[1998] OLRB REP. SEPTEMBER/OCTOBER 825
5019-97-U Edward G. Lothman, Applicant v. Power Workers' Union (PWU) and Ontario Hydro, Responding Parties
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; September 18, 1998
This is an application under section 96 of the Labour Relations Act, 1995 ("the Act") alleging a violation of section 74 of the Act.
The respondent trade union ("the Union") and the respondent employer, Ontario Hydro, have objected to the jurisdiction of the Board to hear this matter on the basis that the nuclear facilities of Ontario Hydro, where the applicant worked, was, at the time of the events giving rise to the complaint, an employer subject to Federal and not Provincial jurisdiction for labour relations purposes and therefore the applicant was an employee under the Canada Labour Code (the "Code"). The responding parties did not dispute that the Ontario Labour Relations Board now has the jurisdiction to hear complaints under section 74 of the Act involving Ontario Hydro's nuclear facility, but argue that jurisdiction does not apply to events which took place prior to April 1, 1998. The Union also submits that this application should be dismissed for delay.
The position advanced by the responding parties arises out of the Supreme Court of Canada's decision in Ontario Hydro v. Ontario Labour Relations Board et al 1993 CanLII 72 (SCC), [1993] 3 S.C.R. 327; (1993) 107 D.L.R. (4th) 457. In that decision the Court held that the Code and not the Act applies to employees of Ontario Hydro who are employed on or in connection with nuclear facilities that come under section 68 of the Atomic Energy Control Act. The applicant does not dispute that the decision applies to him and therefore does not dispute that his employment relationship was subject to the Code at the time the events giving rise to this application occurred.
Following the Court's decision, the Governor in Council passed a Regulation under the Code to exclude "employment on or in connection with a nuclear facility" from the Code. The Regulation, which came into force on April 1, 1998, provides that the Labour Relations Act, 1995, and the Board's Rules of Procedure, as they are amended from time to time, apply to such matters.
Section 5 of the Regulation is the only transitional provision in the Regulation. It provides:
5.5 Any proceeding instituted before the Canada Labour Relations Board before the day on which these Regulations come into force shall be continued as if these Regulations had not been made.
- The duty of fair representation established by the Code (section 37) is similar to that contained in section 74 of the Act. However, section 97 of the Code has no equivalent in the Act. It states:
97.(l) Complaints to the Board - Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that
(a) an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has contravened or failed to comply with subsection 24(4) or 34(6) or section 37, 50, 69, 94 or 95; or
(b) any person has failed to comply with section 96.
(2) Time for making complaint - Subject to subsections (3) to (5), a complaint pursuant to subsection (1) shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the actin or circumstances giving rise to the complaint.
(3) Consent of Minister - Except with the consent in writing of the Minister, no complaint shall be made to the Board under subsection (1) in respect of an alleged failure to comply with section 50 or paragraph 94(3)(g) or 95(a) or (b).
On May 19, 1998 the Board directed the applicant to respond to the jurisdictional issue raised by the responding parties. On June 8, 1998 the applicant filed submissions in which he advised that the Union had referred him to this Board and that a receptionist at this Board assured him that he was applying to the correct place. The applicant urged the Board not to dismiss his complaint on a "technicality".
It is clear that all of the events which form the substance of the applicant's complaint took place between October 1995 and November 1997 at a time when Ontario Hydro was, in relation to the applicant, an employer under Federal jurisdiction. The Union's duty to represent the applicant at that time was therefore established by the Code. The issue before the Board is whether it can either apply the duty of fair representation of the Code or whether section 74 of the Act can be said to have retrospective application on these facts, so that it applies to the period in question.
A similar issue was in front of the Board in David E. Smith, [1995] OLRB Rep. June 893. That case involved an allegation that the Ontario Public Service Employees Union ("OPSEU") failed to represent the applicant pursuant to what was then section 69 of the Act (now section 74 of the Act). At the time of the facts giving rise to the complaint, the duty of fair representation owed by OPSEU to Mr. Smith arose from section 30 of the old Crown Employees Collective Bargaining Act ("old CECBA"). Any complaints respecting that Act were to be made to the Ontario Public Service Labour Relations Tribunal. Old CECBA was repealed effective February 14, 1998 and was replaced by the new Crown Employees Collective Bargaining Act ("new CECBA") which transferred jurisdiction over public sector labour relations in Ontario to the Ontario Labour Relations Board. Since Mr. Smith brought a complaint to the Ontario Labour Relations Board about events which took place when the Board did not have jurisdiction over the matters in question, he faced the same kind of issue faced by the applicant in this case.
The Board in David E. Smith, supra, held that it did not have jurisdiction to hear the complaint. The Board stated as follows:
It is the applicant's position that the provisions of the Labour Relations Act apply to his complaint. What Mr. Smith seeks, effectively, is that the Board apply section 69 to events which occurred at a time when the old CECBA, and not the Labour Relations Act applied to those events, and to determine questions of fact and law arising under the old CECBA.
In my view, there are essentially two ways in which the Board can have jurisdiction over this complaint. It can have jurisdiction because it is a matter arising under the Labour Relations Act; or, it can have jurisdiction because the Board has been given the power to apply the provisions of the old CECBA and the provisions of the old CECBA in question survive the repeal of the old CECBA as a whole. I find neither ground present in this case to support the Board's jurisdiction. There is nothing in the new CECBA which states that the Labour Relations Act can have any retrospective effect with respect to the rights of those persons formerly under the old CECBA and now under the Labour Relations Act. Both the old CECBA and the Labour Relations Act speak in the present tense and, like all statutes, are presumed to apply to events as they arise. To apply section 69 retrospectively to events prior to February 14, 1994 would be contrary to a basic common law presumption of statutory interpretation, that statutes are not intended to have retrospective application (see, for instance, Re Latif and Canadian Human Rights Commission, (1979), 1979 CanLII 4045 (FCA), 105 D.L.R. (3d) 609 referred to by counsel for the union, and the reference within to Maxwell on Interpretation of Statutes, 12th ed.(1969), p.2 15)
Further, given that the Board is a statutory tribunal, it can only exercise the powers granted to it by statute. Although it was not argued by the applicant that the Board ought to deal with this complaint by applying section 30 of the old CI3CBA (since it was his position that section 69 of the Labour Relations Act applies), I am satisfied in any event that nothing in the Labour Relations Act or the new CECBA gives the Board the power to apply section 30 of the old CECBA.
I am mindful of the fact that in the new CECBA, the Legislature has put in place specific transitional provisions arising out of the repeal of the old CECBA. For instance, in section 59(2), the Act states that despite the repeal of the old CECBA, the Tribunal is continued for the purposes of disposing of "any matters in respect of which an application was made to the Tribunal before the repeal of the old Act." In this very specific way, the Legislature has recognized and preserved the ability of parties who were already before the Tribunal to achieve a final determination of their dispute. The fact that the new CECBA contains these and other similar provisions suggests that transitional problems were considered by the Legislature. It was open to the Legislature to provide that upon the passage of the new CECBA, the Labour Relations Act applied to events which occurred prior to February 14, 1994. It did not do so. It was further open to the Legislature to provide that the Labour Relations Board could hear and determine duty of fair representation issues which arose under the old CECBA, and apply the provisions of the old CECBA. Again, it did not do so. This is quite a different case from Toronto Area Transit Operating Authority, [1994] OLRB Rep. July 943, where the events at issue arose after the passage of the new CECBA, and section 57(1) of the new CECBA continued the provisions of the old CECBA to those sorts of events. I find in this case that the Labour Relations Board is without jurisdiction in this matter, because the Labour Relations Act cannot apply to these events and the Board has no authority to apply section 30 of the old CECBA.
It could be argued that such a result might work an unfairness, leaving some litigants without a procedure for redress. For instance, it may be the result of my findings that if a union violated section 30 of the old CECBA a day or a few days before the repeal of the old CECBA, and there was no practical possibility of filing a complaint to the Tribunal over this violation, then neither is there the legal possibility of filing a complaint to the Board. These, however, are not the facts before us. In this case, Mr. Smith had ample time even before the repeal of the old CECBA within which to complain of these matters to the Tribunal before February 14, 1994. The Board is unaware of any potential litigant which presents these hypothetical facts and it is therefore not apparent that any unfairness has, in fact, resulted from this statutory framework. Further, even if that were the result, it is a result which flows from legislation. The Board cannot change it.
The circumstances and argument in David E. Smith are the same as the ones before the Board in this case. There are two ways in which this Board can have jurisdiction over Mr. Lothman's complaint. Either this Board has jurisdiction to hear Mr. Lothman's complaint because it is a matter arising under the Act, or it has jurisdiction because this Board has been given the power to consider and apply the provisions of the Code. There is nothing in the Federal Regulation or the Act which confers jurisdiction in either of these ways. Furthermore, because of section 5 of the Regulation it is clear that transitional issues were considered by the Governor in Council. It was open to the Governor in Council to confer on this Board the authority to deal with issues arising before the passing of the Regulation. However, it did not do so.
There is little doubt that there may be cases in which this decision could lead to unfairness and deprive an applicant of a remedy for a respondent's breach of the law. However, that unfairness does not exist in this case. As in David E. Smith, the applicant in this case had ample opportunity, approximately 5 months, to file a complaint against the Union under the Code. In fact, had the applicant complained to the Canada Labour Relations Board within 90 days, as required by section 97(2) of the Code, his complaint could have continued as a result of section 5 of the Regulation.
The applicant may feel that there is some unfairness in this result since he asked the Union where he might go to file a complaint against it. The applicant did not advise the Board when he sought the Union's advice about where to file the complaint. In any event, this perceived unfairness results from the absence of statutory jurisdiction to deal with the complaint. The Board cannot take jurisdiction over a matter simply because it might be unfair for the Board not to do so. It is also the case that had the applicant made his complaint within the time required by the Code, there would be no jurisdictional issue.
Finally, it is clear that this Board cannot assume jurisdiction over a matter because of assertions made by one of the parties, or by "assurances" made by Board staff, even assuming such statements were made. Nor is the Board's jurisdiction a "technicality", as asserted by the applicant. The Board is a creature of statute and it may only exercise the powers conferred upon it by statute. The Board does not have the authority to extend its jurisdiction over matters that fall outside of its statutory mandate.
As a result of my decision regarding the Board's jurisdiction to hear this matter, it is unnecessary for me to deal with the Union's alternate argument that this application should be dismissed for delay.
This application is, therefore, dismissed.