Ontario Pipe Trades Council v. Ontario Hydro, 1997 CanLII 15583

Ontario Labour Relations Board

[1997] OLRB REP. JULY/AUGUST 659

2947-94-R; 3010-94-R Ontario Pipe Trades Council and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Applicants v. Ontario Hydro, Responding Party v. Power Workers' Union, CUPE Local 1000, Intervenor #1 v. Labourers' International Union of North America, Local 1059, Intervenor #2 v. Electrical Power Systems Construction Association, Intervenor #3; Labourers' International Union of North America, Local 1059, Applicant v. Ontario Hydro, Responding Party v. Electrical Power Systems Construction Association, Intervenor #1 V. Power Workers' Union, CUPE Local 1000, Intervenor #2 V. Ontario Pipe Trades Council and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Intervenor #3

BEFORE: Lee Shouldice, Vice-Chair, and Board Members W N. Fraser and G. McMenemy

APPEARANCES: S.B.D. Wahl, J. Porter, S. Morrison and B. Christie for the Ontario Pipe Trades Council and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527; John Moszynski and Bill Casemore for Labourers' International Union of North America, Local 1059; M. Patrick Moran, Harvey A. Beresford, Bob Wright and R. Currie for Ontario Hydro; M. Patrick Moran, Harvey A. Beresford and Bob Wright for Electrical Power Systems Construction Association; Chris Dassios, W Campbell and W Wallace for Power Workers' Union, CUPE Local 1000.

DECISION OF THE BOARD; July 18, 1997.

I. Introduction - What this Case is About

1. These are applications for certification in the construction industry. The applications were filed with the Board on November 17, 1994, prior to the effective date of the Labour Relations Act, 1995, and therefore are to be determined by reference to the Labour Relations Act, R.S.O. 1990, c. L.2, as amended (hereinafter referred to as "the Act"). The applicants (hereinafter referred to respectively as "the U.A." and "the Labourers") have applied under section 146(1) of the Act to represent members of their respective trades in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and in all other sectors of the construction industry in Board Area 3.

2. We note that Board File 2947-94-R is an application brought by two separate trade union entities. The Ontario Pipe Trades Council is both part of the designated employee bargaining agency designated to represent journeymen and apprentice plumbers and steamfitters represented by the affiliated bargaining agents described in the designation, and is also itself an affiliated bargaining agent of that designated employee bargaining agency. Local 527 is, of course, a constituent trade union of the Ontario Pipe Trades Council and an affiliated bargaining agent of the designated employee bargaining agency. It is not appropriate for more than one trade union to bring a single application for certification (see Centro Mechanical Inc., [1996] OLRB Rep. Sept./Oct. 762). We will comment further on this below.

3. These two applications are brought in relation to work performed on the installation of a steam and a condensate line in the Bruce Energy Centre, adjacent to the Bruce Nuclear Power Development in Bruce County, Ontario. For the purposes of this decision, we will refer to the separate steam and condensate lines collectively as "the steam line" or "the steam pipeline". Although the lines are entirely different in nature and in purpose, during the course of the hearing the parties, for the most part, referred to the lines as "the steam line" or "the steam pipeline", and there is no reason not to do so here. It should be kept in mind, however, that there are, in fact, two separate lines which are the subject of these applications for certification.

4. There are numerous issues which have been raised by the parties in their pleadings. By way of decision dated July 7, 1995, the Board (differently constituted) dealt with a number of preliminary issues, and directed that a pre-hearing conference be convened to narrow or settle the issues in dispute. A pr-hearing conference was held on July 19, 1995, before a Vice-Chair of the Board. During the course of that pre-hearing conference, the parties agreed upon the order of proceeding.

5. The first issue to be considered, and the issue determined by this decision, was described by the parties at the pre-hearing conference as "the application, scope and coverage" of the Electrical Power Systems Construction Association collective agreements (hereinafter referred to as "the EPSCA agreements"). Ontario Hydro asserts that the employees who would be included in the bargaining units sought by each of the applicants are already represented by the applicants under the EPSCA agreements. The applicants take the contrary position. It was agreed by the parties that the Board would issue a ruling respecting this first issue prior to proceeding with any of the other issues. It was also agreed by the parties during the course of the hearing that, for the purposes of any further issues litigated before the Board, the evidence adduced on this issue could be referred to by the parties, and the findings of fact made by the Board could not be challenged.

6. Although the collective agreement language governing the relationship between Ontario Hydro and the U.A., on the one hand, and Ontario Hydro and the Labourers, on the other, is slightly different, the critical language is almost identical in both of the EPSCA collective agreements. The relevant language in the U.A. collective agreement reads as follows:

1.1 FPSCA recognizes the Union as the exclusive bargaining agency for a bargaining unit as defined in Section 1.3 engaged in

i. all construction industry work under ttze responsibility of Design and Construction Branch/ENCON Services Branch (including Generation Projects Division and Transmis­sion Systems Division),

ii all Major* construction industry work which is tendered/contracted for all other Divisions of Ontario Hydro and,

iii work performed by the Design and Construction Branch for any Operations branch of Ontario Hydra where it has been determined by that Operations branch that there does not exist internally the expertise or the current staff to perform the work.

This work shall be performed in the Province of Ontario on Ontario Hydro property for the bulk power system. The work encompasses:

• construction of new facilities

• additions to existing facilities

• modifications

• rehabilitation

• reconstruction of existing facilities

For the purpose of clarity, the bulk power system comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltages over 50KV) and transmission stations, micro­wave and repeater stations save and except the building of commercial-type office facilities at urban locations remote from operating facilities.

The asterisk after the word "major", above, refers to a letter of understanding which is not relevant to the issue at hand.

7. The Board heard a great deal of evidence and argument focusing on whether the work in question was "on Ontario Hydro property for the bulk power system". These are the key concepts in dispute. As noted above, the collective agreement binding Ontario Hydro and the Labourers contains similar, though not identical, language. The differences in language will be addressed below.

8. The hearing of the first issue in these proceedings commenced on October 23, 1995, and continued for 28 hearing days over the course of 14 months, coming to completion in December, 1996. The Board heard the testimony of nine witnesses and marked 213 exhibits during the course of the hearing. Although there were some inconsistencies in the evidence heard by the Board, we are satisfied that each witness testified to his recollection of the events in question to the best of his ability and that it is unnecessary to comment on the relative credibility of the witnesses.

II. Decision

9. Having regard to all of the evidence before the Board, we are of the view that the employees who form the basis of the bargaining units sought by each of the applicants were not represented by either of the applicants under its respective EPSCA agreement on the certification application date.

10. Our reasons for reaching this conclusion are set out immediately below.

III. The Facts

(a) The Bruce Nuclear Power Development

11. As noted above, these applications for certification were brought by the applicants with respect to work being performed on the site of the Bruce Energy Centre (hereinafter referred to as "the B.E.C.") in Bruce County, Ontario. The B.E.C. is slightly more than two miles due east of the Bruce Nuclear Power Development (hereinafter referred to as "the B.N.P.D."), which is located on the eastern shore of Lake Huron, between Kincardine and Port Elgin.

12. By way of background, within the boundaries of the B.N.P.D. are two operating nuclear generating stations (hereinafter referred to as "Bruce A" and "Bruce B", respectively), a heavy water plant, a steam plant, waste storage facilities, a nuclear training centre, and numerous other administra­tion and service buildings, some of which will be mentioned below. All of the buildings on site were built by EPSCA trades in accordance with the EPSCA collective agreements in force at the time. At the B.N.P.D. site, Ontario Hydro employs approximately 4,700 individuals. Of primary significance in these proceedings, the B.N.P.D. also supports a bulk steam system.

13. The B.N.P.D., as a nuclear power development, has a large chain link fence which surrounds the site, approximately two kilometres from the lake. The fence is intended to keep individuals from entering the site. Beyond the fence, however, Ontario Hydro has also established a "two mile administrative boundry" which runs east from the lake. Ontario Hydro has purchased much of the land which is encompassed by this boundary. The purpose of the boundary is essentially that of ensuring safety: at the Bruce Heavy Water Plant, a chemical process involving hydrogen sulphide gas and large amounts of steam is utilized to separate heavy water from ordinary lake water. Hydrogen sulphide gas is highly toxic. In the event of an emergency, the administrative boundary would ensure easy accessibil­ity by emergency staff and also ensure control of the area for evacuation purposes.

14. As noted above, as part of the generation of nuclear energy, steam is produced in order to separate heavy water from light water. Heavy water is utilized as a coolant in the nuclear reactors. This separation process is completed at the Bruce Heavy Water Plant which is located on the B.N.P.D. site. The steam which is utilized in this process is generated by the four reactors at Bruce A and transported by way of four pipes to the adjacent Steam Transformer Plant, and subsequently to the Heavy Water Plant.

15. It became evident to Ontario Hydro many years ago that the nuclear reactors at Bruce A could create steam in quantities well in excess of that required to produce heavy water at the B.N.P.D. site. Accordingly, excess medium pressure steam has been utilized by Ontario Hydro to provide heat energy for various buildings on the site. In order to transport this steam to the site locations, a pipeline was constructed using Ontario Hydro construction forces pursuant to the EPSCA collective agreements. A condensate line permits for the return of the steam, in liquid form, to the Steam Transformer Plant for regeneration to steam energy. Accordingly, the system is in the nature of a "closed loop". There is no major facility on the site without steam heating. Most significantly, it was determined by management of Ontario Hydro in the early 1980's to utilize the excess steam capacity at the B.N.P.D. to encourage development of the B.E.C., which is described below.

16. As noted above, the steam which is generated at the B.N.P.D. has as its genesis Bruce A. That steam is transported through four steam lines to the Steam Transformer Plant, and then in two, 66" pipes, to the Heavy Water Plant. From there, a number of smaller steam lines have been constructed in order to permit for distribution of steam throughout the B.N.P.D.. For the purposes of these proceedings, it is sufficient to observe only that there is a 24" main arterial steam line and a 10" condensate line that travels (roughly) due east from the Bruce Heavy Water Plant. These lines travel beyond the perimeter fence and the two mile administrative boundary, and terminate at the B.E.C., where the lines branch out to permit delivery of steam to many of the businesses located at the B.E.C..

17. It is significant to note that the steam pipeline and the condensate line are physically located, as they proceed east to the B.E.C., on a "power corridor" which runs east from the B.N.P.D. to the Wingham Transmission Station. The power corridor is located on land owned by Ontario Hydro, and runs by the B.E.C. on the south side. It is from the power corridor that the steam pipeline enters the B.E.C.. The power corridor is the land upon which the main electrical grid lies, permitting the transmittal of electrical power from the B.N.P.D. to consumers in Ontario. There are three sets of power lines which travel east on the power corridor, one which delivers 500 kilovolts ("KV") of power, one which delivers a further 250 KV of power, and a third which delivers 44 KV of power.

(b) The Bruce Energy Centre

18. The B.E.C. is an industrial park which lies to the east of the B.N.P.D.. In the late 1970's a study was commissioned by Ontario Hydro to consider the feasibility of utilizing the excess steam created by Bruce A to support the development of commercial activity near the nuclear plant site. Various initiatives were subsequently undertaken to develop a commercial approach to such an indus­trial park. To a great extent, the theory of the B.E.C. is to attract industries in which the waste product of one industry is a feedstock of another, so as to "add value" to the location.

19. In 1981, the Power Corporation Act, the legislation which creates Ontario Hydro and provides it with certain powers and authority, was amended in order to permit Ontario Hydro to sell steam. Regulations regarding the production and sale of steam energy were enacted by the Lieutenant Governor in Council in 1983. The parties directed much of their argument towards the scope and nature of the authority provided by the Power Corporation Act, and accordingly we will address the legislation in much greater detail below. For the purposes of this overview, it is sufficient to state that it appears that there was some question as to the authority of Ontario Hydro to sell steam (or "heat energy") for commercial purposes at the B.E.C., and accordingly the legislature amended Ontario Hydro's governing legislation to alleviate any concerns.

20. Since the amendments to the legislation, the B.E.C. industrial park has developed somewhat. As at the certification application date, six companies had located at the B.E.C.: Bruce Tropical Produce Inc., a nine acre greenhouse that grows tomatoes year round; Commercial Alcohols Inc., a company that manufactures ethanol from corn, and produces vodka and alcohol for mouthwash; Bruce Agra DeHy Inc., which takes corn and canola and dehydrates it into livestock feed, primarily for the equine market; St. Lawrence Technologies Inc., which conducts research into the use of chicory as an agricultural product; Bruce Agra Foods Inc., which produces apple concentrate; and, most significantly for the purposes of these proceedings, Bi-Ax International Inc. (hereinafter referred to as "Bi-Ax"), a plastics extrusion plant which manufactures plastic sheeting in the nature of stretch wrap. As at the certification application date, each of these companies had executed "Steam Sale Agreements" with Ontario Hydro, some of the terms of which will be outlined in more detail below.

21. The responsibility for the development of the B.E.C. has been transferred amongst a number of divisions of Ontario Hydro since its inception. For the purposes of these proceedings, it is important to note that in 1994 responsibility for the B.E.C. was transferred from Ontario Hydro International to Ontario Hydro Nuclear. As part of that transfer of responsibility, representatives of Ontario Hydro Nuclear met with the various industries at the B.E.C. and it was determined that an outstanding obligation was owed by Ontario Hydro International to Bi-Ax. At that time, Bi-Ax was not in receipt of heat energy from the B.N.P.D., and it was determined that Ontario Hydro International had promised to extend the steam line (which had been constructed into the B.E.C.) in order to permit Bi-Ax access to heat energy. As will be described in greater detail below, it was decided by Ontario Hydro to extend the steam line by January 1, 1995, in order to permit Bi-Ax to access the heat energy by that date.

22. At this stage, it is helpful to outline the development of the steam line since its inception in the early 1980's.

(c) Development of the Steam Line

23. During the course of the hearing, the parties made reference to the development of the steam line by referring to four separate "phases" of the line's construction. Appropriately, the four phases were referred to numerically; i.e. Phases One, Two, Three and Four. We will continue in this decision to make references to the separate portions of the steam line by reference to the numerical phase.

(i) Phase One

24. As noted above, Ontario Hydro has created a two mile "administrative boundary" around the B.N.P.D.. The eastern-most point on the two mile administrative boundary falls just west of the B.E.C.. The first phase of the construction of the steam line was from the B.N.P.D. to the various facilities on the site, and subsequently east to the two mile administrative boundary. This construction was completed in 1985. The pipeline consists of a 24" steam line and a 10" condensate return line. The construction was completed entirely by Ontario Hydro forces, pursuant to the applicable EPSCA collective agreements. All of the land upon which Phase One of the steam pipeline was constructed is owned in fee simple by Ontario Hydro.

25. Phase One of the steam line terminated at a point which was referred to in much of the documentation, and by the witnesses at the hearing, as the "delivery gate". The "delivery gate" is not, as one might think, a gate or fence, but rather a notional point "up the hill" from the B.N.P.D. towards the B.E.C.. There was a great deal of testimony directed towards identifying just where the "delivery gate" was located, and whether the "delivery gate" and the "two mile administrative boundary" were co-terminal points. In our view, it is evident that the "delivery gate" is a concept which was intended to identify the terminal point of the two mile administrative boundary on the Ontario Hydro power corridor. Consider, for example, an agreement for the delivery of heat energy between Ontario Hydro and Bruce Tropical Produce Inc. (Ex. 96), dated May 25, 1988, which defines the term "delivery gate" as follows:

"Delivery Gate" means that point located on Hydra's 500,000 volt transmission line right-of-way at the boundary of Lots C and D, Concession IV in the Township of Bruce, the boundary also known otherwise as BNPD's 2 mile Administrative Boundary.

We are satisfied that the concept of the "delivery gate" and the point on the power corridor which marked the 2 mile administrative boundary are one and the same points for the purpose of the steam pipeline.

26. As noted above, there would appear to be little dispute that all of the work related to the construction of the steam pipeline on the B.N.P.D. site, and beyond the B.N.P.D. site to the "delivery gate", including the fabrication of the pipe, was performed by members of the various construction trades on site, pursuant to the terms of the respective EPSCA collective agreements. There was no suggestion that any of this was controversial. It was the testimony of Mr. Steve Morrison, the Chief Steward of the U.A. at the B.N.P.D. during much of the 1980's and during the 1990's, that Ontario Hydro management regularly represented to the construction trades that the geographical limit of the EPSCA collective agreements, for the purposes of the B.N.P.D., was found at the edge of the two mile administrative boundary. Although this will be discussed in further detail below, there is also substantial documentary evidence which establishes that Ontario Hydro was of the view that the two mile administrative boundary was the relevant geographic limit of the EPSCA agreements.

(ii) Phase Two

27. Phase Two of the steam pipeline was constructed from July, 1985 through to September or October, 1986. Again, there is little dispute with respect to the basic factual background of its completion. Phase Two of the steam line runs approximately 200 feet due east from the "delivery gate", then due northeast across the power corridor to and beyond the property line of the B.E.C., to the northeast portion of the B.E.C.. Once again, the pipeline consists of a 24" steam line and a 10" condensate return line. This phase of the steam line was described in evidence as a "large power corridor" intended to service many different businesses at the B.E.C.. In fact, it would appear from the documentary evidence that it was the expectation of the builder of this stage of the steam line that the steam line would provide many businesses at the B.E.C. with access to steam energy.

28. Phase Two of the steam line was designed and engineered by Ontario Hydro but constructed by an entity known as Resolute Development Corporation (hereinafter referred to as "Resolute"), and was completed by employees of Resolute, rather than the construction trades of Ontario Hydro. The funding for the construction of Phase Two of the steam line came from the government-funded "BILD" program - although Ontario Hydro actually paid the monies for the construction of the steam line to Resolute, the monies for the project were obtained by Ontario Hydro from the provincial government's program. It should be noted here that the businesses on the B.E.C. were responsible, during Phases Two, Three, and Four, for the cost of "hooking up" the steam line to their operations. That is, the cost of the steam infrastructure beyond what was referred to as "the terminal isolating valve" (approximately at the customer's lot line) was the responsibility of the business receiving the heat energy.

29. At this point it is helpful to identify some of the key players in the development of the B.E.C. One of the prime movers behind the B.E.C. concept has been, and still is, Mr. Norman ("Sam") MacGregor. Mr. MacGregor is a businessman in the Bruce County area and has owned, at various times, much of the land in and around the B.E.C.. He also has had, to varying 'degrees, an interest in one or more of the businesses located in the B.E.C. Mr. MacGregor was the guiding mind behind Resolute and a company named Boiler Beach Park Limited (hereinafter referred to as "Boiler Beach"). The evidence suggests that at times Ontario Hydro considered Boiler Beach and Resolute to be substitutable entities. However, it would appear that Boiler Beach was a wholly-owned subsidiary of Resolute and was the corporate entity that held property interests of Mr. MacGregor in or about the B.E.C. In the mid-1980's, it was Resolute that had entered into an agreement with Ontario Hydro to develop the B.E.C. as an industrial park.

30. Bruce Energy Centre Limited was incorporated as the development arm of Canadian Agra Corporation, the latter also being a company in which Mr. MacGregor participates. Within the last few years, Bruce Energy Centre Limited has changed its name to Ontario Interlink Industrial Park Limited. Canadian Agra Corporation has an interest in a number of the businesses at the B.E.C., including Bruce Agra Dehy Inc., Bruce Tropical Produce Inc., Bruce Agra Foods Inc., and St. Lawrence Technologies Inc.

31. Near the completion of this phase of the steam pipeline, the U.A. applied to the Board for a certificate to represent plumbers, plumbers' apprentices, and steamfitters and steamfitters' apprentices in the employ of Resolute in the I.C.I. sector of the construction industry, and in all other sectors of the construction industry in Board Area 3. The application was successful and the Board ultimately issued the U.A. the usual two certificates on July 23, 1986. At the time, neither Ontario Hydro nor EPSCA was identified by either the U.A. or Resolute as a potentially interested party in the proceeding.

(iii) Phase Three

32. With this background established, we return to the completion of the steam line. In 1990, the third phase of the steam line was completed. Its completion was to permit the delivery of steam energy to what is now Bruce Agra Dehy Inc.. It appears from the engineering drawings entered as an exhibit that the Phase Three pipeline consists of a 16" steam line and a 6" condensate return line. The third phase of the steam line feeds off from the second phase of the line, follows the east side of Farrell Drive, eventually goes under the road to the west side of Farrell Drive, and moves west between Lots 3 and 4 of the subdivision, allowing access to the steam line for St. Lawrence Technologies Inc. (which had not been built in 1990) and Bruce Agra Dehy Inc.. These Lots were owned at the time of the construction of Phase Three by Bruce Energy Centre Limited, having been purchased from Boiler Beach in February, 1989.

33. Once again, there appears to be little dispute as to the circumstances surrounding the construction of the third phase of the steam line. The steam pipeline was constructed by Canadian Agra Corporation, which had subcontracted the design of the line to Brian G. Butler & Associates (1985) Ltd., a firm of consulting engineers, at the cost to Ontario Hydro of approximately $800,000. Ontario Hydro did not let any of the construction contracts for Phase Three of the steam pipeline, but had control over the choice of subcontractor, cost and design of the steam pipeline. Phase Three of the steam pipeline was completed by individuals employed by Canadian Agra Corporation, and not Ontario Hydro. The EPSCA agreements had no relevance to the construction of this phase of the steam line.

34. Ontario Hydro paid Canadian Agra Corporation for its share of the cost of the construction of the third phase, and anticipated a formal agreement between Canadian Agra Corporation (or, it would appear, a related holding company) and Ontario Hydro in which the ownership of the steam line would be passed to Ontario Hydro. No such agreement was entered into evidence, but there was no dispute amongst the parties that Ontario Hydro owns the piping infrastructure at the B.E.C. (up to and including the terminal isolating valves of each business).

(iv) Phase Four

35. As noted above, the transfer of responsibility for the B.E.C. from Ontario Hydro Interna­tional to Ontario Hydro Nuclear caused the latter to investigate the obligations owed to various companies in the B.E.C.. During the course of its investigation, Ontario Hydro Nuclear discovered that Bi-Ax had been promised access to the steam line. Bi-Ax is located on Lot I of the subdivision, and in order to make the steam line accessible by Bi-Ax the steam pipeline would have to be extended north along the west side of Farrell Drive, from Lot 3 (where St. Lawrence Technologies had been built), over or around Lot 2 (at the time, a vacant lot), to Lot 1. It was determined by Ontario Hydro that the steam line would be extended to permit Bi-Ax to hook into the steam pipeline by January 1, 1995. It is evident that this phase of the steam pipeline consists of a 10" steam line and a 4" condensate return line.

36. Although the evidence is somewhat sketchy, it would appear that rumours to the effect that the steam line at the B.E.C. might be extended floated around the B.N.P.D. during the early summer of 1994. It was, at that time, believed by Ontario Hydro that the contract for the work would be let by "the B.E.C.". It was not clear whether the contract would contain reference to the Labour Requirements provisions of the EPSCA collective agreements. Draft tender documents to this effect were created by Mr. Mick Fitt, a Field Engineer in the Projects and Modifications division of Ontario Hydro.

37. All of this changed, however, in September, 1994. On September 27, 1994, a meeting was convened in the office of Mr. Bill Cushing, the Manager of Capital Modifications of Ontario Rydro responsible for the Phase Four construction. Attending at that meeting was Mr. Dave Roman, who was, at that time, the Assistant Divisional Superintendent at Bruce A, Mr. Fitt, and Mr. Bev. Jennings, Ontario Hydro's Engineering Resource Coordinator. During the course of this meeting there was a discussion regarding the possibility of utilizing Ontario Hydro construction forces to construct Phase Four ot the steam pipeline. There was, at the time, a likelihood that some layoffs would be required of EPSCA tradespersons due to a lack of work, and Ontario Hydro felt that it would be preferable to maintain these tradespersons in its employ rather than laying them off.

38. At the end of the meeting, Mr. Homan was charged with two actions. First, he was to contact Ontario Hydro labour relations to discuss the appropriateness of performing the steam pipeline work at the B.E.C. with Ontario Rydro construction forces pursuant to the EPSCA collective agreements, because there was some question amongst Ontario Hydro management as to whether the work in question fell within the Electrical Power sector of the construction industry. Secondly, Mr. Homan was to speak to the Chief Stewards of each of the EPSCA trades and obtain from them written authority to have the steam pipeline work performed under the EPSCA collective agreements. As the project was to be completed before the end of the year, there were some time pressures imposed on obtaining this information and these consents. Accordingly, immediately after the meeting, Mr. Roman asked Ms. Lesley Hall, the EPSCA representative on site, to contact Ontario Hydro labour relations and to enquire as to whether Ontario Hydro could utilize the building trades on site to perform this work. He also contacted Mr. Morrison of the U.A., who was the Chairman of the Chief Stewards Committee at the B.N.P.D., and requested that Mr. Morrison contact the Chief Stewards of all of the EPSCA trades and advise them of a meeting in Mr. Roman's office later that morning.

39. As requested by Mr. Roman, almost all of the Chief Stewards of the trades on the B.N.P.D. site met in his office later that morning. Mr. Morrison arrived at Mr. Roman's office in advance of the other chief stewards and spoke to Mr. Roman. Mr. Roman indicated to Mr. Morrison that Ontario Hydro would require something signed from the unions before the work at the B.E.C. could be done by Ontario Rydro construction trades. It was Mr. Morrison's testimony, which we accept, that he responded to that comment by saying "yeah, a signed I.C.I. agreement". Mr. Roman could not recall such an exchange but conceded that it may have occurred.

40. Once the Chief Stewards had assembled in Mr. Roman's office, a brief discussion occurred. Mr. Roman indicated to those in attendance that in order for the Ontario Hydro construction forces to perform the Phase Four steam pipeline work at the B.E.C., Ontario Hydro would require from the offices of the various trade unions written authorizations permitting the work to be performed under the EPSCA agreements. Mr. Roman conveyed to those present the tight timelines for the project. Although Mr. Roman could not recall either Mr. Morrison or Mr. Casemore (in attendance on behalf of the Labourers) making any comment in response to his statements, he stated that, based on comments he did hear at the meeting, he felt that all of the Chief Stewards were "in favour of doing the work".

41. Subsequently, Mr. Morrison and Mr. Casemore attended at Mr. Homan's office to discuss with Mr. Roman this request for written authorization. Mr. Morrison had spoken to Mr. Jack Porter, Business Manager of the U.A., and had been instructed to advise Mr. Roman that no written authoriza­tion as requested would be forthcoming from the U.A.. There is some difference in the testimony as to when this attendance in Mr. Roman's office occurred. For the purposes of this decision, it is unnecessary to resolve the question, because it is undisputed that, prior to the attendance at Mr. Roman's office by Mr. Morrison and Mr. Casemore, Mr. Roman had been advised by Ms. Hall that Ontario Hydro labour relations had indicated that he did not require the written authorizations of the construction trade unions in order to perform the work at the B.E.C. with Ontario Rydro tradespersons under the EPSCA collective agreements.

42. When Mr. Morrison and Mr. Casemore attended at Mr. Homan's office, Mr. Roman advised them immediately that he had been told that it was unnecessary for him to obtain written authorizations from the construction trades, and accordingly neither Mr. Morrison nor Mr. Casemore told Mr. Roman of his union's position. Mr. Morrison was once again asked to gather the Chief Stewards of the various construction trades in Mr. Roman's office, which he did. At that gathering Mr. Roman confirmed that it was unnecessary for the Chief Stewards to obtain the written authorizations previously requested. In fact, Mr. Roman did, eventually, receive one or two written authorizations from various trades on the site. However, it was clear from his testimony that the decision to proceed to perform the work at the B.E.C. with Ontario Rydro tradespersons under the EPSCA collective agreements was based upon the advice he had received from Ontario Rydro labour relations, as conveyed by Ms. Hall.

43. Work on the project at the B.E.C. commenced on or about October 24, 1994, with Ontario Rydro direct hires. A number of individuals were referred to the site by way of the various hiring halls of the trades involved in the construction of the steam line. The evidence indicates that five members of the U.A. and two members of the Labourers were referred to the site, by way of EPSCA help requisitions, in order to perform work related to the construction of the steam pipeline.

44. There was a great deal of evidence called by the parties addressing the question of whether the parties applied the EPSCA collective agreements to the work performed at the B.E.C.. As noted above, certain workers were obtained by Ontario Rydro to work on the project by way of the EPSCA office. Further, it is undisputed that Ontario Rydro applied certain provisions of the EPSCA collective agreements to the work at the B.E.C. For example, the employees worked 38 hours per week, as prescribed by the EPSCA collective agreements. They were also paid in accordance with the terms of those same agreements. However, a pre-job conference was not convened before work on the project commenced, as required by the EPSCA collective agreements. Instead, Mr. Roman relied upon the work assignments made on the previous phases of the steam pipeline, a practice which every witness agreed had occurred in the past on occasion.

45. During the course of the construction of the steam pipeline, questions arose regarding certain work being performed on the project. During the month of October, 1994, Mr. Roman and Mr. Morrison spoke regarding the fabrication of "sliders" for the piers upon which the pipeline would sit. Mr. Morrison had heard that these "sliders" would not be manufactured on the site but that their fabrication would be contracted out. Mr. Morrison desired that these "sliders" be manufactured on site in order to keep his union's members employed. Mr. Roman confirmed to Mr. Morrison the next day that Mr. Morrison's information was correct. The work was, in fact, contracted out. The U.A. did not file any grievance under the EPSCA collective agreement respecting that decision by Ontario Rydro.

46. Furthermore, during the month of October, 1994, a dispute arose between the U.A. and the Ironworkers regarding the transport of road crossings from the B.N.P.D. fabrication shops and their placement at the B.E.C. Both trades claimed this work. No formal request under the EPSCA collective agreement for a mark up meeting was made by either the Ironworkers or the U.A. The evidence establishes that Mr. Roman met with Mr. Morrison and Mr. Armstrong, from the Ironworkers, and suggested that a composite crew perform the work. Mr. Morrison resisted this resolution. Ultimately, after reviewing final drawings of the work, Mr. Roman assigned the work in part to the Ironworkers (the loading of the road crossing and assisting in the transport of the road crossing to the site) and in part to the U.A. (the off-loading of the road crossing and the placement of it). Mr. Roman testified that this resolution was considered by Ontario Hydro as being "a good business decision".

47. Mr. Morrison did not file a jurisdictional dispute with the Board in accordance with the EPSCA collective agreement, on the basis that the work was not performed pursuant to that agreement, and that, accordingly, there was no collective agreement under which to claim the work. It was Mr. Roman's (admittedly self-serving) evidence that he felt that he was dealing with this dispute no differently than he would otherwise deal with it under the EPSCA collective agreements. However, as was demonstrated during Mr. Roman's cross-examination, Mr. Roman did not come close to following the work assignment resolution mechanisms set out in the collective agreement that he stated he felt governed by.

48. Notwithstanding this, however, it is evident to us that Ontario Hydro was proceeding at the time under the assumption that the EPSCA collective agreements applied to the work on Phase Four of the steam pipeline. Mr. Roman did not strictly follow the work assignment or mark up procedures contained in the EPSCA collective agreement governing the U.A., but this was clearly the result of the extremely short time frame within which this work was to be completed. We are satisfied that Ontario Rydro was performing this work in accordance with the EPSCA collective agreements, and in particular with the Generations Projects provisions of the agreements. Just as confidently, we are certain that Mr. Morrison, on behalf of the U.A., was well aware of his union's desire and intention to certify Ontario Rydro in the I.C.I. sector of the construction industry, and that he conducted himself in such a manner so as to minimize the suggestion that he was applying the EPSCA collective agreement to the work in question. There is, of course, nothing wrong with this.

49. The work on the steam pipeline progressed until November 17, 1994, the certification application date. On that date, the U.A. and the Labourers both applied to the Board to represent employees of their respective trades employed by Ontario Rydro in the province of Ontario in the I.C.I. sector of the construction industry, and in all other sectors of the construction industry in Board Area 3.

50. There was a significant amount of evidence focused on how and when this information came to the attention of Ontario Rydro. It would appear that early on the morning of November 17, 1994, the Chief Steward of the I.B.E.W., Local 1788, Mr. Bray, attended at Mr. Homan's office at the B.N.P.D. and provided him with what Mr. Roman considered to be a somewhat puzzling message, something to the effect that "his union was not the problem". and that "two other unions were involved". When Mr. Roman tried to clarify Mr. Bray's comments, he was told that the problem was "up the hill" and a reference was made to the I.C.I. sector of the construction industry. Mr. Bray thereupon left Mr. Roman's office.

51. Mr. Roman, slightly mystified by all of this, spoke to Mr. Fitt later that morning regarding the conversation he had had with Mr. Bray. Mr. Fitt had attended at Mr. Roman's office regarding an unknown "problem with the steam line work" at the B.E.C. Later that morning, two separate meetings were held involving some or all of Mr. Cushing, Mr. Jennings, Mr. David Thaw, the Divisional Superintendent at the B.N.P.D., Mr. Fitt and Mr. Roman, with the attendance over the telephone by Mr. Donnelly of Ontario Rydro labour relations, and legal counsel. It was ultimately determined by Mr. Cushing to halt the work at the B.E.C. until the full scope of the "problem" at the B.E.C. was identified. At the time, it appeared that there was some belief on the part of Ontario Hydro management that the I.B.E.W. was involved in the situation.

52. At approximately 12 noon, the Acting General Foreman at the B.E.C. site, Mr. Rodger Urbshott, was instructed by Mr. Thaw to stop all work on the site and to send the men working that day to other work. This direction was carried out by Mr. Urbshott and Mr. Fitt, who travelled to the site. Some work was authorized in the afternoon to secure the site while Ontario Rydro investigated the nature of the "problem" at the B.E.C. As well, the work manufacturing the pipe for the B.E.C. at the pipe fabrication shop on the B.N.P.D. site continued, because the work was being performed at the B.N.P.D., and there was no question regarding the applicability of the EPSCA collective agreements to this work.

53. Ultimately, the work at the B.E.C. was completed in the summer of 1995. It was determined by Ontario Rydro during the previous winter to complete the work using an outside contractor. Drawings were prepared by Ontario Rydro indicating the stage to which the work had been completed to that date. The work was then contracted out by "the B.E.C." to Camphell-Cox Inc., the successful bidder. Its three subcontractors utilized construction trades to carry out the work. In that regard, a mark­up meeting with respect to the project was held on May 31, 1995. The contractor indicated at this meeting that the work would be completed pursuant to the terms of the EPSCA collecttve agreements for Generations Projects. It was the position of the U.A. and the Labourers at this meeting that this work was not properly performed under the EPSCA collective agreements and that it was work in the I.C.I. sector of the construction industry.

54. There was a great deal of evidence directed towards identifying both the nature and the location of the work being performed by the construction trades at the B.E.C. on the certification application date. The evidence before the Board, consisting of Mr. Fitt's notes and recollections of the work being performed on that date, Mr. Morrison's observations while in attendance at the B.E.C. site that morning, the description of the work that was completed on that date, the photographs of the site, and a sketch that was provided by Mr. Morrison of the work in relation to the road allowance, establishes that the work which was performed on November 17, 1994 by members of the U.A. was the placement of a road crossing and the cleaning of the anchor bolts on the concrete piers and the placement of the pipe support base plates (i.e. the "sliders") on the piers which had been previously constructed. Likewise, the two members of the Labourers were assisting in the excavation of the ditch where the road crossing was to be placed, and cleaning the foundations prior to the pouring of the piers. In our view, the evidence establishes that work was performed on both the municipal road allowance and Lot 2 by members of both the U.A. and the Labourers.

(d) Other Construction of Significance

55. During the course of the evidence the Board heard testimony and received exhibit material regarding various other construction work relating to services made available by Ontario Rydro (at reasonable cost recovery) to those businesses which operate in the B.E.C. It is clear from the evidence before the Board that electrical service, sewer and water services (both potable water and water for industrial purposes), a sewage treatment plant, a sewage lagoon and (previously) a temporary fire protection lagoon have been established by Ontario Hydro to support those businesses located at the B.E.C.. For the most part, Ontario Hydro owns the infrastructure involved in providing these services. The Board entertained at times extremely detailed evidence respecting each of these projects.

56. We do not propose to outline the evidence regarding these site services in any great detail. In our view it is unnecessary to do so. As noted above, Mr. Morrison testified, and we accept his testimony, that Ontario Hydro represented throughout his tenure as the U.A. Chief Steward that the two mile administrative boundary had particular significance to the application of the EPSCA collective agreements at the B.N.P.D.. Mr. Thaw, in his testimony, agreed that, in his experience, the geographic scope of the EPSCA collective agreements ended at the Delivery Gate on the power corridor. The evidence adduced respecting other construction work relating to the B.E.C. establishes quite convinc­ingly that the consistent view of Ontario Hydro management, as expressed to Mr. Morrison and other Chief Stewards of the construction trades, was that the EPSCA collective agreements had, as their geographic limit at the B.N.P.D., the two mile administrative boundary.

57. To cite one example briefly, the sewer and watermain construction relating to the B.E.C. was split into nine separate contracts. The contracts were grouped in accordance with whether the construction was within the two mile administrative boundary, or outside of that same boundary. The contracts relating to the infrastructure within the two mile boundary were let by Ontario Hydro in accordance with the Labour Requirements clauses contained in the EPSCA collective agreements. On the other hand, those contracts relating to work outside of the two mile administrative boundary were let by Ontario Rydro without reference to the terms of the EPSCA collective agreements. It is noteworthy that Ontario Rydro owns all of the piping infrastructure located in or about the B.E.C. associated with the sewer and water services.

58. The one exception to this uniform approach by Ontario Rydro would appear to be a paving contract for the 4th Concession Road which runs due east from the B.N.P.D. site. It appears that this contract was let by Ontario Rydro and performed with EPSCA trades, and pursuant to the EPSCA collective agreements, notwithstanding that the road proceeds beyond the two mile administrative boundary. However, the one memorandum placed into evidence which speaks to this contract (Ex. 43) suggests that Ontario Rydro was concerned that the letting of the contract in accordance with the EPSCA collective agreements would "void" its claim that the two mile administrative boundary was the appropriate demarcation point for the application of the EPSCA collective agreements. It was suggested in testimony that there were other "anomalies" of this nature, but no other work was the subject of evidence.

59. As noted above, we are satisfied that the two mile administrative boundary has been and is, in the view of Ontario Rydro, the geographical demarcation point respecting the application of the EPSCA collective agreements at the B.N.P.D. As a practical matter, almost all of the construction work completed in or about the B.N.P.D. and the B.E.C. has been performed in accordance with that principle. We are also satisfied, on the basis of Mr. Morrison's testimony, that Ontario Hydro communicated this view to the Chief Stewards of the construction trades on numerous occasions.

(e) Property Rights In and About the B.E.C.

60. Consistent with the other aspects of these proceedings, the Board heard detailed evidence relating to the property and other rights held by Ontario Rydro in and about the B.E.C.. In particular, the Board heard the evidence of Mr. Robert Waram, the Clerk-Treasurer of Bruce Township, and Mr. Pat Grace, the "Program Manager, Acquisitions and Appraisal, Grid System Real Estate" of Ontario Rydro. In that role, Mr. Grace is responsible for obtaining and maintaining the property rights Ontario Rydro requires for its construction forces to perform the work required. During the course of the evidence the Board was also provided with, and marked as exhibits on consent of the parties, numerous registered plans of subdivision, surveys, licence agreements and other documents which identify the various rights held or enjoyed by persons on or about the B.E.C. site.

61. It was the evidence of Mr. Grace that Ontario Hydro obtains various different types of rights in or about property in order to perform its work. In some circumstances, Ontario Rydro purchases land in fee simple - an example being the purchase of land to build a transmission station. However, in many situations rights of a lesser nature are acquired by Ontario Rydro, including easements, land use permits, licences, and leases.

62. With respect to the acquisition of easements, Mr. Grace stated that the easements held by Ontario Rydro take various forms. Some are specific, project-related easements, whereas others are in perpetuity or for long, fixed terms. A majority of the easements are registered on title against the land subject to the easement, but some are not. In this regard, the cost of registration (most significantly the cost of a survey) typically precludes the routine registration of all of Ontario Hydro's easements. However, the easements are capable of future registration if desirable.

63. It was also noted by Mr. Grace that Ontario Rydro often acquired its property rights after performing the work in question. However, most property rights in favour of Ontario Rydro are in place before its construction forces go onto the property in question. Mr. Grace noted that the licence agreements obtained by Ontario Rydro are not registered on title to the subject property.

64. Moving to the B.E.C. itself, the evidence establishes that Ontario Rydro does not have title in fee simple of any real property on the B.E.C. site, with the exception of a small parcel of land in Lot 18 upon which a water tower is located. Ontario Rydro owns and operates the water tower.

65. Ontario Rydro does have certain rights in property at the B.E.C. as the holder of registered easements in its favour granted by Boiler Beach in November, 1986. These easements are directly related to Phase Two of the steam pipeline, and do not affect or burden the land which is in question before us. Although there have been discussions between Ontario Rydro and Bruce Township for many years respecting the need for easements to be provided to Ontario Rydro to recognize the utilization of Bruce Township land within the B.E.C. (i.e. the road allowance known in part as Farrell Drive) by Ontario Rydro for sewer lines, water lines, and the steam line, no easement documentation has ever been prepared by Ontario Rydro or Bruce Township. In fact, the evidence suggests that for some considerable period of time the question of the need for such documentation has been a live (though not always a pressing) issue between Bruce Township and Ontario Hydro. In any event, it appears from the evidence that the first step towards such agreements - a comprehensive survey of the sewer, water and steam infrastructure under the road allowance at the B.E.C. site - has been authorized by Bruce Township and completed by Ontario Rydro. But no easement documentation of any sort in favour of Ontario Rydro has been prepared by Ontario Rydro or Bruce Township and accordingly there is no documentation between Ontario Rydro and Bruce Township reflecting any easement on the B.E.C. site.

66. That this is, in fact, the case was highlighted quite vividly by a resolution of Bruce Township Council dated December 20, 1994, approximately one month after the certification applications were filed with the Board. On that date, Bruce Township Council passed a resolution in which it is noted that Ontario Rydro had built Phase Four of the steam line across portions of Lots Two, Three and Four of the B.E.C., and at least partially on the Bruce Township road allowance (which is discussed in more detail below). The Township Council agreed to give "temporary approval" to complete the project with the understanding that Ontario Rydro was to provide to the Township, within 60 days of the project's completion, a registered easement agreement. Also to be provided to Bruce Township were "as built" drawings. No such easement documentation or drawings had been provided to Bruce Township as at the dates of the hearing.

67. Ontario Rydro has, since 1985, negotiated two limited licence agreements with Bruce Township. These documents, which are dated October 7, 1985, and August 20, 1987, and are specifically characterized as licence agreements, provide Ontario Rydro with the right to enter on certain property owned by Bruce Township to place road crossings under the land. The first such document allowed Ontario Rydro to place a road crossing under the Bruce Tie Road to accommodate a sewer line. The second document allowed placement of a road crossing in the B.E.C. under an approximate 50 metre by 35 metre portion of Farrell Drive for the installation of Phase Two of the steam pipeline.

68. Furthermore, there are other documents which establish that Ontario Rydro has obtained from the property owners in the B.E.C. a right to construct things - like steam pipelines - over their property. Introduced into evidence were numerous Steam Sale Agreements for heat energy which were executed in June, 1994. These agreements govern the terms and conditions of the delivery of heat energy to the businesses currently located at the B.E.C.. Also entered into evidence were Development Agreements for Heat Energy, again dated in June, 1994, in which property owners in the B.E.C. have agreed with Ontario Rydro regarding the terms and conditions of the potential delivery of heat energy to any business located on site. It was the evidence of Mr. Chuck Edey, the Liason Officer for the B.E.C. representing Ontario Rydro Nuclear, and the Ontario Rydro employee responsible for the B.E.C., that these agreements covered each business and property owner at the B.E.C..

69. Although each of the Steam Sale Agreements is tailored to the needs of the individual business located at the B.E.C., each is, to a great extent, based upon a similar boilerplate document. Each of the Steam Sale Agreements (including one binding Ontario Rydro and Bi-Ax) contains the following clause:

9.3 The Customer hereby grants to 1-lydro the tight at all times during the continuance of this Agreement to use, free of charge or rent, as much of the Customer's lands as Hydro may deem necessary for the supply of Steam to the Customer and other customer [sic] in the BEC. and to accept returned Condensate from the Customer and other customers in the BEC. The location of the lands required for such purpose is to be mutually satisfactory to Hydro and the Customer.

70. The Development Agreement for Heat Energy between Ontario Rydro and Bruce Energy Centre Limited (now Ontario Interlink Industrial Park Limited), does not contain such a clause as that set out above. However, it indicates that heat energy is to be made available to any customer locating at the B.E.C. on a first come, first served basis, and will be provided in accordance with "the steam supply agreement in the form of attachment "A" hereto". Attached to the Development Agreement as attachment "A" is a draft Steam Sale Agreement of the nature of those described above, with a clause 9.3 similar to that outlined directly above, except that it has the following words added at the end of the clause:

and will be subject to appropriate easements."

A Development Agreement for Water and Sewer services between the same two parties has a similar structure, with a similar clause in the draft "Agreement for Water and Sewer" attached to the Develop­ment Agreement. However, Mr. Edey noted in his testimony that these agreements were negotiated and signed by Ontario Hydro and Bruce Energy Centre Limited in order to allow the latter entity to develop the property more easily, and that when an industry located at the B.E.C. a separate contract based upon the draft would be negotiated between Ontario Hydro and the customer. Accordingly, it is evident that neither of the Development Agreements signed by Bruce Energy Centre Limited actually provide rights to Ontario Rydro to access Bruce Energy Centre Limited real property on the B.E.C.. We note here for completeness that the Development Agreements both contain the usual provision found in agreements of this nature that they are to extend to, and bind, the successors and assigns of the parties.

71. In that regard, there would appear to be no dispute that, as at November 17, 1994, the certification application date, Lot 2 of Plan of Subdivision 3R-385 I, being the vacant land between the Bi-Ax plant and St. Lawrence Technologies Inc., was owned by Ontario Interlink Industrial Park Limited. As noted, Lot 1, where the Bi-Ax plant is located, is owned by Bi-Ax International Inc., which is subject to a Steam Sale Agreement containing clause 9.3 identified above.

72. There was substantial testimony called before the Board dealing with the question of the road allowance. It is evident from Plan of Subdivision 3M-I 13 that the real property which constitutes Farrell Drive was dedicated by Boiler Beach to Bruce Township as a public highway on May 15, 1986, when the Plan of Subdivision was registered with the land registry office for the County of Bruce. On May 10, 1994. Bruce Township Council purported to assume Farrell Drive by way of By-Law 94-12. However, it would appear that By-Law 94-12 was erroneously drafted in such a manner as to be incapable of registration; accordingly, By-Law 94-12 was repealed, and Farrell Drive was properly assumed by the Township by way of By-Law 95-11, dated February 28, 1995. There is no dispute that the road allowance dedicated by Boiler Beach to Bruce Township is 35 metres wide. Mr. Waram, the Clerk-Treasurer of Bruce Township, identified Farrell Drive as the only real property owned by Bruce Township at the B.E.C.

73. Mr. Morrison testified that he and Mr. Casemore had attended at the site and measured 17.5 metres from the centre of Farrell Drive towards Lots I and 2, where the construction work on the steam line was being performed on November 17, 1994. It was Mr. Morrison's testimony that the road crossing installed on that date appeared to him to be well within the 17,5 metre road allowance, and that the work on the steamline performed on that date appeared to be well beyond the 17.5 metre road allowance. However, as was brought out in cross-examination, there was no evidence that Farrell Drive itself was paved on the middle of the 35 metre road allowance, and accordingly the drawing which was prepared by Mr. Morrison could well be inaccurate. Ultimately, we do not believe that the determination of the issues before us are influenced by whether Bruce Township or a private owner had title to the real property where the work was performed on the certification application date.

IV. Argument and Reasons for Decision

74. The argument of counsel was lengthy and complicated. Rather than setting out the argument of counsel separately, we feel it to be more effective to integrate the relevant argument with the reasons for our decision, and therefore we do so, directly below.

75. As noted above, the parties focused their arguments on two specific aspects of the recogni­tion provisions of the relevant EPSCA collective agreements; namely whether this work was performed "on Ontario Rydro property", and, if so, whether this work could be described as being "for the bulk power system". Raving regard to our conclusion respecting the issue of "on Ontario Rydro property", it is unnecessary to address the issue of the scope or meaning of the words "for the bulk power system". We note here that an estoppel argument raised by Ontario Rydro in its pleadings was not pursued in argument.

76. As his primary argument, counsel for Ontario Rydro submitted that this issue was not as complicated as opposing counsel were suggesting it was, because there is no dispute that Ontario Rydro owns the infrastructure of all four phases of the steam pipeline, including that phase being completed on November 17, 1994. Accordingly, it was submitted that, giving the word "property" its normal and ordinary meaning, it would encompass both real and personal property, including the steam pipeline itself. The plain and literal meaning of "property" is not limited to real property or land, but extends to "that which belongs to one", which, in this case, includes the steam pipeline itself. If such an interpretation were given to the collective agreements, the only conclusion that the Board could reach would be that the work in question was being performed 'on Ontario Rydro property" on the certifica­tion application date.

77. In support of this interpretation of the collective agreements, counsel referred the Board to numerous sections of the Power Corporation Act, noting that "land" is a defined term in that legislation. It was noted that the word "land" was not defined in the legislation by reference to the word "property", but rather "real property", and that the concept of "property" as encompassing personal property is reflected by certain provisions of the legislation respecting expropriation.

78. Counsel submitted further that the only distinction between Phases One and Four of the steam pipeline is that, on Phase One, when the EPSCA trades built the steam pipeline, they stood on real property belonging to Ontario Rydro. It was noted that Mr. Jim MacKinnon, the Business Manager of the Labourers, testified that he had never before searched a title to see who had owned land before claiming work for his union pursuant to the EPSCA agreement, or before performing such work once awarded to the Labourers. It was asserted that Mr. MacKinnon had, through his conduct, acknowledged that Ontario Rydro did not own all of the land which has supported work awarded to the Labourers under its EPSCA collective agreement, and that this was indicative of how the Labourers had historically interpreted the words "on Ontario Rydro property".

79. We have considered this argument quite carefully. We are of the view that this interpretation of the collective agreement is incapable of being supported, given the totality of the evidence before us.

80. We start with the observation that counsel for Ontario Rydro quite accurately notes that "property", in its plain and literal meaning, can refer to both real and personal property. Given the undisputed testimony that Ontario Hydro owns the infrastructure of the steam pipeline itself, up to and including the terminal isolating valves, it is not an unreasonable argument to assert that the words "on Ontario Hydro property" includes work on personal property owned by Ontario Rydro. The difficulty, however, in interpreting the language in this manner is in squaring it with the interpretation historically adopted by Ontario Rydro itself.

81. As noted above, the documentary evidence undeniably establishes that Ontario Rydro management was of the view that, for the purposes of the B.N.P.D., the geographic limit of the EPSCA collective agreements was that point on the power corridor which coincided with the two mile administrative boundary (or the "delivery gate", as it is now known). Mr. Morrison testified that members of Ontario Hydro management, and in particular Mr. Arnulf Bellstedt, the General Superinten­dent with Ontario Rydro Construction at the B.N.P.D., had represented to him repeatedly that the EPSCA collective agreements have no application beyond the two-mile administrative boundary. The evidence is just overwhelming in that regard. No evidence to the contrary was offered by Ontario Hydro.

82. Keeping all of that in mind, it becomes quite obvious why the second and third phases of the steam pipeline were constructed by Resolute and Butler, respectively, without the use of EPSCA trades. Until the U.A. successfully obtained an I.C.I. certificate from the Board respecting Resolute, the work on Phase Two of the steam pipeline was performed on a non-union basis, without reference to the applicable EPSCA collective agreements. If one adopts the theory of Mr. Bellstedt, and other Ontario Rydro managers, the work on the second and third phases of the steam pipeline was performed in accordance with the terms of the EPSCA agreements, inasmuch as the EPSCA agreements would be inapplicable to the work at the B.E.C., that work being not "on Ontario Rydro property".

83. Similarly, it is difficult, if one adopts the "plain and literal" approach submitted by counsel for the employer, to explain why Ontario Hydro did not perform the work on Phases Two and Three of the steam pipeline with EPSCA trades, and pursuant to the EPSCA collective agreements. A similar observation applies to the sewer and watermain work performed on the B.E.C. site. The sewer and watermain infrastructure is owned by Ontario Rydro. Applying counsel's "literal interpretation" approach, there is no apparent way to justify the utilization of non-union contractors to perform Phases Two and Three of the steam pipeline, given that the actual pipeline worked on was always "Ontario Hydro property". It is significant, in our view, that none of the EPSCA trades involved in the installation of Phase One of the steam pipeline grieved the completion of Phases Two and Three of the steam pipeline pursuant to the EPSCA collective agreements. The EPSCA trades obviously believed, as did Ontario Hydro management at B.N.P.D., that the EPSCA collective agreements did not apply to that work. The U.A. certainly did, because it organized the steamfitters and pipefitters employed by Resolute on Phase Two of the steamline and obtained an I.C.I. certificate from the Board in September, 1986.

84. The distinction drawn in the Power Corporation Act between "land", on the one hand, and "property", on the other, is, in our view, largely unhelpful. There is no doubt that such a distinction can be made; as we note above, outside of the context of the particular relationship between these parties, there is a legitimate distinction to be made between "land" and "property". However, there is absolutely no evidence before us to suggest that the parties, in negotiating the EPSCA collective agreements, made reference to or considered themselves bound to adopt the language contained in the Power Corporation Act. Without evidence of that nature, it is entirely irrelevant how the Power Corporation Act defines or deals with the concepts of "land" or "property". There is simply no reason for us to believe that the parties had any cause to consider the definitions or concepts of "land" and "property" in the Power Corporation Act when they negotiated the relevant provisions of the EPSCA collective agreements. In the absence of evidence of that nature, we can find little reason to interpret the collective agreements in accordance with that legislation.

85. On the evidence before us, we are satisfied that Ontario Rydro management at the B.N.P.D. and the various trades bound by the EPSCA collective agreements in question had a mutual belief that "on Ontario Rydro property" meant that the work in question was to be performed on real property upon which Ontario Rydro had some right or interest. This mutual belief incorporated a long-standing practice of Ontario Rydro, which was acceptable to the construction trades, and is more than an estoppel applicable against Ontario Rydro.

86. As an alternative argument, in the event that the Board were to determine that "on Ontario Hydro property" related in some manner to real property, as opposed to personal property, counsel for Ontario Rydro addressed the question of the scope of the term "property". Counsel submitted that the concept should be broadly interpreted, to include, at minimum, all real property rights that Ontario Rydro would have the authority to exercise under the Power Corporation Act. In counsel's submission, this would encompass any rights acquired by Ontario Rydro to use land. That is, it is argued that if Ontario Rydro were entitled to use another's land, then work on that real property could be said to be work "on Ontario Rydro property" for the purpose of the EPSCA collective agreements.

87. Counsel referred the Board to excerpts from the Power Corporation Act, which are set out below:

48(1). In this section, "right" means any right, interest, way, privilege, permit or easement.

(2) Despite any other Act, where any right has been or is hereafter acquired by the Corporation, in, through, over, under, along, upon, across or affecting any land, unless it is otherwise agreed, the land continues subject to the right for the term thereof and it is binding upon the owner at the time of acquisition and all subsequent owners of the land until expiration or release by the Corporation.

(4) The Corporation, a municipal corporation or a commission mentioned in subsection (3), upon the request of a person intending to acquire an estate or interest in any land, shall make a search of its records and inform the person as to whether or not it has a right that relates to the land that it not registered under the Land Titles Act or the Registry Act.

49. Despite this Act or any other general or special Act, where works of the Corporation have been affixed to realty they remain subject to the rights of the Corporation as fully as they were before being so affixed and do not become part of the realty unless otherwise agreed by the Corporation in writing.

50. Counsel for Ontario Hydro reviewed with the Board the language utilized in the above-referenced statute. He noted that the language, which speaks of "rights", does not speak to the purpose for which the right was acquired, nor does it speak to any restriction regarding how the right was acquired. Counsel submitted that, where Ontario Hydro has acquired the right to build a steam pipeline on municipal lands or lands owned by Ontario Interlink, that right is a "right" for the purpose of section 48 of the Power Corporation Act. Pointing to section 48(4) of the Power Corporation Act, counsel notes that the provision reflects an expectation that Ontario Rydro may maintain a right held pursuant to that section of the legislation where it is not registered. In other words, even non-registered "rights" are effective when held by Ontario Rydro.

51. With regard to the question of whether it is necessary to register these "rights" to make them relevant for the purpose of interpreting the concept of "Ontario Rydro property", counsel submitted that the answer to that question was clearly in the negative. Counsel observed that registration is not itself the creation of rights but rather the public identification of those rights. Any right agreed to between two parties is enforceable as between those parties whether the right is registered or not; however, as between one of those parties and a bonafide purchaser of the land for value without notice of the right, there may be a question as to the effectiveness of the right absent registration, or a legislative provision such as section 48(2) of the Power Corporation Act.

52. Applying these concepts to the case at hand, counsel submitted that the fourth phase of the steam pipeline was built with the right to do so (be it described as a "right", "way", "privilege" or "permit") from all of the relevant landowners. Counsel noted that Bruce Township had given its permission to Ontario Hydro to work on the road allowance, whether or not there was any registered easement on title. It was observed that section 48(2) of the Power Corporation Act did not require that the "right" provided to Ontario Rydro be contained in a document.

53. With respect to the work performed on Lots 1,2, and 3 at the B.E.C., counsel pointed to the Steam Sale Agreements, and the Development Agreement executed in June, 1994, which contained Article 9.3 (or its equivalent), set out above in paragraph 69. These agreements are documentary approvals allowing Ontario Rydro the right to have its property - the steam line - on the private landowner's property. These "rights" are not fully documented or registered. but, submits counsel, in light of section 48(2) of the Power Corporation Act, they do not have to be. The failure to register does not diminish the right granted to Ontario Rydro by those property owners.

54. Counsel for the U.A. disagreed fundamentally with the position taken by Ontario Rydro counsel. It is the position of the U.A. that "Ontario Hydro property" in the EPSCA collective agreements requires Ontario Rydro to have a registerable interest in the property upon which the work is performed. In furtherance of that theory, counsel reviewed a number of real property concepts and definitions. Particularly relevant was the distinction between the concept of a "licence" and an "easement"; the former does not create an interest in the land to which it refers, and the latter, which creates a right over land without exclusive use or possession of it, does. It was submitted that Ontario Rydro failed to appreciate the distinction between these two concepts, and that the Steam Sale Agreements simply granted Ontario Rydro a licence to build and maintain a steam pipeline, rather than an easement or a registerable property right. Similarly, counsel for the U.A. described the approval from the Township of Bruce as "the right to trespass" - which is itself nothing more than a licence. Licences pass no proprietary interest in the land, grants a privilege only, and cannot be registered on title.

55. With respect to this approval, counsel reviewed sections 261 and 262 of the Municipal Act, R.S.O. 1990, c. M. 45, as amended, which speak to the issue of what constitutes a public highway. Section 261 provides that all roads dedicated by the owner of land to public use are common and public highways. However, case authorities provided by counsel (in particular, Gregory v. Edwards and Corporation of Village of Hastings 1962 CanLII 237 (ON HCJ), [1962] O.R. 993, and Onyschuk v. Silver Harbour Acres Ltd., (1984), 1984 CanLII 2030 (ON HCJ), 49 O.R. (2d) 762) were said to stand for the proposition that to establish a "dedication" of land, two different acts must themselves be established; first, that the property owner intended to dedicate the land as a public highway, and second, that the relevant municipal authority has accepted the dedicated property as a highway.

56. Applied to the facts of our case, counsel submitted that there had been no assumption by Bruce Township of Farrell Drive as a public highway as at the certification application date, inasmuch as the documentation relating to the assumption of the road had not yet been executed or registered in the appropriate registry office.

57. Counsel for the U.A. also brought the Board's attention to section 1(1) of the Statute of Frauds, R.S.O. 1990, c. 5. 19, which reads as follows:

Every estate or interest of freehold and every uncertain interest of, in, to or out of any messages, lands, tenements or hereditaments shall be made or created by a writing signed by the parties and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect.

Here, submitted counsel, no such written record of any easement had been created, and accordingly the effect is the creation of an estate at will; effectively, a licence.

96. Counsel for the Labourers elaborated a slightly different view of the law than did other counsel. Counsel relied upon the analysis of counsel for the U.A., but asserted that "on Ontario Rydro property" in the recognition clause of the Labourers' EPSCA collective agreement refers to "a land law theory rooted in the soil", and does not include other rights or forms of rights in relation to property. Put more succinctly, counsel for the Labourers stated that the language refers to "land owned by Ontario Hydro in fee simple".

97. As noted much earlier, the recognition clause of the EPSCA collective agreement binding the Labourers contains language which arguably speaks to the issue of the content of the words "on Ontario Hydro property"; in particular, article 1.2 which reads as follows:

1.2 The work described in Section 1.1 shall also include work on property acquired by Ontario Hydro for:

(a) the supply of aggregate and concrete used in the construction of said facilities; and

(b) ancillary material yards which are defined as property acquired by Ontario Hydra for the storage of materials to be used on a project by Employers.

It is argued that article 1.1, when read in context with article 1.2 must be read to refer to real property.

98. We have carefully considered all of the arguments of counsel. We do not believe that it is necessary to identify exactly what interest or interests in real property must be held by Ontario Rydro in order to establish that work is done "on Ontario Rydro property" for the purpose of either EPSCA agreement before us. Assuming, without deciding, that it is possible to establish that work was performed "on Ontario Rydro property" by establishing that the work in question was performed on real property in which Ontario Hydro has acquired a lesser interest in (or right of access to) the property than ownership in fee simple, it is evident to us that, in the circumstances before us, no such lesser interest in or right of access to land had been, at the time of the certification application date (or, on the evidence, even after that date) acquired by or provided to Ontario Hydro, registerable or otherwise.

99. As noted above, we are satisfied that on the certification application date, work was performed by members of the two applicants on both a road crossing on the B.E.C., and on the piers and foundations for the steam pipeline on Lot 2 at the B.E.C. The road crossing was installed on the municipal road allowance, and Lot 2 was owned at the time by Ontario Interlink. These are the relevant pieces of real property to which we must direct our attention.

100. With respect to the road crossing, it is evident that Bruce Township had not properly registered a by-law with the local registry office assuming the municipal road allowance as at November 17, 1994. However, we question whether as a matter of law it was necessary to do so, for the purposes of this proceeding. It is clear that Boiler Beach had dedicated the entire road allowance to Bruce Township on May 15, 1986 by way of the dedication contained in the owner's certificate on Plan of Subdivision 3M-113 registered by Boiler Beach with the Township on that same date. Section 261 of the Municipal Act, R.S.O. 1990, c. M.45, as amended, reads as follows:

Except in so far as they have been stopped up according to law, ... all roads dedicated by the owner of land to public use ... are common and public highways.

It appears from this provision of the Municipal Act that, as at May 15, 1986, Farrell Drive and the road allowance dedicated to Bruce Township by Boiler Beach was a "common and public highway" which, in accordance with section 262 of the Municipal Act, was "vested" in Bruce Township. As observed by the Court in Gregory v. Edwards and Corporation of the Village of Hastings, cited above, the consent by Bruce Township to the registration of the registered Plan of Subdivision 3M-113 with the dedication of Farrell Drive contained therein is acceptance by Bruce Township of the highway shown on the plan.

101. In this regard, we disagree with the summary of the law regarding the "dedication" of land submitted by counsel for the U.A.. In Gregory v. Edwards and Corporation of the Village of Hastings, cited above, the Court noted, at pages 1002 and 1003, that the land in question did not come within the language of what is now section 261 of the Municipal Act because there had previously been no dedication of the property by any owner of property at any time. This is a different situation. There has been, since May 15, 1986, an obvious dedication of real property to Bruce Township by Boiler Beach, the owner of land.

102. Accordingly, we conclude that the road allowance at the B.E.C. was, at all relevant times, vested in Bruce Township. However, even if we are wrong, the end result is the same, for the purposes of these proceedings. Whether Bruce Township owned the road allowance on November 17, 1994, or Boiler Beach continued to own the property constituting the road allowance on that date, neither Bruce Township nor Boiler Beach had provided Ontario Rydro with any property right or right of access to its property to build a steam line (or, for that matter, to build anything) on the road allowance as at that date. The absolute best case scenario that can be established by Ontario Rydro is that, as at the certification application date, Bruce Township was aware of the construction of Phase Four of the steam pipeline and did not preclude Ontario Rydro from doing necessary construction work on the road allowance. There is absolutely no evidence at all before us that Boiler Beach had any knowledge of the work being performed on Phase Four of the steam pipeline.

103. A similar situation applies with respect to the owner of Lot 2, Ontario Interlink. We have discussed, above, the Development Agreements between Ontario Rydro and Ontario Interlink (or its predecessor, Bruce Energy Centre Limited), and the clauses contained in the respective agreements regarding access to property. There is absolutely nothing in either of those agreements which establishes that Ontario Interlink, at any time, provided Ontario Rydro with any property right or right of access to its property - specifically Lot 2 - to build a steam pipeline. Furthermore, there is no evidence before us to suggest that Ontario Interlink was aware of the construction of the steam line across its property at Lot 2 of the B.E.C.. However, assuming that Ontario Interlink was aware of the construction of the steam line, it is in the same position as Bruce Township - that is, it merely did not preclude Ontario Rydro from doing the construction work on Phase Four of the steam pipeline on its property.

104. But how far does this take Ontario Rydro, for the purposes of this proceeding? Section 48 of the Power Corporation Act, set out above in paragraph 87, does not advance its case at all, because what that provision does is provide that, once in possession of a "right" (as defined in that section), the land continues subject to that right for as long as the right is agreed to continue, and the right binds subsequent owners of the real property. It does not provide that the land is "Ontario Hydro property" for the purpose of the EPSCA collective agreements. All that the legislation really states is that certain concepts (rights, interests, ways, privileges, permits or easements) are "rights" for the purposes of the Power Corporation Act.

105. On the evidence before us, the very best that Ontario Rydro could establish is that it had implied permission to use Bruce Township real property - the road allowance - and the real property owned by Ontario Interlink - Lot 2 - for the purpose of installing Phase Four of the steam pipeline. In our view, something more is required than an implicit permission to utilize real property in order to constitute that real property as "Ontario Rydro's" for the purposes of the EPSCA collective agreements. In our view, the work in question could not, therefore, have occurred "on Ontario Hydro property" for the purposes of the EPSCA collective agreements.

V. Disposition

106. We are of the view that the employees who form the basis of the bargaining units sought by each of the applicants were not represented by either of the applicants under its respective EPSCA agreement on the certification application date. Accordingly, the applications are not barred from proceeding for that reason.

107. The parties are directed to contact the Registrar's office in order to set further dates to consider the remaining issues in dispute including, if necessary, the identity of the applicant in Board File 2947-94-R.

108. We are seized of these proceedings.