Susan Wolframe, Carole Fawcett and Ethel Kemp v. Hill's Greenhouses Ltd., 1997 CanLII 15564

[1997] OLRB REP. MAY/JUNE 442

Parties and File Numbers

2123-96-U; 3529-96-U Susan Wolframe, Carole Fawcett and Ethel Kemp, Applicants v. Hill's Greenhouses Ltd., Responding Party

Before

BEFORE: M. A. Nairn, Vice-Chair.

Appearances

APPEARANCES: Sean Fitzpatrick for the applicants, Donald Shanks for the responding party.

Decision of the Board

DECISION OF THE BOARD; May 5, 1997

1. Board File Nos. 2123-96-U and 3529-96-U are applications filed pursuant to section 96 of the Labour Relations Act. 1995 (the "Act") alleging that the responding party (the "employer" or "Hill's") has violated sections 72, 76, and 87 of the Act. At the outset of the hearing the employer took the position that the applicants were persons employed in horticulture and, pursuant to section 3(c) of the Act, the Board was without jurisdiction to entertain the applications, as the Act did not apply to them. The applicants took the position that they were persons employed in silviculture and were therefore covered by the provisions of the Act. I heard the parties' evidence and representations on the issue. This decision deals with that dispute.

2. Section 3 (b) and (c) of the Act provide:

3. This Act does not apply.

(b) to a person employed in agriculture, hunting or trapping;

(c) to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture.

3. Subsection 3(c) was first enacted in the statute in 1960 (then subsection 2(c)). Prior to that time subsection 3(b) had excluded "agriculture", "hunting", "trapping", and "horticulture". "Horticul­ture" was not qualified by any reference to "silviculture" or "municipal employees". In 1960 subsection 3(c) introduced the specific reference to "horticulture" and "silviculture" and has continued in that form since. I note that the passage and subsequent repeal of the Agricultural Labour Relations Act, 1994 did not affect persons employed in silviculture. That Act did apply to persons employed in horticulture.

4. There is no dispute that if these applicants are employed in silviculture then the Act applies to them. Conversely, it is also agreed that if they are employed in horticulture, but not silviculture, the Act does not apply to them. The issue is what is meant by the word "silviculture" in subsection 3(c) of the Act.

5. Hill's Greenhouses Ltd. is a tree seedling nursery. While it also grows some poinsettias for the Christmas market and distributes and retails bedding and pot plants and some flowers, that work represents a small proportion of the business. Hill's receives orders and the seed from a license-holder for a particular forest stand, generally a forestry company such as Abitibi-Price, for tree seedlings to be used in the management and reforestation of the forest stand. Any forest management plan is regulated by the Crown Forest Sustainability Act. Hill's business is the planting and growing in containerized lots of various species of trees seedlings to specified heights and diameters. Hill's has the knowledge to germinate, feed, thin, and harden the seedling and to monitor it for growth or disease. The specifications for the seedlings come from a Forest Operation Prescription or the silviculturist according to the site and the forest management objectives. The forestry company or other licence owner provides Hill's with, essentially, a custom order for tree seedlings to be grown and ready for planting in either one (usually) or two seasons. Hill's involvement ends with the delivery or pick-up of the tree seedlings to or by that customer. The customer is responsible for contracting for tree planting.

6. The sign at the entrance to Hill's identifies it as a silvicultural grower of trees. It provides in the range of eight million evergreen tree seedlings per year. In 1995 the IWA-Canada, Local 2693 sought and obtained bargaining rights on behalf of Hill's employees pursuant to the provisions of the Labour Relations Act. The decision dated July 24, 1995 certifying the trade union ([1995] OLRB Rep. July 970) notes that Hill's had originally maintained that one employee should be excluded on the basis that she was employed in horticulture. That objection was withdrawn and the decision also notes that the parties were agreed that the employees affected were employed in silviculture. Those bargaining rights were subsequently terminated in September, 1996 and these applications allege that the applicants have been subject to discriminatory treatment and reprisals as a result of their support for the trade union.

7. I heard evidence from Mr. H. Bax, a registered forester and silviculturist and from Dr. I. Smith, a horticulturist, The applicants agreed that these individuals were experts in their respective areas. I will review their evidence in conjunction with discussing the caselaw.

8. Evidence was presented as to the importance of timing in a tree seedling nursery. Germina­tion and bud-set must occur within very small windows of' opportunity in order for the nursery to meet the required specifications of the contract with the purchaser. A failure to do so results in a discounting of the contract price or possibly, although it appears rarely, rejection of the seedlings. However, neither party argued that this section of the Act ought to be interpreted on the basis of competing or particular labour relations considerations. It was argued on the basis of the usual meaning of the terminology used in the Act.

9, The employer argues that the question of whether or not tree seedling nurseries are part and parcel of a reforestation effort or whether they simply provide a product used in that work has not been determined. It asserts that the business of Hill's is horticulture on the basis of the additional business of growing poinsettias and the sale and distribution of other flowers. The employer relies on Mr. Bax's opinion that the tree seedlings are merely a product used in silviculture, but what is done at the nursery is not silviculture, The fact that the nursery grows trees does not, according to Cedarvale Tree Services imifra, argues the employer, ipso facto make it silviculture. It also relies on Dr. Smith's view that the work is more akin to horticulture. The employer asserts that this evidence is uncontradicted and that the only conclusion the Board can reach is that the business of Hill's is horticulture and therefore exempt from the application of the Act.

10. The applicants argue that it is for the Board to interpret the Act not the witnesses. They note that horticulture and silviculture are not mutually exclusive terms. They rely on Chatham Horticultural Society; infra and Cedarvale Tree Services, infra to assert that horticulture involves "gardening" which they distinguish from a tree seedling nursery, an integral part of forestry. They took issue with Dr. Smith's conclusions on the basis that his definition of horticulture made no mention of gardening, but only talked of processes. They argue that different businesses might use similar processes but that did not make them the same business.

11. The employer submitted certain definitions which are useful to refer to at the outset. From the glossary to the Forest Management Planning Manual, pursuant to the Crown Forest Sustainability Act, "silviculture" is defined as:

Generally, the science and art of cultivating forest crops, based on a knowledge of silvics (URN 5384). More particularly, the theory and practice of controlling the establishment composition. constitution, and growth of forests (URN 5385).

12. "Silvics" is defined as:

The study of the life history, requirements. and general characteristics of forest trees and stands in relation to the environment and the practice of silviculture. (Aird)

The emphasis in the definitions is original and merely identifies that word as one also defined in the manual.

13. Those definitions contemplate silviculture as including the establishment of the forest, or, as Mr. Bax referred to, its renewal. There is no obvious basis for excluding controlled germination and early growth of tree seedlings in a greenhouse from less controlled practices that might occur in the forest stand. I was also referred to an excerpt from Silvicultural Terms in Canada, second edition, produced by the Policy, Economics and International Affairs Directorate, Canadian Forest Service, Natural Resources Canada, Ottawa, 1995. Part I of that publication provides an overview of Canadian silvicultural practices. The employer referred to a portion which distinguishes silviculture from forest management and states that silviculture (at page 7):

consists of actions token of the level of individual stands to renew and enhance the forest crop to meet stand management objectives for timber, wildlife, recreation, landscape design, preservation, and water yield.

(emphasis added]

It is not clear that the words "taken at the level of individual stands" refers to work performed out in the forest, as opposed to work undertaken in order to meet objectives designed for a particular or individual stand.

14. The publication goes on to identify and discuss "basic", "intensive" and "special" silvicul­tural practices. Included in the discussion of basic practices is the use of artificial means to regenerate forests for a variety of reasons which include unreliable natural regeneration, species control, beneficial breeding, and timing considerations. Still within that discussion of artificial regeneration is a discussion of "nursery practices" (at page 12):

Seedlots of species selected as suitable for specific forested sites are sent to forest nurseries for the production of planting stock. Originally, most planting stock was produced in bare-root nurseries, where the seed was sown on raised beds, covered with protective grit or sand, grown for one or two years. and then either outplanted in the forest, or transplanted in the nursery for a year or two to grow bigger before outplanting.

Currently, most nursery stock is raised in containers in greenhouses under more controlled tempera­ture and moisture conditions and is irrigated with standardized nutrient solutions. Container seed­ings grow faster, are more uniform, and are often cheaper to produce; however, they are often less able to compete after outplanting than bare-root stock. The stock type is usually ordered and custom grown one to three years in advance of outplanting. Current Canadian production is approaching one billion seedlings per year, grown in government and private nurseries. Much planting stock is held in cold storage following lifting, then trucked various distances to planting sites. Over 95% of the production is conifer, two-thirds pine and spruce species. There is a limited production of poplar raised from cuttings.

This description very closely reflects the work done by Hill's.

15. The employer also referred to and relied on a portion of the publication which notes that (at page 17):

The management of forest-tree nurseries is highly specialized and more akin to agriculture than to silviculture.

16. Notwithstanding the comparison, this commentary is contained in a discussion of "nursery management" found within a broader discussion of "special" silvicultural practices.

17. In contrast, the Board in Chathamn Horticultural Society, infra, adopted the interpretation given to the term "horticulture" used by the Ontario High Court in Regina v. Ontario Labour Relations Board, exparte Cedarvale Tree Services Ltd., (1970), 1970 CanLII 300 (ON HCJ), 15 D.L.R. (3d) 413 (upheld on appeal, see infra):

..."horticulture' means gardening and that in the statute it covers every kind of garden and garden work known in Ontario. It includes, among much else, work in ornamental gardens, botanical gardens and arboreta, tree nursery work, the development and care of civilized parks and urban and suburban roadsides, the care of individual shrubs and trees, topiary work, garden designs, landscap­ing and garden care. But it only includes those functions in connection with gardens of some kind.

18. I now turn to the caselaw and to the opinion evidence provided. The following cases were reviewed by the parties; Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832 (CA,); McLean-Peister Ltd., [1962] OLRB Rep. Nov. 290; Spruce Falls Power and Paper Company Ltd. [1963] OLRB. Rep. Sept. 327; and Chatham Horticul­tural Society [1980] OLRB Rep, Apr. 409, The decision in Spruce Falls is somewhat factually comparable. These cases provide some historical perspective and I will review them in chronological order.

19, In McLeamz-Peister, supra, the union applied to be certified. The employer took the position that its primary business was horticulture and therefore outside the scope of the Act. The provision under consideration was the same, although then subsection 2(c). The Board found that the employer was carrying on the business of "landscape gardener and nurseryman". It operated a store which sold gardening equipment and tools, and it sold shrubs, small trees, flowers and seeds. As well, it had two nurseries and a 70-acre turf (sod) farm. Three-quarters of its sales involved commercial, industrial and institutional landscaping, of which at least fifty per cent was grass seeding work. The nursery stock used in the landscaping work came from the company's nurseries.

20. The job giving rise to the application for certification involved a sodding contract. The work was performed by labourers. The Board concluded (at page 293):

Having regard to the operations of the respondent and to the work performed by the employees on the project involved in this application, all as outlined above, we ore of the opinion that the primary business of the respondent falls with in this definition [of horticulture], as does the employment of the employees in question... It appears to us that some work on construction sites may very well be horticultural by nature. But what is important is what is being done, not where it is done.

Having reached this conclusion it is not without interest to note that the Select Committee on Labour Relations in its report dated July It), 1958. recommended under the heading 'Horticulture' that The Labour Relations Act should be amended 'to permit those persons who are now employed by Nursery Companies, by Reforestation programmes, and Landscaping, to come under the provi­sions of this Act'. While the Act was subsequently amended, the amendment did not go nearly so far as the recommendation. In the words of the Commentary on The Labour Relations Amendment Act, 1960. which document was handed out to all members of the legislature on the introduction of the Bill in the House, 'The Act is extended to employees of municipalities engaged in horticulture (e.g. employees of parks departments) subject to section 78 of the present Act, to persons employed in reforestation programs, and to employees of employees [sic] of employers who engaged in horticulture only as a 'side line', e.g.. employees who look after flower beds and lawns of industrial plants'.

There is no suggestion here that employees now employed by Nursery Companies and in Landscap­ing were to be brought under the provisions of the Act.

(emphasis added)

21. The decision is not directed to the exception in respect of silviculture as the work concerned in the application was with respect to sod. To the extent there is any relevant reference, it is ambiguous and drawn not from the words of the statute but from a committee report and a legislative commentary. On the one hand it is suggested that persons employed in reforestation programs were intended to be covered by the Act. On the other hand, it is suggested that persons employed by nursery companies were not to be brought within the scope of the Act. The scope of the terms "reforestation programs and "nursery companies" are not discussed. The reference is made in the context of a sod farm that grew a wide variety of nursery stock and was not involved in growing tree seedlings for use in reforestation.

22. In September 1963 the Board had occasion to deal more specifically with the definition of "silviculture". The certification application dealt with by the Board in Spruce Falls Poster and Paper Company Limited, supra was in relation to that employer's tree seedling nursery. The description of the work affected by that application was set out, in part, as follows (at page 327):

The Spruce Falls Forest Nursery was established in 1947 to supply trees for the reforestation of the cutover on the limits of the Spruce Falls Power & Paper Company Ltd. This nursery has been built and is operated by the company without government aid or subsidy. Since its establishment in 1947. the Spruce Falls nursery has operated outside the jurisdiction of the union. Local 2995 applied for certification in 1956. but was turned down by this Board. Conditions have not changed since that time.

At the forest nursery, trees, mainly spruce and jackpine, are grown from seed to four years of age. The seed is sown in very carefully prepared seed beds in late October. The seeds germinate the following spring and are grown for two years in the seed beds. They are then lifted, graded and transplanted. The transplanting is done by an adapted celery transplanter. This transplanting gives the seedlings more space for the development of a good root system. At four years, i.e. - after two years in the transplant lines, the trees are lifted, again graded, and the acceptable stock is baled and shipped to the bush for planting on those parts of the cutover where natural regeneration of spruce is insufficient.

The planting in the cutover is not done by nursery employees. but by woods workers who are transferred to planting from other woods jobs such as cutting. Thus the planting in the bush is not included in the nursery operations which are being considered by this [B]oard.

Reverting now to the nursery operations, the equipment in use is farm equipment and the work is very seasonal and very dependent upon the weather. The fields are operated on a four year rotation. During the first two years cover crops such as rye. vetch, oats or buckwheat are grown and ploughed under. Fertilizer is added and the soil is worked up to a good tilth. During the next two years trees are grown and the cycle is then repeated.

While the trees are being grown, the seed beds and fields are irrigated regularly by means of a portable irrigation system. The fields are cultivated and weeded and are treated as necessary to control insects and disease.

The nursery labour force consists principally of labour drawn from the farming area around Moonbeam and comprises about 45% women. The forest nursery opens in late April with two or three experienced men engaged to do the preparatory work. Once the fields and soil are free of frost and snow, transplanting begins and the labour force rises to about 35 or 40 for two or three weeks. Transplanting is very seasonal and dependent on the weather. The help is mainly temporary, although most return year after year. By late May, transplanting is completed and the labour force drops sharply and in June is reduced to the regular group of six men and six women.

23. The 1956 application for certification referred to had been dismissed on the basis that the persons employed were engaged in agriculture and were therefore excluded from the operation of the Act. In 1960 the Act was amended to its current form. As a first issue, the Board concluded that employees employed in silviculture were covered by the Act. The Board considered the somewhat ambiguous comments from McLean-Peister, supra, referred to above and concluded that, as a matter of statutory interpretation, persons employed in silviculture were not excluded from the operation of the Act under the term "agriculture". There was no dispute before me on that issue; the issue was specifically the scope of' the terms "silviculture" and "horticulture".

24. The Board considered whether the employees were employed in silviculture. After re­viewing dictionary definitions of the term "silviculture" the Board concluded (at page 331):

It was argued by the respondent that silvicultural work is what is done in the forest itself and not what is done in the company's forest nursery. In determining whether or not the work done fails within what is meant by silviculture we think it is more important to look at what is being done rather than where it is done. The forest nursery is operated for the sole purpose of supplying trees for the reforestation of the cutover on the limits of the respondent company. In this respect it is an integral part of the company's reforestation operations. Even if the employees of a nursery confined to the production of trees in other circumstances or for other purposes would be considered to be employed in agriculture or horticulture, and we refrain from expressing any opinion one way or the other as to that, we must find in the circumstances of this case, that The Labour Relations Act does apply to the persons in question employed at the company's forest nursery.

[emphasis added]

25. In a dissenting opinion the Board Member noted that the earlier application had concluded that the work was "agriculture" and that the parties had agreed that there had been no change to the operations under consideration. He went on at some length to consider the definition of silviculture from various sources and concluded (at page 339):

The persons employed at the respondent's tree nursery do not enter the forest and the persons employed in silvicultural work in the forest do not work at the tree nursery. They are distinctly separate operations. Tree nurseries are sources of supply for seedlings to be planted in the forest to assist nature in the regeneration of the cutover areas. It is the permanent planting of the seedlings in the forest itself that is the silvicultural operation and not the growing of the seedlings at the nursery.

26. That latter argument was essentially the one put before me. The evidence in both cases is similar except for the actual ownership of the nursery. In this case the tree seedlings are cultivated by an employer in an arms-length relationship to the user of the seedling, the holder of the licence. However the work is the same as in Spruce Falls; to produce tree seedlings for use in the reforestation of stands. The methods are somewhat different as Hill's utilizes the more highly controlled environment of greenhouses rather than outdoor seed beds. I am not persuaded that that distinction is of real significance. The greater degree of control that is able to be exercised over the seedlings in the greenhouse environment represents a greater application of scientific method and intervention in the "cultivation" of the tree seedling, resulting in greater efficiency and greater quality and consistency of seedling. It may be that the method more closely resembles a "production" method. The essential nature of the work however is the same.

27. Subsequently, in the early seventies, the Board again had occasion to consider these statutory provisions. In Cedarvale Tree Services Ltd., [1970] OLRB Rep. Feb. 1305 the Board held it had jurisdiction to consider that application for certification on the basis that the activity engaged in by Cedarvale was not "horticulture" as it was "not primarily concerned with growth". Judicial review of that decision was successful and the matter then proceeded to the Court of Appeal. The issue in that case was whether or not the business activity was properly described as horticulture.

28. Cedarvale was described as a "specialist in trees". The general nature of its business was the treatment of trees, that is, pruning, stump and tree removal, lighting treatment and protection, cabling and bracing treatment, spraying, cavity treatment, bark tracing, feeding and fertilizing, and other incidental services concerning trees. The work was performed on individual trees, not wood lots. Cedarvale also performed pruning and clearing work for a hydro company in order to keep hydro lines clear. It did very little tree planting and was not involved in the cultivation and preparation of soil.

29. There was no suggestion in the case that the work being performed was silviculture. However the Court of Appeal did note that silviculture is a division of horticulture. In reviewing the legislative amendment, Mr. Justice Amup, writing for the Court stated (at page 837):

……The significant thing to me about the new clause was the exception from the exclusion ("any person, other than ... a person employed in silvaculture, who is employed in horticulture"). Silvaculture (sometimes spelled silviculture) is the cultivation of forests, and the necessary implica­tion from this exception from the class of persons "employed in horticulture" must be that silvaculture was regarded by the Legislature as a division of horticulture, and that employees engaged in silvaculture would otherwise have been excluded from the Act by the exclusion of persons "employed in horticulture". Clearly, then, the Legislature treated the word "horticulture" as including the cultivation of trees, including trees in forest form.

30. The Court considered the Latin roots to the term "horticulture" meaning "garden" and "cultivation" and found that it included the care, treatment and cultivation of trees. The Court disagreed with the Board's finding that the work was not horticulture because it was "not primarily concerned with growth" and overturned the Board's decision.

31. I note that in Cedarvale Tree Services the Court of Appeal did agree with the Board when it concluded it was not required to, nor did it need to rely on expert evidence to determine the meaning intended by the Legislature. The Court did however have regard to dictionary references in reaching its conclusion.

32. In Chatham Horticultural Society, supra, the Board concluded that the primary business of that employer was horticulture and accepted the definition set out in Cedarvale Tree Services, supra. The employer was engaged in the beautification of Chatham's public grounds by the planting and care of trees, shrubs, and flowers in gardens, pots and boxes. The employees prepared the soil, planted and maintained flowers and trees, and maintained grass areas. Garden work continued through the propaga­tion of plants in greenhouses for use in the public gardens the next year. Any maintenance activities were all directed to the horticultural activity.

33. The Board noted that the term "horticulture" should be interpreted strictly, given its exclu­sionary nature, but noted the decision of the High Court in Cedarvale Tree Services, upheld on appeal, that Cedarvale employees who spent "significant time and effort in [horticulture]" fell within the exclusion.

34. Returning to the statute then, subsection 3(c) is appropriately interpreted to mean that the Act does not apply to a person employed in horticulture by an employer whose primary business is horticulture (subject to the exception discussed below). That exclusion contemplates a two-fold inquiry; first, what is the primary business of the employer. If that primary business is horticulture then a second question arises; what is the work of the person employed. If the answer to both questions is "horticul­ture", the Act does not apply to that person. If the person, although employed by an employer whose primary business is horticulture, is employed in work other than horticulture, the Act applies to them.

35. As found in The Jackson-Lewis Company Limited, [1981] OLRB Rep. Dec. 1794 the Act does not exclude "horticulture" per se. The Board noted the corollary that the Act does not exclude employees who are employed in horticulture work by an employer whose primary business is not horticulture, The two-fold inquiry must result in an affirmative answer to both questions before a person is subject to the "horticulture" exclusion under the Act.

36. Then there is an exception. The Act also provides that even if an employer's primary business is horticulture and the person is employed in horticulture, that person is still not excluded from the application of the Act if they are employed in silviculture or are an employee of a municipality.

37. Thus the Act contemplates that the primary business may be horticulture but the work performed by the employee, silviculture, and that the Act would apply to that person. This interpretation is consistent with the Court of Appeal's comments in Cedarvale Tree Services, supra which recognized that silviculture is a division or sub-set of horticulture.

38. A similar test can be utilized to determine whether a person is employed in silviculture (or horticulture) to the test used in both Cedarvale Tree Services and Chatham Horticultural Society in determining the primary nature of the business. If the employee spends significant time and effort in silviculture (if it is their "primary" employment), they are so employed.

39. In the case before me, the employees spend significant time and effort in the planting, cultivation, and care of tree seedlings for use in reforestation programs. Dr. Smith, a horticulturist, testified that in his view this work was closer to horticulture than to silviculture because of the greater capital and labour intensity of the work.

40. In a letter prepared for these proceedings he comments:

Definitions which separate horticultural enterprises from agronomic, and silvicultural enterprises, generally refer to the size and intensity of the operation and the practices involved in crop production. The former are intensive in their use of capital, space, protective structures, management and in particular labour - in comparison with the latter which are extensive by nature.

A debate over whether [tree seedling nurseries] can be more closely allied with extensive forestry/silviculture practices because they involve the growing of forest trees per Se, or whether they are allied to agricultural/horticultural enterprises because of the intensive nature of their operation and use of capital and labour may ensue, or may have been defined by some act. In my opinion, the practices involved in the production of tree seedlings have more in common with the latter.

[emphasis in original]

41. Dr. Smith differentiated horticulture from other cultures on the basis of the intensity of the practice; the use of greenhouses with high heating costs, expensive capital equipment, highly controlled environments. He also discussed that the work is labour intensive and operational risks are high.

42. I do not find this to be particularly helpful. These distinctions do not appear in the statute and the Court of Appeal has rested its view on the traditional and "lay" definition of horticulture as having to do with the culture of gardens. Hill's specifically agreed that silviculture was a division or sub-set of horticulture, as set out in Cedarvale Tree Services. If silviculture is a part of horticulture one could reasonably expect to find similar practices being utilized to some extent in both. Dr. Smith did agree that one significant difference between tree seedlings and bedding plants was the "product". He also agreed that tree seedlings are an integral part of the forestry industry.

43. To highlight the difficulty of simply adopting the view of the witnesses was the fact that Dr. Smith testified that Hill's is a member of the Ontario Federation of Agriculture recognizing, he stated, that Hill's is involved in agriculture. If a person is employed in agriculture then the Act does not apply according to subsection 3(b). Notwithstanding the pre-amendment treatment of the first certification application in Spruce Falls, supra, the employer here did not assert that position.

44. Mr. Bax testified that in his opinion the work was not silviculture as it did not occur out in the forest stand. He essentially agreed with the dissenting Board Member's view in Spruce Falls, supra that the nursery was a source of supply of a product to be utilized in the practice of silviculture. He likened it to the manufacturer of a band-aid or other medical supplier as not engaging in the practice of medicine.

45. Mr. Bax's written opinion states that a silviculturist is one who tills or cultures the forest. He compares that to a horticulturist as one who tills the garden and an agriculturist as one who tills the field. This comparison is also of little assistance. If "horticulture" and "silviculture" were separate and distinct activities, it would only be necessary to refer to "horticulture" to accomplish its exclusion, without in any way affecting silviculture. Silviculture would be understood as something distinct and employees engaged in that activity would remain within the scope of the Act; a result that the parties agreed is the one intended by the subsection.

46. Mr. Bax testified that experience in a tree-growing nursery would not qualify one as a silviculturist. Silviculturists, in his view, work in the forest, managing and manipulating the forest for various objectives. He included renewal of the forest as part of the work, but drew a line at the nursery as the place from which products were ordered that were needed to accomplish the renewal.

47. The difficulty is in trying to apply Mr. Bax's comments to the task of legislative interpreta­tion. The Act does not refer to "silviculturists". It uses the term "silviculture". In effect Mr. Bax says that silviculture is something practiced only by silviculturists. By logical extension, the Act applies only to persons such as Mr. Bax. However that is not a logical interpretation of the subsection. It would mean that the Act would not apply to tree planters or other persons engaged in labour in the forest, carrying out the work required to implement the decisions of the silviculturist to meet the determined objectives. I do not doubt Mr. Bax's comments that experience in a tree-growing nursery would not qualify one as a silviculturist. Nor would working as a tree planter out in the forest stand. Yet neither the employer or Mr. Bax appeared to dispute that tree planting formed part of the practice of silviculture. The term "silviculture" must, in my view, refer to the work required in the practice of silviculture. Where does that line fall? Must one be working in the forest to be employed in silviculture?

48. The Board utilized the same approach in both McLean-Peister, supra, and Spruce Falls, supra. It reviewed dictionary meanings of the term silviculture, including occupational titles which defined a silviculturist as a specialist in the "establishment and care of forest stands ... through the operation of trees [sic] nurseries...". The Board concluded that it was more important to look at what was being done rather than where it was done; that the work of the tree seedling nursery was an integral part of the employer's reforestation operations. The fact that Hill's is owned and operated by an employer not related to the forestry company purchaser does not alter the integral nature of the work performed to the forestry industry and any reforestation efforts. I am also not persuaded that tree seedlings are appropriately described as "products" utilized in the practice of silviculture. The essence of silviculture has to do with the long-term cultivation, growth, care, and management of those very trees, in the context of the forest stand for which they have been selected.

49. Nurseries whose business is not the cultivation of tree seedlings for use in the establishment and/or renewal of forests and which do not employ persons in that activity would be excluded from the operation of the Act by virtue of the exclusion of "horticulture". However, I am satisfied that Hill's Greenhouses Ltd. 's primary business is producing tree seedlings for reforestation efforts. Further, I find that the employees performing that work are employed in silviculture. The Act therefore applies to these applicants and the Board has the jurisdiction to entertain the applications.

50, At the conclusion of hearing this preliminary matter I had discussions with the parties concerning certain other preliminary matters. The parties are agreed that if the Board found that it has jurisdiction to proceed then a further application filed as Board File No. 4203-96-U is to be consolidated and proceed with these matters.

51. There were outstanding production issues. The employer has agreed to produce to the applicants any time sheets for Ethel Kemp for the period 1985-1996. In addition, the employer is to produce any notes or documents related to Allen Tower's investigation of Ms. Wolframe's allegation that Ron Vilim struck her; including any notes of Mr. Tower's questioning of Ms. Fawcett, Mr. Vilim, or other employee, including, Gloria Hintikka, Susan Tulkki, and Yvonne G. The applicants are to produce any of their notes or records relating to the alleged assault, including any documents or statements given to police and any notes of Dr. S. Inovye. The employer acknowledged that certain of these documents or notes may be outside the control or custody of the applicants and not then subject to this direction.

52. The employer has raised a further preliminary issue relating to the timeliness of certain allegations. The employer argued that this objection also raised an issue as to whether certain matters ought to proceed on the basis that the union then representing the applicants is alleged to have raised the same matters in earlier proceedings which were either withdrawn or otherwise dealt with. On a review of the matters, the employer agrees that all the allegations raised in these proceedings have been raised for the first time with the exception, it asserts, of the issue of Ms. Wolframe's seniority date. The applicants dispute this assertion. Therefore, there is an outstanding preliminary objection with respect to the timeliness of various allegations (an issue concerning the Board's discretion whether to inquire into certain allegations on the ground of the delay in raising them) and on a separate ground, whether the allegation concerning the employer's treatment of Mr. Wolframe's seniority date ought to proceed on its merits, The parties are agreed that it will be necessary to call evidence with respect to these preliminary matters.

53. These applications and Board File No. 4203-96-U are hereby referred to the Registrar to schedule a hearing for the purpose of hearing the evidence and representations of the parties with respect to any and all issues in dispute. This panel is not seized.