International Security' Services Limited, [1996] OLRB Rep. March/April 192 and The City' of Toronto, [1996] OLRB Rep. July/Aug. 552, application for judicial review dismissed January 30, 1997, Divisional Court File 508/96. Essentially, the employer disagrees with the reasoning in those cases, and the union submits that we should follow that reasoning.

5Employer counsel observes that all the things that the Board used to use, prior to Bill 7, to determine who was actually in the bargaining unit, such as a list of employees, specimen signatures, and the like, were not in the statute, whether Bill 40, or its previous form. Rather, the Board developed these things as a matter of practice in order to be able to make the determination which the statute of the day required. It is said that the same elements are in section 8(2) of the Act, and that in refusing to make the determination of the number of people in the proposed bargaining unit, the Board is declining jurisdiction.

6As to the practicalities of making the determinations that the employer argues for in the context of a five day vote, counsel says it is "dead simple": the Board should determine a voter's list, with the benefit of the doubt going to the union. Whatever they say is the appropriate bargaining unit should be used to measure how many people are in the bargaining unit. If they say certain people should be included they go in, if not they are out. The essence of the employer argument is that if there is to) be faith in the process, there has to be an open adjudication as to the numbers in the bargaining unit prior to the vote.

7For the reasons set out in The City of Toronto, cited above with which the majority of this panel, Mr. Pirrie dissenting on this point, are in agreement, we are of the view that it was appropriate for the Board to base its assessment of the 40% threshold in section 8(2) of the Act on the material provided by the applicant. We disagree with employer counsel that it is a declining of jurisdiction to proceed in that manner. Rather, we think it is the correct reading of the statute as a whole, and consistent with the legislative intention in bringing in a system based on quick votes. Further, the practicalities are such that the litigation of the number of people in the bargaining unit prior to a vote would make the five day vote impossible to obtain. It would apply then only in cases of agreement, which does not appear to have been the intention of the legislature in redoing the basis for certification to that of a quick vote. Moreover, despite the arguments of counsel as to the simplicity of a system where the adjudication of the bargaining unit could be done on the basis of the benefit of the doubt going to the union, that approach is unlikely to produce a satisfactory result, either as to accuracy or acceptability to the employer community at large.

8Nor do we think the matter is to be litigated on the basis suggested after the vote. The matter is succinctly put in paragraph 138 of The City of Toronto, as follows:

138. Had the Legislature intended some ex post facto determination of actual 40 per cent card support, as opposed to an appearance of 40 per cent support, the Legislature could have reproduced language such as section 9(4) of the old pre-hearing vote procedure. However, when one compares the language of the current statute to the language of section 9 of the old Act, it is evident that the Act used to, could have, but now does not make a finding of actual support at any level (as opposed to the appearance of support) a condition precedent to certification. The structure of Bill 7 does not envisage later litigation about, or confirmation of, the section 8(2) decision. Nor, as we have already mentioned, is "front end litigation" practically feasible in 5 days, or seemingly permitted by section 8(4).

The fraud issue

9The facts pleaded in regards to fraud are as follows. There was a meeting with a Labour Relations Officer in regards to a related application under section 1(4) of the Act, about five weeks before the application date. At that meeting, union counsel asked how many people were in the bargaining unit, and a representative of the company advised the union that as of that date there were 64 persons in the bargaining unit, and that the company was continuing to hire more people into the bargaining unit. The number recorded in the application was 57.

10As well, it is common ground that there was a recent move by the employer to the location which is the subject of this application and that the applicant had bargaining rights for the previous location. The employer submitted in argument that the union was in receipt of a list of people for whom dues were remitted at the previous location which shows that for the most recent month available prior to the certification application, there were 61 people in the bargaining unit. Employees at the previous location were guaranteed employment at the new location and none declined. The applicant says that it was not actually in receipt of that list, but for the purposes of this preliminary matter, we have accepted the employer's asserted facts.

11The number given by the union in its application was 57, less than either of the numbers referred to above. The number of cards submitted by the applicant was 25, which represents more than 40% of 57, the number the union gave in the application, and of 61, the number on the dues remittance list, but less than 40% of 64, the number given by the employer in the five weeks before the application date, and also less than 40% of 65, the number eventually agreed on for the voters list.

12On the basis of those facts, the employer says that the applicant was fully aware that the bargaining unit was composed of more than 64 employees, but nonetheless provided 57 as the number in its application. We are urged to conclude that the applicant was consciously misleading the Board, and that we should make a declaration of fraud under section 64. The employer says there is no reasonable explanation for the union's having given the lower number, after they had been clearly told that the forecast was for rising numbers, except that they only had 25 cards. In these circumstances, employer counsel submits that offering the number 57 on the application amounts to the gerrymandering of which the Board warned in Burns Security' cited above. Employer counsel says that f'raud includes recklessness or carelessness as to whether something is true or false. He says that the union should have to respond at least on the question of recklessness, even accepting the union's assertion that it did not check the dues list. At the very least, submits counsel, the Board is in the position of having an apparent misrepresentation on the face of the A-4, and no explanation from the union. The parties should be held to a due diligence standard, and the union should be required to explain its conduct. Especially if the Board is going to maintain the approach taken in The City' of Toronto, where the union's numbers are going to determine whether a vote is held, the union must be held to the strictest standards of honesty and due diligence. And it is submitted that any comments about fraud in The City of Toronto decision are obiter and not binding.

13Although employer counsel argued the prima facie case on the threshold of recklessness, he submits that "there may be more to it", and therefore he has asked the Board to compare the cards with the list of employees to see it' there are any discrepancies. Employer counsel argues that because of section 64(2), The Board is not restricted by section 7(13), and can look at more than just the information provided by the applicant. When asked to particularize his allegation about the membership evidence by union counsel, employer counsel said he was not in a position to so because he did not know what evidence had been submitted, but that it would be a simple proposition to) compare the signatures and appoint a Labour Relations Officer.

14As to whether the Board ought to conduct an inquiry every time there was a difference between the numbers in the application and response, employer counsel said it would not be every time, but in circumstances such as these where the union was clearly told the number of employees in the proposed bargaining unit.

15Employer counsel says that the honour system is not much good if there is no down side to not being honourable. He asserts that this case is the fact situation that The City of Toronto, cited above, said would not happen: intentional misrepresentation of the numbers in order to get a vote. Counsel says that reasoning gives an incentive to any union whose membership evidence is getting stale to give a number that shows 40% and then "roll the dice" to see what they can get out of a vote.

16We are asked to declare that the applicant breached the statute and does not represent the employees in the proposed bargaining unit. Where there is no demonstration of 40% support, the Board has no discretion to order a vote, and therefore the vote held here should be considered void ab initio, and should not affect the result in this case.

17Further, it is said, there should be no difficulty in considering the fraud question before a certificate is granted. Otherwise, the Board would be requiring the parties to return. One could take the view, counsel submits, that "but for" the allegations, a certificate would issue, and/or that one could notionally issue the certificate and revoke it for fraud. In any event, at least section 64(2)(a) does apply. Applying that section, counsel asks for a review of all the membership evidence by the Board.

18In summary employer counsel argues that, given the seriousness of the fraud allegations, we are entitled to) hear the union's explanation through viva voce evidence on behalf of whomever made inquires about the numbers in the bargaining unit.

19Counsel for the union submits that the facts as pleaded do not make out a case for fraud, but rather a case where the union and the employer have provided different numbers in their pleadings, as in Burns and The City of Toronto cases, cited above. The union argues that firstly, section 64 does not apply on its face because no certificate has been obtained, but in any event the facts pleaded do not amount to deliberate misrepresentation or reckless disregard for the facts, the definition of fraud set out in Edward R. Kanrowicz, [1976] OLRB Rep Aug. 450 at para. 10, quoting from Den-y v. Peek, (1889) lr A.C. 337 at p. 374.

20Further this is not the kind of case of which Burns warned, asserts union counsel. This is at best error at the margins; the pleaded facts do not show an attempt to mislead. Union counsel also refers to Ontario Taxi, [1981] OLRB Rep. Sept. 1280 for the proposition that even where fraud is established, which is denied here, it does not necessarily mean a certificate will be withdrawn.

21Further, counsel underlines that, in reference to the provision of the lower number in the form A-4, which verifies the membership evidence submitted, that form only asks for the number the union believes to be in the unit and does not require the union to be correct. More fundamentally, union counsel argues that neither inaccuracy, nor due diligence, are the test for fraud on the Board. The union submits that the Board's jurisprudence indicates that the fraud it has been concerned about is fraud in acquiring membership evidence. As the allegation before the Board has nothing to do with the the collection of the membership evidence, the Board should not be concerned about it. In this respect, counsel refers to the remarks about fraud at paragraphs 141 and ff. of The City of Toronto, and asserts they are not obiter. Rather, the union asserts they are part of the reasons the Board gives as to why they prefer the interpretation given to the Act in that decision. Union counsel argues that this case illustrates the wisdom of the interpretation given in The City of Toronto, and predicts the Board would be tied up in fraud litigation all the time if this is allowed to go forward. As that case pointed out, 5 day votes would be impossible if one inquired into such issues; that is why section 8(9) is there, submits union counsel - that there will be no cases where fraud is not alleged.

22Further, although the union submits it can explain how it arrived at the number it put in the application in a reasoned manner, counsel argues that there is no reason that the union should have to accept the employer's numbers. The union is asked on the application for its estimate, and there is no reason why the union should accept or do anything in particular with the employer's estimate. Further, union counsel observes that the number is clearly fluctuating even on the employer's estimates. It is 65 in the response; it was 61 in the dues remittance sheets, and 64 in the meeting a month before the application. The 25 cards represent 40% of the employers' number 61 on the dues sheet.

23In any event, union counsel argues that the employer's case is inconsistent with the reasoning in The City of Toronto, that the ultimate matter of concern should be the vote. There are sanctions provided in the Act for misrepresentation, such as a bar for a year. It urges the Board to maintain the position that the initial determination of 40% is an administrative matter, that any errors in the numbers will be cured in the vote.

24As a factual matter, counsel observes that this is the extraordinary case in which every single person in the bargaining unit voted; the wishes of everyone have been tested. Knowing the union's estimate of numbers, the employer still insisted that the vote be counted, and the union withdrew its objection at the end. The employer had an obligation to indicate an objection to the counting of the vote in the union's submission.

The relevant provisions are as follows:

7. (12) The application for certification shall include a written description of the proposed bar­gaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members. but the trade union shall not give this information to the employer.

8. (1) Upon receiving an application for certification, the Board may determine the voting constitu­ency to be used for a representation vote and in doing so shall take into account.

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individu­als in the voting constituency.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays. Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

10. (I) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.

11. (1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

12. An employer, employers' organization or person acting on behalf of an em­ployer or employers' organization has contravened the Act.

13. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

14. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

15. The trade union has membership support adequate for the purposes of collec­tive bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

(3) The Board may consider the results of a representation vote when making a decision under this section.

(4) Subsections 10(1) and (2) do not apply with respect to a representation vote taken in the circumstances described in this section.

64. (1) If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.

(2) Subsection 8(9) does not apply with respect to an application for a declaration under subsection (1).

(3) If an applicant has obtained a declaration under section 63 by fraud, the Board may at any time rescind the declaration. If the declaration is rescinded, the trade union is restored as the bargaining agent for the employees in the bargaining unit and any collective agreement that, but for the declaration, would have applied with respect to the employees becomes binding as if the declaration had not been made.

(4) Subsection 63(13) does not apply with respect to an application for the recession under subsection (3) of a declaration.

25We turn first to the issue of when fraud allegations should be dealt with under the provisions of Bill 7. The historical context is that under previous versions of the Act, fraud allegations were dealt with whenever they were raised. In particular, if they were relevant to entitlement to a certificate, the Board dealt with them prior to issuing a certificate. Fraud related to the membership evidence itself (non-signs or non-pays) or in relation to the form verifying it, depending on its nature and extent, could lead to the dismissal of an application, even if a majority of employees had expressed a desire for representation. As well, allegations of misrepresentation or a failure to make sufficient enquiries to be able to verify the reliability of the membership evidence were dealt with as relevant to whether the Board should rely on the evidence filed to determine the wishes of the employees, or entitlement to a representation vote. This was all framed by the fact that the system before Bill 7 was primarily a document based system, with the representation vote a residual mechanism where clear majority support was not demonstrated by the cards, or there was some doubt which the Board, in its discretion, could resolve through a representation vote.

26When Bill 7 was passed, the system was changed to one that is primarily vote based, although membership evidence is still essential for the entitlement to a vote (section 7(13)). And the statute gives quite specific directions about what information shall be relied on by the Board and at what stage in making its determinations. The system provides for a vote which is directed by the Board without holding a hearing (section 8(4)), based only on the information in the application for certifica­tion. That information relates to the appearance of membership of 40% of the employees in the bargaining unit proposed in the application and the accompanying membership evidence (sections 8(2) and (3)). If the Board considers it necessary in order to dispose of the application for certification, the Board may hold a hearing after the vote. However, in disposing of the application for certification, the Board is not permitted to consider any challenge to the membership evidence (section 8(9)).

27As always, the Board is required to determine the appropriate bargaining unit for the application (section (9)). Then as a result of the vote, the Board is required to certify a trade union if more than 50% of the ballots cast by employees in the bargaining unit have voted for the union (section 10).

28The combination of these legislative provisions describes a quick vote system for normal certification applications, where a hearing is not available prior to a vote being held. After the vote is held, a hearing is held only if the Board considers it necessary to dispose of the application. Even at this stage, litigation is restricted explicitly. The Board is not permitted to consider any challenge to the information provided under section 7(13), the names of union members and evidence as to their status as members. This is a significant change, as it was formerly the normal practice to dispose of challenges to the membership evidence before an application was determined. Now, the statute says the Board is not to do that.

29And section 10 is quite specific as to what shall be done with the vote results. If the union receives more than 50% of the votes cast by employees in the bargaining unit determined to be appropriate, the Board shall certify. And if the union does not receive that level of support, the application is dismissed with a bar. It is section 10 which determines what issues are necessary to deal with prior to disposing of a certification application. They are the identification of the employees voting as ones within the bargaining unit which has been determined to be appropriate, and the ascertainment of the count.

30The statute articulates certain exceptions to the "normal" route described above. These are in section II. The Board may certify without a vote where the employer has contravened the Act and the results of that are such that the true wishes of the employees are not likely to be ascertained, no other remedy will suffice, and the union has adequate support for collective bargaining. And the Board may dismiss an application where the union has contravened the Act such that the true wishes of the employees do not or could not be ascertained and no other remedy, including the taking of another vote is sufficient. When either of these situations occur, the Board is not bound by the requirements of section 10 as to granting or dismissing a certification application. The situations of illegality in section 11 are the only exceptions to the entitlement of a union to certification after winning a representation vo)te as set out in section 10.

31The question before us is as to the role of section 64 prior to the issuance of a certificate. Its position in the Act is in the grouping of sections 62 to 66 which are entitled "Termination of Bargaining Rights." The terms of subsections 64(1) and (2), which deal with certification applications, presuppose pre-existing bargaining rights which have been obtained by fraud. We are urged by employer counsel to find that there is no reason not to hear the fraud allegations prior to a certificate being granted, because otherwise, the parties will be required to return unnecessarily to litigate the matter later. The union argues that on its face the section does not apply, because no certificate has been obtained.

32The statutory wording is clear. A remedy in respect of a certificate under section 64 is only available after a certificate is obtained. But there is much to be said for the idea that it is preferable that such an issue be dealt with at the outset - if only because a new relationship between management and union is better started without such allegations lingering unresolved, one way or the other. Counsel proposed the device of a notional certificate to deal with any difficulty in hearing the matter before a certificate is granted. It appears to the Board that this problem can be dealt with where the allegations are raised in the course of the certification proceedings in a practical manner. Submissions and/or evidence may be entertained in whatever manner seems appropriate to the Board in controlling its own procedure as required by section 110(16). The Board may then determine the issues in the sequence contemplated by the statute, orally or on reserve, as appropriate in the circumstances. The Board often lists issues between the same parties together for practical reasons, even if one needs to be determined before another.

33On the facts of this case, the result of the vote and the agreement of the parties on the bargaining unit that is appropriate leaves the Board with all the elements to decide that the union is entitled to a certificate, and we so declare.

34Turning to the allegation before us, the facts pleaded indicate that about five weeks before the application was filed, the employer indicated that the number of employees in the proposed bargaining unit was 64, seven higher than what the union put in the application, and that hiring was going on. The number agreed to for the voters list was 65. Although the union may have a strong defence to this allegation, the majority of the panel, Ms. Brennan dissenting on this point is of the view that the company has a sufficiently arguable case that the matter should be relisted for hearing on the issue of whether the certificate was obtained by fraud.

35As to the suggestion that the Board should inquire into the membership evidence at large, there is no allegation that anyone for whom the union submitted a card did not sign a card. The Board does not normally inquire into membership evidence on unparticularized allegations and is not prepared to do so here. See, among others, The Mississauga Hospital, [1990] OLRB Rep. Dec. 1304.

36Employer counsel further asserted that the Board should, in the absence of fraud, be requiring due diligence in the estimates provided and a hearing should be held on this issue. This is not the standard set by the legislature. As set out above, the new scheme of the Act provides for certification on the winning of a vote, with the exception of cases of breaches of the Act (section 11) and 64 is available to deal with allegations of fraud. A hearing as to whether pleadings were filed with due diligence in every case where the other party does not agree with the filings would add a step to the process which would have the effect of derailing the legislature's intended system. We are thus not of the view that this matter should be put on for hearing to determine if the union exercised due diligence in providing its estimate.

The Charter issue

37The Board's notices and the ballots in this ease, as is its ordinary practice, were printed in English and French. It is common ground that a large majority of the employees in this workplace speak languages other than English or French. The employer offers the evidence of a Gujarati speaker who approached management after the vote to say that she mismarked her ballot because of her difficulties with English, and the evidence of its Human Resources Manager who will say that many of the employees did not understand the ballot. Further, the employer offers evidence about the linguistic background of its work force and the steps the employer usually takes to deal with it.

38Based on the above facts, it is argued that the Board's failure to provide notices other than in English and French has denied the employee concerned equal protection of the law, as she was discriminated against on the grounds of language. Language is said to be included in the enumerated grounds of race, national or ethnic origin in section 15(1), or to be an analogous ground. The categories of analogous grounds are not closed, as discussed in Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418. Employer counsel says that the provision of the notices only in English and French is per se discriminatory, because it does not take into account cultural differences, and resulted in the denial of her right to express her desires under the Labour Relations Act.

39Counsel said that the Charter may guarantee a right to be communicated with in the language of one's origin, but that it at least required the Board to make some inquiry towards providing equal benefit of the law as regards language.

40Various authorities are referred to for the underlying analysis, including: Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418, Law Society of British Columbia et at. v.Andrews et at. (1989), 1989 CanLII 2 (SCC), 56 D.L.R. (4th) 1 (S.C.C.), Mirek Gajecki v. Board of School Trustees, School District No. 36 (Surrey) (1990), 11 C.H.R.R. 32 (B.C.H.R.C.), Louise Welen v. Gladmer Developments Limited (1990), 11 C.H.R.R. 38 (Sask. H.R.C.), Victor Cornejo v. Opus Building Corporation (1991), 14 C.H.R.R. 25 (B.C.H.R.C.), Regina v. Qakes (1986), 1986 CanLII 46 (SCC), 26 D.L.R. (4th) 200 (S.C.C.), Re Signh and Minister of Employment and Immigration (1985), 1985 CanLII 65 (SCC), 17 D.L.R. (4th) 422 (S.C.C.).

41The relevant provisions of the Charter are as follows:

Rights and freedoms in Canada.

1. The Cattadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Equality before an under law and equal protection and benefit of law.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative actions programs.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvan­taged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

42The union argues firstly, that the employer has no standing to bring this application under the Charter, that only an employee is in a position to do so. See Transair (1976) 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 (5CC.). Secondly, it is submitted that the objection is untimely, as it was raised only when the employer lost the vote; the employer signed the certificate of conduct of election without raising the issue of the language in the workplace. It is said there was ample time for the employer to communicate this concern during the discussions to arrange the vote. The employer raised no concern about this before the vote notwithstanding the fact that it was clearly aware of the composition of its own workplace.

43More fundamentally, the union submits that communicating in English and French is not a denial of Charter Rights. The proposition that it is, submits the union, is one that has been rejected by both the Board and the courts. The union submits that this is not surprising since otherwise one would have to translate everything into as many languages as there were in any given workplace. It is argued that we are bound by the decision of the Court of Appeal in R. v. Crete, (1993)4 O.A.C. 399. The Court of Appeal said as follows in its brief judgement:

The appellant has limited his argument to section 15(1) of the Charter and says that there was discrimination in serving him with a notice in English which he, as a francophone, could not read. This is not a language issue; it is an argument that such notices must be capable of being read and understood by all recipients. Persons who are illiterate or unilingual in any one of a multitude of languages, other than English, are put to more trouble than an English-speaking person when receiving such a document. However, this is a difference which falls short of section IS discrimina­tion: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R. (4th) I. All government documents will inevitably be unreadable by some group of persons. It would be trivializing section IS to declare them all discriminatory and then, as the appellant would have it, turning to s. 1 to justify all except those which affect French-speaking unilinguals.

44As well, union counsel observes that it is proposed that only one employee is to be called as a witness. Given that the margin by which the union won the vote was three votes, even if her vote went the other way, the result would not have been affected.

45In reply, the employer argues that the board has, unintentionally, constructively denied the fundamental Charter right to be free of discrimination on ethnic grounds, and the effect of that has been to deny the employee the right to choose the applicant of their choice.

46The employer says that it is not necessarily incumbent on the Board to send out notices in all the languages of the workplace, but that it should ask on its application and response forms what the major language of the workplace is, and then it could translate the forms into what-ever language that was. It is said that this would not be "hugely administratively" difficult. Once translated, the forms would be available for all time, says counsel.

47As to the timeliness issue, employer counsel says it was not aware of this problem until after the vote when the employee approached a manager. Normally language is not a problem because the supervisors speak various languages of the employees.

48As to standing, the employer refers to Federated Building Maintenance, [1979] OLRB Rep. October 974 at para 9, arguing that the reason that the employer has standing in that case is because it has an interest in making sure it is not entering into a relationship based on fraud. It is submitted that it is the same for the Charter issue. If the right to freely express one's wishes for a bargaining agent is denied through a denial of a Charter right to equal treatment, that falls within the exception enunciated in Federated Building, submits counsel. That case stands for the proposition that it is the Board's overriding responsibility to see that the employees can freely represent their wishes. As the Charter is the fundamental law of the land, no administrative body can ignore the Charter, submits counsel.

49Further, counsel argues that this case is a bit different in that the employee did come forward to the employer about the fact that she misunderstood the question posed and had learned later that she had "gotten her answer wrong." And the employer submits it is no answer to the Charter challenge to say it involves only one employee; she is an example of how these employees were denied their right to equal treatment.

50Counsel argues that there is a prima facie case that there is a Charter right here, on an enumerated or analogous ground, together with conduct, whether or not intentional, which has violated that right. The effect of that violation was a denial of equal benefit of the law, submits counsel. With those elements established, it is submitted, the onus and focus shifts to justification of the limitation as a reasonable limit under section 1 of the Charter. Denial of communication in one's native language is a denial of the right to express the desire for or against union representation set out in sections 8(1) and 10(1) of the Labour Relations Act. The Board has an obligation to make sure all its communications are clear, argues counsel. The fact that the employee in question was treated like all the other employees is not an answer, because the impact on her is different; she received a diminished benefit of the law submits the employer. She should be on equal footing unless the limitation on her rights can be saved under section 1.

51Referring to the definition of discrimination in (i.e. Andrews v. Law Society of British Columbia) et al, (1989), 56 D.L.R. (4th), (S.C.C.), counsel says that all the points have been met to establish the Board's practice is discriminatory, and that the onus therefore shifts to section 1 justifica­tion. On this point, the employer's position is that no adequate justification exists; the justification of expedition and cost are insufficient and disproportional to the objective.

52Employer counsel says that a presumption that everyone speaks, understands English or can ascertain English has a discriminatory effect. In determining whether language is an analogous ground, the fundamental consideration will be whether the category or characteristic in question may serve as an irrelevant basis of exclusion and a denial of essential human dignity in the human rights tradition. It need not be necessarily immutable, as with marital status. It is submitted that language may be sufficiently difficult to change that it should be considered immutable in any event.

53As to) the fact that the employer signed the consent and waiver form which allowed the ballots to be counted, employer counsel says that the form only talks about the conduct of the balloting, and the employer was not aware of any problems at the time it signed. The Canadian Red Cross Society, [1994] OLRB Rep. November l592, relied on by the union, is distinguishable in the employer's submission as it dealt with circumstances were there were allegations during the balloting at the balloting place which the Board found ought to have been brought to the attention of the Board and the union prior to the counting of the ballots.

54The Board has held that a mistake in marking a ballot is not sufficient grounds to overturn a vote and that it will not look beyond the ballots to ascertain "what the voter really meant". See Children's Aid Society of the Regional Municipality of Waterloo, [1985] OLRB Rep. December 1818 and RSLS Inc., [1982] OLRB Rep. June 921. We agree with the principle enunciated there: to start inquiring into the subjective state of voters' minds would destroy the very confidentiality that a secret ballot vote is intended to) create and protect. Ballots are to be given the significance they have on their face. The question to be answered here is whether the result should be any different because the "mistake" in marking the ballot is said to be because of difficulties with the English language.

55The cosmopolitan nature of the Ontario work force means that language issues are not new to the Board. They arise from time to time, and the Board has consistently held that it is under no obligation to deal with employees in languages other than English or French, and relies on employees with difficulties in those languages to cope as they do) in any other aspect of their lives. See, for example. Admiral Linen Supply Limited, [1989] OLRB Rep. Feb. 90 and the cases cited therein, as well as North field Metal Products, [1989] OLRB Rep. Jan. 57.

56Before turning to our view o)f the Charter in this context, it is appropriate to note the breadth of what employer counsel is suggesting. It is his view that the Board is under an obligation to inquire of the majority language of every workplace with which it deals and then translate all its communica­tions into that language. This is not the practice of any public body of which we are aware nor was it suggested that it was. Neither federal nor provincial elections are conducted as he suggests. The Francophone community has been known to comment that it is difficult to obtain services even in the second official language of this country. It is asserted that what he asks is easily done; once translated, the forms would be available when needed. Even if the law were not subject to change on a regular basis, or budgets for even the services the Board has provided in the past not shrinking, this assertion does not appear to take into account the very large number of languages in the workplaces of Ontario, as well as the fact that the Board has to) communicate flexibly with its users and the forms are not the only, or necessarily the main, vehicle of communication. And it is just not administratively feasible to communicate in a plethora o)f languages within the time lines required of the Board by the Act with current resources. It is administratively difficult to get five day votes on even in English and French.

57But if the Charter required that we do so, we agree that the resources would have to be found. However, we are not o)f the view that the Charter requires us to do so. We are of the view that R. v. Crete, cited above, is binding on us and deals with the matter specifically. There the Court rejected the argument that a notice in English served on a Francophone who could not read was discriminatory and infringed the rights protected by section 15 of the Charter. See also R. v. Simard, (1995) 270 R. (3d) 116, which dealt with French language rights as independent rights and the right to an interpreter as an element of the right to) a fair trail, rather than as a right under section 15 of the Charter.

58We are offered no) authority for the proposition that Section 15 provides a positive right to translation of all Board material into the majority languages of all Ontario workplaces. The cases cited, which it is not necessary to analyze in detail here, do not stand for that proposition. Nor is this a question of denial of natural justice or of a lair hearing; persons needing interpretation during Board hearings may participate through an interpreter.

59Even taking the most broad construction of both the grounds in section 15, and the definition of discrimination, so that adverse effects of government action on the basis of ethnicity would be covered, we do not see that the Charter goes the distance to the result requested by employer counsel. We accept that some employees may not be able to read the Board notices without assistance. But we do not agree that this fact requires the conclusion that employees are receiving a diminished benefit of the Labour Relations Act on the basis of ethnicity or membership in any group described by a ground enumerated in section 15 or analogous thereto. It is not the fact of ethnicity or membership in an analogous group which is the basis for difficulty in reading the notice.

60The differences between individuals which may make it more or less difficult to understand a Board notice cover a huge gamut, including attention span, intelligence, literacy, attendance at work, participation in union activities which give familiarity with the subject, interest, and languages understood. These are so diverse as to escape definition as being a function of ethnicity. The Court in Andrews v. Law Society of B.C., cited above, said at pg. 18, (the majority agreeing with MacIntyre J., on this portion of his analysis) that distinctions based on personal characteristics attributed to an individual solely on the basis of an association with a group will rarely escape the charge of discrimina­tion, while those based on an individual's merits and capacities will rarely be so classed. In our view, the facts of this case are covered by the latter category, i.e. it is a function of an individual's capacity to understand official notices from a wide variety of causes, not membership in any ethnic group, which produces any difficulty in reading Board notices or ballots.

61We are also of the view that the employer does not have standing to complain of the violation of an individual employee's rights. There is nothing to suggest any reason why any affected employees could not have done so themselves, and it is the employees' individual Charter rights which are at issue here. See C.L.R.B. and Transair, cited above at pg. 438, where this issue is dealt with in the general labour law context. For the Charter context, see Canadian Council of Churches v. Canada, 1992 CanLII 116 (SCC), 88 D.L.R. (4th) 193.

62Further, and finally, having signed the waiver form concerning the conduct of the vote, the Board requires compelling circumstances, not present here, to inquire into the conduct of the vote.

63To summarize, we agree with the reasoning in The City of Toronto cited above as to the proper method for determining the 40% threshold for votes and are of the view that there is no reason to reconsider the decision ordering a vote in this case. Further, the results of the vote entitle the applicant to a certificate for the following bargaining unit:

all employees of R-Theta Inc. employed at 6620 Kestrel Road, in the City of Mississauga, save and except forepersons. persons above the rank of foreperson, office, clerical and technical employees and sales staff.

64The issue of whether the certificate was gained by fraud will be determined after a hearing for the purpose of the presentation of evidence on that issue, to be scheduled by the Registrar as soon as possible in consultation with the parties. This is not an undertaking that the matter will be scheduled on consent, but only an indication that the Board will canvass the parties before fixing a date.

65Finally, we find no denial of Charter rights in the fact that the Board provided notices and ballots in English and French, and not in the other languages of this workplace.

DECISION OF BOARD MEMBER, R. W. PIRRIE: February 14, 1997

1. As noted at paragraph 7, this is a majority decision with respect to "The 40% Issue". I respectfully dissent from all of the reasoning in this and other Board decisions with regard to this subject. In as much as the majority's position is rooted in The City of Toronto case, I can do no better than refer readers to the very able dissent in that case written by Board Member Judith Rundle.

2. For the reasons set out above, I concur with the decision with respect to "The Charter Issue". I also agree that the company has an arguable case with respect to "The Fraud Issue" and that that matter should be heard.