United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 v. The Sarnia Construction Association, 1999 CanLII 19502

[1999] OLRB REP. SEPTEMBER/OCTOBER 884

1946-98-PR The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663, and International Brotherhood of Electrical Workers, Local 530, Applicants v. The Sarnia Construction Association, as agent for Bayer Inc., Dow Chemical Canada Inc., Nova Chemicals Canada Limited, Imperial Oil Limited and Transalta Corporation, Responding Parties

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; September 30, 1999

1. This is an application to challenge a proposed project agreement. The Board, by decisions dated September 3 and August 31, 1999 described the issues in dispute and directed the parties to have all of their written submissions to the Board by September 20, 1999. The Alternate Chair had authorized me to sit alone to hear and determine this matter pursuant to section 1 10(14)(a) of the Labour Relations Act, 1995, S.0. 1995, c. 1, as amended, (the "Act").

2. The Board, in its decision in this matter dated September 3, 1999, described the two issues that remained in dispute in this application in the following way:

i) The issue is therefore whether the 10 days referred to in section 163.1(9) means 10 calendar days, in which case the last day to have made the application would have been August 26, 1999 or 10 working days (or 10 days exclusive of Saturdays, Sundays and holidays) in which case the last day to make this application was August 30, 1999, the day on which it was, in fact, made.

ii) What does each party say the appropriate order under section 163.1(9) should be?

If it is appropriate to do so (and it may not be), how would the Board give effect to paragraph 3(i) of section 163.1(9)?

3. In paragraph 3 of that decision, the Board wrote:

"The Board received notice that the proposed Project Agreement had been approved by the requisite number of bargaining agents (60% of the bargaining agents on the list of bargaining agents created pursuant to section 163.1(1) 1 of the Act; see section 163.1(8) 3) on August 16, 1999 as contem­plated by section 163.1(8) 5. On August 27, 1999, the responding parties gave notice to the parties described in section 163.1 (13) and to the Board that the Project Agreement is in force pursuant to section 163.1(11)."

4 By letter dated August 27, 1999, counsel for the International Brotherhood of Electrical Workers, Local 530, ("Local 530") advised the responding parties that the notice given by the responding parties that the proposed project agreement was in force was premature, as the period for filing the challenges to the agreement had not expired. Counsel for Local 530 sent a copy of that letter to the Board. The receipt by the Board of that letter was the first written indication given to the Board that a union was considering a challenge to the proposed project agreement.

4. Counsel for the responding parties submits that the proposed project agreement came into force by operation of section 163.1(10) of the Act. That section provides:

"A project agreement comes into force upon the Board making an order declaring that the proposed project agreement is in force or, if the project agreement is not challenged under subsection (9), upon the expiry of the time period for making such a challenge."

It is clear that a project agreement can come into force under the Act in one of two ways: either the Board makes an order declaring that the proposed project agreement is in force or the proposed project agreement comes into force if it is not challenged under section 163.1(9) of the Act.

5. In order to challenge a proposed project agreement, the challenging bargaining agent must be one that did not give notice of approval of the proposed project agreement and it must give notice to the Board of its challenge within 10 days of the Board's receipt of a notice that the requisite number of bargaining agents had approved the project agreement. All parties agree that the requisite notice of approval contemplated by section 163.1(8) 5 was received by the Board on August 16th. It is also clear that the first written communication to the Board from either of the applicants in connection with their challenge was made on August 27, 1999, 11 days after August 16, 1999.

6. The first issue before the Board is therefore whether the project agreement came into force because a bargaining agent did not challenge it before the expiry of the time period for making such a challenge. That requires the Board to determine whether the time period stipulated in section 163.1(9) for giving notice of a challenge to a project agreement is 10 days, as counsel for the responding parties submits, or 10 days, exclusive of Saturdays, Sundays and holidays, as the two counsel for the applicants submit. The determination of that issue is a matter of interpreting the words of the Act.

7. Counsel for Local 530, in detailed submissions, sets out the facts she submits are relevant to the determination of that first issue between the parties. Rather than paraphrase her factual submis­sions, they are set out below:

"The current challenges under section 163.1(9) are the first since the inclusion of the project agreement provisions in the Labour Relations Act in 1998. As a result, there is no precedent for the filing of the challenges. In contrast to most applications under the Act, the Board's new Rules of Procedure contain no specific guidance as to the form or procedure to be followed when filing a challenge to a project agreement.

The event that triggers the commencement of the 10-day period within which a challenge is to be filed is the receipt by the Board of Notice of Approval of the agreement. As a result, to determine when the 10-day period commences one must ascertain from the Board the date upon which the notice was received. Obviously this information would be obtained from the Registrar of the Board and not from a panel of the Board.

Faced with the lack of precedent for the filing of the challenge and the need to determine the date the Board received the Notice of Approval, the applicant contacted the office of the Registrar of the Board. Counsel made the call to Deputy Registrar Patricia Grenier towards the end of the week of August 16, 1999 and left a message advising the IBEW, Local 530 was challenging the Sarnia project agreement and inquiring as to the date of receipt of the notice and the method that that [sic] Board would employ in calculating the 10-day period. Counsel specifically asked whether "days" in section 163.1(9) referred to calendar or working days and requested confirmation of the deadline for the filing of the challenge. A response to the inquiry was received within a day or two. Ms. Grenier advised that the Board had received the Notice of Approval on August 16, 1999 and stated that the time period for the challenge referred to working days, i.e. days upon which the Board was open. Mr. Grenier advised counsel that the deadline for the filing of the challenge was therefore August 30, 1999.

At the time that the applicant received the representation from Ms. Grenier as to the deadline for filing the challenge neither 10 calendar days nor 10 working days had yet passed. Had the applicant been advised that the challenge must be made within 10 calendar days, the applicant easily could have given written notice to the Board by August 26, 1999. Instead, the applicant relied on the representation of Ms. Grenier and waited until August 30, 1999 to file the final written challenge in order to include full calculations as to the impact of the proposed agreement, which calculations were not completed until August 27, 1999. Neither the Act nor the Rules prescribe the form or the content of a challenge to a project agreement, however, and it would therefore have been possible for the applicant to file a simple letter with the Board by August 26, 1999 advising of its challenge. Indeed, when the proponents of the agreement purported to give notice on August 27, 1999 that the agreement was in effect, IBEW, Local 530 did just that (see letter dated August 27, 1999 to Board Registrar, copy attached).

It is also important to note that the fact that the IBEW, Local 530 intended to challenge the agreement was well known in the Sarnia construction community. At its general meeting on August 3, 1999 IBEW, Local 530 passed a motion calling for the filing of a challenge in the event that the project agreement was rejected by the applicant but approved by a majority of the unions affected. News of this motion was circulated widely in the community and it is not plausible that representa­tives of the proponents of the agreement or at least their agent, the Sarnia Construction Association, were unaware of the impending challenge."

8. While counsel for the responding parties did not explicitly agree with the facts alleged by counsel for Local 530, he did not appear to take issue with those allegations of fact, and therefore, I am prepared to assume that the facts relied on by Local 530 are proved and true for purposes of dealing with this matter.

9. Counsel for Local 530 submits that the term "days" in section 163.1(9) of the Act means days exclusive of Saturdays, Sundays and holidays. Counsel points out that the Act does not contain a definition of the term "day" and no such definition is found in the Interpretation Act, R.S.O. 1990, c. I. 11. She does rely on section 10 of the Interpretation Act to submit that the interpretation of the word "day" must be given a "...fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act, according to its true intent, meaning and spirit."

10. Counsel acknowledges that the Act in some sections explicitly states that Saturdays, Sundays and holidays are excluded from a period of time expressed in days. She says that exclusion appears in only two sections, 8 and 63. That is not correct. In addition to the specific exclusion of Saturdays, Sundays and holidays in the time periods found in sections 8(5) and 63(9), sections 7(14) and 8.1 (3) also specifically exclude Saturdays, Sundays and holidays from the time periods contained in those sections. The Act also contains other relatively short periods of time where Saturdays, Sundays and holidays are not excluded from the calculation of the time period. Counsel for the responding parties cites sections 17, 20 and 43(2) as examples.

11. In addition, section 133(6) of the Act, referred to by counsel for Local 530, provides for a 14 day time period within which the Board must schedule a hearing. Counsel for Local 530 goes on to state:

"Although section 133(6) states simply that the Board will hold a hearing 'within 14 days after receipt of the referral' it is now the practice of the Board in calculating the date for the hearing to count only those days on which the Board is open (i.e. excluding Saturdays, Sundays and statutory holidays).

Counsel is mistaken about the Board's practice in scheduling matters under section 133 of the Act. She does not cite a Board decision, policy statement or any other communication from the Board to the labour relations community in which the Board has indicated that its practice with respect to scheduling the first day of hearing in a referral of a grievance to the Board for determination under section 133 has changed or that the Board does calculate the 14 day period in section 133(6) by excluding Saturdays, Sundays and holidays.

12. The Board's scheduling practice in section 133 matters is well known. Since section 133 was added to the Act in 1975, (see section 112a of The Labour Relations Act, R.S.O. 1970, c. 232, as amended) the Board has scheduled the first day of hearing of the referral 14 calendar days after the filing of the referral with the Board, except where that would result in the hearing taking place on a holiday, in which case it is set for the next day the Board is open. (That result is expressly contemplated by section 28(h) of the Interpretation Act.) Where, however, the applicant (or on occasion, the parties) has requested that the hearing be scheduled at a later date and waived the fourteen day time limit stipulated under the Act, the Board has acceded to that request.

13. In addition to the time periods in the Act cited by counsel for the responding parties, regard must also be had to other time periods found in the construction industry provisions of the Act which do not exclude Saturdays, Sundays or holidays and are generally shorter than analogous time periods found in other sections of the Act. See for example, section 129(1) where parties in the construction industry are obliged to meet and bargain within five days of the notice to bargain being served as opposed to within fourteen days under section 17 and 129(4) where a conciliation board established to deal with a dispute in the construction industry must deliver its report to the Minister within fourteen days of its first sitting as opposed to within thirty days under section 34(1). There are several other relatively short time periods under the construction industry provisions of the Act within which certain actions must be taken. See for example, section 147(2) [not less than 15 days' notice by a parent trade union of an alteration of a local trade union's jurisdiction], 165(4) [filing the certificate of compliance with respect to votes relating to provincial bargaining units or provincial agreements within five days of a vote] and 165(7) [making a complaint to the Minister about the conduct of a vote relating to provincial bargaining units or provincial agreements within 10 days of a vote].

14. Counsel for Local 530 suggests that because the Board's practice with respect to section 133 matters is to calculate the fourteen day period as excluding Saturdays, Sundays and holidays, it is "far from clear that the obvious interpretation of the word 'days' in section 163.1(9) is calendar days.

The Board's policies and its Rules of Procedure and the requirement from the Interpretation Act that the term be given a 'large and liberal' interpretation consistent with the real intent of the legislation all argue for the more generous definition, i.e. working days." Since the Board's consistent practice with respect to section 133 matters is to use calendar and not working days in determining when a hearing will be scheduled, counsel's argument is weakened considerably.

15. Counsel for Local 663 appears to support the submissions on timeliness made by Local 530. Counsel for Local 663 stated in his written submission on this issue:

"It is the position of the UA, Local 663 that the term 'day' as used in ss. s. 163.1(9) refers to a 'day' that the OLRB is not [sic] open for business and thus excludes Saturdays, Sundays and holidays. This is consistent with the definition of day as found in the Board Rules of Procedure, ss. 1 c.) and s.6. As noted at para. 5 of the decision, where the Act refers to short time periods, such a 2 day time period in ss. 7. (14), a 5 day period in s.8(5), a 2 day period in s.8.l(3) the Act excludes Saturdays, Sundays and holidays, and thus when dealing with a time period of 10 days, it would be consistent with the scheme of the Act to conclude that such 10 days also excluded Saturdays, Sundays and holidays. In any case when the Sarnia Construction Association provided notice by fax that the Project Agreement was in force on Aug. 27, 1999, it was advised by the IBEW that a challenge would be forthcoming and thus there is no prejudice to the Association, from a labour relations perspective, to define the work 'day' in s.163.l(9) as excluding Saturdays, Sundays and holidays."

16. Local 663 states that the term "day" in section 163.1(9) refers to a day that the Board is not open for business. This is obviously an error, since that submission would mean that one should count only the days that the Board is not open in determining the length of time within which notice had to be given. I assume counsel meant that the term day means a day that the Board is open for business. While that interpretation would be consistent with the Board's Rules, the Rules which specifically define a number of terms, including the word "day", state that the definitions apply to the Rules. The definitions in the Rules do not purport to apply to those terms when they appear in the Act. The time period in issue is set out in the Act, not the Rules, and the Board cannot by its Rules change the time periods contained in the Act.

17. The Board's Rules establish the practices and procedures used by the Board in dealing with matters that are properly before it. Sections 110(17) of the Act provides:

"The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable."

There is obviously interplay between the Board's Rules and the Act. Some provisions of the Act refer to the Board's Rules for determining when certain things must be done. For example, sections 7(11) and 63(3) require the applicant trade union in a certification proceeding and the applicant employee in a termination of bargaining rights proceeding to deliver a copy of their application "by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board." In those cases, the Board must apply its rules in determining whether the application was properly made under the Act. The Board has the power to extend the time under the Rules for the delivery of the certification or termination application, as the statutory require­ment for delivery explicitly states that it is governed by the Board's Rules. See Associated Contracting Inc., [1998] OLRB Rep. Nov./Dec. 903 at 909-9 10.

18. While there are a number of Rules dealing with construction industry matters, there are no Rules that explicitly govern applications made under section 163.1(9) of the Act. Thus, lam of the view that the Board's Rules have no relevance whatever in determining the timeliness issue that is raised in this application.

19. Counsel for Local 663 also suggested that because the Act explicitly excludes Saturdays, Sundays and holidays in the short time periods set out in sections 7(14), 8(5) and 8.1(3), the Board should also interpret the 10 day time period in section 163.1(9) as also containing the exclusion of Saturdays, Sundays and holiday. I disagree. In interpreting a statute, one should give the same word the same meaning throughout the statute. See Regina v. Zeolkowski, (1989), 1989 CanLII 72 (SCC), 61 D.L.R. (4th) 725 at 732 (S.C.C.). This principle of statutory interpretation is set out in Dreidger on the Construction of Statutes, 3rd ed.) at page 163:

"It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a particular purpose or meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that where a different form of expression is used, a different meaning is intended."

20. A number of provisions in the Act define periods of time by a number of days. When the legislature wanted to exclude Saturdays, Sundays and holidays from the calculation of a period of time set out in the Act, it said so. If the legislature had intended the ten day period of time in section 163.1(9) to be exclusive of Saturdays, Sundays and holidays, it could have inserted that phrase in that section in the same way that phrase was inserted in section 8.1(3) when it was added to the Act at the same time section 163.1 was added as part of the Bill 31 (Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8) amendments to the Act. This principle is also discussed in Dreidger on the Construction of Statutes, (3rd ed.) at page 170:

"One of the most striking features of legislative drafting is its avoidance of stylistic variation. As much as possible, drafters strive for uniform and consistent expression. Once a pattern of words has been devised to express a particular purpose or meaning, the pattern is used for this purpose or meaning each time the occasion arises. This practice of consistent expression creates expectations in the reader that may form the basis for an implied exclusion argument."

21. In giving the words of the Act a "...fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act, according to its true intent, meaning and spirit.", one must have regard to the structure of the Act and the purpose of the provision. The construction industry provisions of the Act generally contain shorter time periods for taking action. The Act permits the Board to make rules to expedite proceedings in respect of the construction industry provisions. (See section 110(18) 4.) I believe that section 163.1 is designed to ensure that the parties will know quickly whether a proposed project agreement that has gone through all of the preliminary steps to obtaining approval from the requisite number of bargaining agents is in force. Uncertainty over whether a proposed project agreement will come into force and the consequent delay that is occasioned by that uncertainty is likely to have a negative impact on the persons directly affected by the project: owners, contractors, subcontractors, trade unions and employees. Certainty and stability in the construction of a significant industrial project are, in my view, at least two of the objects of section 163.1 of the Act.

22. Finally, I note that counsel for Local 530 recognized that the obligation under section 163.1(9) to give notice of a challenge to the proposed project agreement is not onerous. She stated in her submissions that notice could easily have been given to the Board on or before August 26, 1999. Since the Act does not stipulate the form or content of the notice of challenge, and as there is nothing in the Rules setting out what was required in order to notify the Board of the challenge, I am satisfied that interpreting the 10 day time period under in section 163.1(9) of the Act as meaning 10 calendar days is more consistent with the purpose of the Act and the attainment of its objects.

23. Based on my analysis of the statute set out above, I am satisfied that the period of time set out in section 163.1(9) of the Act within which notice of a challenge to a proposed project agreement must be given to the Board is ten calendar days from the date the Board was advised that the proposed project agreement had been approved by the requisite number of bargaining agents. That notice was given to the Board on August 16, 1999. Therefore, the time for giving the Board notice of the challenge expired on August 26, 1999.

24. Counsel for Local 530 submits that even if the 10 day period expired on August 26, Local 530 had given notice to the Board because counsel had left a message with the Deputy Registrar shortly after August 16 and well before August 27, 1999 advising that Local 530 was challenging the proposed project agreement. She also submits that even if the notice was not in writing, the failure to provide written notice to the Board is a mere technical irregularity or a defect in form and thus can be cured by the Board permitting the challenge to proceed by virtue section 123 of the Act.

25. Counsel for Local 663 does not make any submission suggesting that Local 663 had given notice prior to August 27, 1999. In my view, the suggestion by counsel for Local 530 that notice of the challenge to the proposed project agreement was given by leaving a telephone message with the Deputy Registrar is without merit. There has never been a situation where the Board has treated oral communication with the Registrar's office as a notice under the Act and none was cited by counsel. To adopt that approach would create an untenable situation for the Board, its staff and more importantly, the parties who appear before the Board. Uncertainty or disputes over who said what to whom and when it was said would give rise to litigation that would have to be resolved by the parties having to testify about what they had said to the Registrar or Deputy Registrar and what they heard the Registrar or Deputy Registrar say to them and by requiring the Registrar or Deputy Registrar to give evidence about conversations they may or may not have had with a party.

26. Apart from the difficulties in trying to have the Registrar or Deputy Registrar accurately recall a specific telephone conversation or message that might become an issue several weeks or months later when those officials are engaged in numerous telephone conversations in connection with a variety of Board proceedings every day, and the prejudice to the Board's ability to discharge its day to day functions if the Registrar or Deputy Registrar were occupied with testifying before the Board, such a process would unduly narrow the privilege afforded by section 117 of the Act. Section 117 of the Act provides:

"Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act."

In my view, the purpose of section 117 would be defeated if the Board were to adopt the position that an oral notice left by a telephone message to the Deputy Registrar is notice within the meaning of the Act.

27. I am satisfied that notice of the challenge was not made until written notice was received by the Board in this matter.

28. Counsel suggested that the Board could relieve against the "technical irregularity" of giving notice of the challenge outside of the time fixed by section 163.1(9) of the Act by resorting to section 123 of the Act. Section 123 provides:

"No proceeding under this Act is invalid by reason of any defect of form or any technical irregularity and no proceeding shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred."

It is by no means apparent to me that a failure to file notice of a challenge to a proposed project agreement is either a defect of form or a technical irregularity.

29. The Board commented on the meaning of a technical irregularity in Baron Metal Industries Inc., (1999] OLRB Rep. May/June 363 when it said at page 370: "A failure to file a pleading in a timely manner is not a purely technical error...." In that case the Board was asked to relieve against the late filing of allegations. The Board had the power to do so under what was then Rule 22, which expressly permitted the Board to relieve against the strict application of the Rules. The Board also referred to section 123 of the Act, but did not rely on that section when it permitted the late filing of the allegations. The Board in that case stated at page 370:

"It [the applicant union] contends that a 'substantial wrong or miscarriage of justice' would occur if the Board time limits were strictly applied in this case. In general the Board has applied this section [section 123 of the Act] only in circumstances in which there is a purely technical breach of its Rules. That is not the case here. A failure to file a pleading in a timely manner is not a purely technical error, as contemplated by section 123, it is a substantive matter which requires substantive consideration (see Saint Elizabeth Health Care-Durham Region [1996] OLRB Rep. Nov./Dec. 1008; Win. Roberts Electrical and Mechanical Limited [19991 OLRB Rep. Jan./Feb. 113.)"

30. It appears that the Board in Baron Metal Industries Inc., and in the earlier decisions cited in the passage above, assumed that section 123 of the Act gives the Board the power to relieve against a defect of form or a technical irregularity.

31. Section 123 of the Act is, in my view, carefully constructed to ensure that Board proceedings will not "quashed or set aside if no substantial wrong or miscarriage of justice has occurred" even if there has been a "defect of form" or a "technical irregularity". The Board does not "quash or set aside" its own proceedings. That power rests with the courts. Section 123 is designed to ensure that a Board decision or proceeding will not be quashed or set aside by the courts simply by reason of a technical irregularity or defect of form. It is a complement to the privative provision found in section 116. Section 123 may also be usefully compared to section 112 of the Act which is specifically directed at the Board. Section 112 provides:

"Where in any proceeding before the Board the Board is satisfied that a mistake has been made in 4' good faith with the result that the proper person or trade union has not been named as a party or has been incorrectly named, the Board may order the proper person or trade union to be substituted or added as a party to the proceedings or to be correctly named upon such terms as appear to the Board to be just."

Unlike section 112, section 123 of the Act does not authorize the Board to waive or ignore a "technical irregularity" or "defect of form". The Board's Rules do, however, in relation to matters governed by the Rules.

32. In Union Carbide Canada Ltd. v. Weiler et al, (1968), 1968 CanLII 26 (SCC), 70 D.L.R. (2d) 333 the Supreme Court of Canada had occasion to comment upon what is now section 123 of the Act. In that case, a board of arbitration had relieved against the time limits for filing a grievance under a collective agreement. The issue before the Supreme Court of Canada was described in the following way at page 336 of its decision:

"The plain fact. ..was that the union is out of time with stage 4 of its grievance procedure. The subject-matter of the grievance...was plainly arbitrable. We come back to the only issue, namely, whether the board had the power to extend the time."

Counsel for the union had relied on what is now section 123 of the Act to argue that the board of arbitration did have the power to extend the time for bringing forward the grievance. The court wrote further at page 336:

"Nor do I think that section 86 [now section 123] of the Labour Relations Act affords any foundation for the decision of the board.... Section 86 is directed solely to the Courts. The whole purpose of the section is to require the Courts on motions by way of certiorari or otherwise when they are considering proceedings under the Act, for example, hearings before and decisions of the Labour Relations Board, not to quash such proceedings because of defect of form or technical irregularity. Section 86 does not enable a board of arbitration, as the majority thought in this case, to ignore the plain and emphatic language of the written contract."

33. Clearly, section 123 of the Act does not give the Board the authority to relieve against a "technical irregularity" where that technical requirement is established by the Act. There is nothing in the Act comparable to either Rule 44 (which permits the Board to relieve against the strict application of the Rules) or Rule 49 (which permits the Board to shorten or lengthen any time period set out in the Rules). Thus, the Board does not, in my opinion, have the authority to relieve against the applicants' failure to give notice of their challenge to the proposed project agreement to the Board within the time required by section 163.1(9) of the Act.

34. Local 530 also submits that the Board must permit the application to proceed even though it is untimely because it relied on the advice it received from the Deputy Registrar about when the notice had to be given to the Board. Counsel relies on the doctrine of "reasonable expectation" to argue that Local 530 was denied the right to procedural fairness because it received advice from the Deputy Registrar and acted to its detriment when it relied on that advice.

35. The circumstances that have given rise to this issue are indeed unfortunate. Clearly, counsel for Local 530 knew or should have known that there was an issue of interpretation concerning the 10 day period of time contained in section 163.1(9) of the Act. The Deputy Registrar, in responding to counsel, made her best assessment of the situation, obviously relying on the Board's Rules for guidance. The Deputy Registrar's normal day to day duties require her to apply the Board's Rules to all sorts of applications that come before the Board. Her focus in responding to the inquiry from counsel for Local 530 was, quite understandably, on the Board's Rules and the Board's practices under the Rules. She did not, nor would one reasonably expect her to, engage in a detailed statutory analysis of the timeliness issue.

36. The Registrar and Deputy Registrar do not give legal advice to parties or their counsel. They try to be and most often are quite helpful in providing information about the Board's processes. But they are not the Board, nor do they make decisions with respect to substantive legal matters that come before the Board, nor are they the Board's solicitors and most importantly, they are not expected to provide legal advice on matters of statutory interpretation to parties or counsel who come before the Board. Experienced counsel who appear before the Board should know that. Determinations of substan­tive legal issues affecting parties to Board proceedings are made by a quorum of the Board after having given all of the parties affected an opportunity to be heard on the issue being raised.

37. Counsel who request information from the Registrar's office may use that information in coming to a decision about how they will deal with a matter. It is ultimately up to counsel, not the Board's Registrar or Deputy Registrar, to advise a party about the appropriate way to deal with a matter, particularly where, as here, the matter is one of first impression, where the Board has not had occasion to consider the issues raised. Counsel can analyze the Act as well as, if not better than, the Registrar or Deputy Registrar. It is legal counsel who are trained and experienced in matters of statutory interpreta­tion. It is they, not the Registrar or Deputy Registrar, who are ultimately responsible for the decision about when to file an application or a notice to challenge a proposed project agreement.

38. Furthermore, in my opinion, the doctrine of reasonable expectation has no application to this matter. The cases relied on by counsel for the applicant relate to issues between a party and a department of government. In this case, the dispute is between private parties, the applicants and the responding parties. The Board is the body who will decide the dispute. It is not one of the parties to the dispute. In my view, counsel's argument is analogous to a litigant in a court proceeding being told by a court registrar when he or she must commence a lawsuit or file an appeal. If the lawsuit were started after the limitation period or the appeal filed beyond the time prescribed for doing so, surely no one would suggest that the trial judge, the appeal court or the other parties to the lawsuit or the appeal were somehow bound by the advice given by the court's registrar. In my view, that same analysis applies here.

39. The failure of the applicants to give the Board notice within the time does not require the Board to take any further action in this matter or make any declaration in respect of the project agreement. In my view, the Board would be precluded from taking any further steps in connection with the challenge by reason of section 163.1(10) of the Act. The applicants' failure to give timely notice results in the proposed project agreement coming into force pursuant to section 163.1(10) because the project agreement was not challenged under section 163.1(9). The Board cannot alter that result. It is a result mandated by the Act.

40. The applicants were aware of section 163.1(9) and the time period within which notice of the challenge had to be given to the Board. There is no statutory basis upon which the Board could act to relieve against the consequences flowing from their failure to file a timely notice in view of the clear language of section 163.1(10).

41. Although it is not necessary for me to deal with the remedial issue because of my finding with respect to timeliness, I think it appropriate to comment briefly on the parties' submissions concerning the appropriate remedy. While the Board has the power under section 163.1(9)4 to declare that the proposed project agreement shall not come into force, the circumstances before the Board in this case clearly would not lead the Board to that result. Given the overwhelming support for the proposed project agreement and the importance of that agreement to the ongoing economic well being of the Sarnia area and the province as a whole, the Board's approach would have been to deal with the matter under section 163.1(9)3. That section is quite specific. Section 163.1(9)3(i) permits the Board to amend the proposed project agreement so that the reduction affecting the employees represented by the challenging bargaining agents is not greater than the largest reduction applicable to the employees represented by a bargaining agent that approved the proposed project agreement.

42. It is clear from the material filed that the "target" group of employees, i.e. the employees who had the largest reduction represented by a bargaining agent that approved the proposed project agreement were the employees represented by the International Association of Heat and Frost Insulators and Asbestos Workers, Local Union 95. The reduction in the total wages and benefits of the employees represented by the applicants would be 13% under the proposed project agreement. The reduction of the target group was, on the figures provided by the applicants, 12.9% (or according to the submission from counsel for the Sheet Metal Workers' International Association, Local 539, actually 12.94%).

43. In my view, there is nothing in the Act that would allow the Board to amend the hours of work provisions of the proposed project agreement or to engage in a substantial revision of the agreement, or even to amend the agreement so that the reduction is not proportionally greater than the average reduction for all of the affected trades.

44. Section 163.1(9)3 provides:

In the circumstances described in paragraph 2, the Board shall make an order doing the following, unless the Board considers it inappropriate to do so,

i. amending the proposed project agreement so that no reduction in the total wages and benefits, expressed as a rate, of an employee represented by the bargaining agent challenging the project agreement is greater, proportionally, than the largest reduction that would apply to an employee represented by a bargaining agent that gave notice of approval of the project agreement, and

ii. declaring that the proposed project agreement, as amended, is in force.

The Board is directed by the opening words of that paragraph to make an order amending the proposed project agreement in the way described in paragraph 3(i) and declaring the agreement in force as amended, unless the Board considers it inappropriate to do so.

45. Had the applicants given the Board notice of their challenge within the time stipulated by section 163.1(9), the Board would have made an order amending the wage provision of the agreement so that the reduction in the total wages and benefits would have been 12.94% and not 13%. Furthermore, the Board would not have remitted the proposed project agreement back to the owners for ratification as submitted by counsel for the responding parties. Section 163.1(9)3 contemplates, in my view, a "tinkering" with the agreement in as least a disruptive fashion as possible so as to bring the reductions in total wages and benefits in line with the largest reduction applicable to the employees represented by the bargaining agent that approved the agreement. Section 163. 1(9)3(u) is quite specific in having the Board declare that the proposed project agreement is in force, as amended under subparagraph (i) of that subsection. In my opinion, the Act does not contemplate that the project agreement, as amended by the Board, must be submitted to any of the parties for another round of ratification.

46. In summary, the Board finds that the applicants had not notified the Board that they were challenging the proposed project agreement within the time stipulated by section 163.1(9) of the Act. Therefore, by operation of section 163.1(10), the proposed project agreement came into force on August 27, 1999, the date that the time period for making the challenge had expired.

47. This application is therefore dismissed.