[1999] OLRB REP. SEPTEMBER/OCTOBER 813
3346-98-R; 3347-98-R The Corporation of the City of Sault Ste. Marie, Applicant v. United Brotherhood of Carpenters and Joiners of America, and its Locals and Affiliates and Carpenters District Council of Ontario, Responding Parties; The Corporation of the City of Sault Ste. Marie, Applicant v. Labourers' International Union of North America, and Labourers' International Union of North America, Ontario Provincial District Council, and its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, Responding Parties
BEFORE: Caroline Rowan, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: S. C. Bernardo, J. R. Luszka and David Francis for the applicant; Harold F. Caley and Charles Callingan for the Ontario Council; L. A. Richmond, A. Bowker and W Suppa for LIUNA, Local 1036.
DECISION OF THE BOARD; September 22, 1999
Board File No. 3346-98-R is an application under section 127.2 of the Labour Relations Act, 1995 (the "Act") for a declaration that the responding party, United Brotherhood of Carpenters and Joiners of America, and its Locals and Affiliates and Carpenters District Council of Ontario (collectively referred to as the "Carpenters") no longer represents the employees of the applicant, The Corporation of the City of Sault Ste. Marie (the "City") employed in the construction industry. Board File No. 3347-98-R is also an application under section 127.2 of the Act brought by the City for a declaration that the responding party, the Labourers' International Union of North America and Labourers' International Union of North America, Ontario Provincial District Council, and its affiliated Local Unions 193, 247, 491, 493, 506, 527, 507, 607, 625, 837, 1036, 1059, 1071 and 1089 (collectively referred to as the "Labourers"), no longer represents the employees of the City employed in the construction industry.
The Labourers filed a notice of constitutional question with both the Federal and Provincial Attorney General challenging the constitutional validity of sections 127.1 and 127.2 of the Act. The Carpenters have adopted that challenge.
Sections 127.1 and 127.2 of the Act read as follows:
127.1(1) This section applies with respect to a non-construction employer if, on the day this section comes into force, a trade union represents employees of the non-construction employer employed, or who may be employed, in the construction industry.
(2) Sections 127 to 168 continue to apply, subject to subsection (3), with respect to the non-construction employer and the employees the trade union represents as if the definition of employer in section 126 included the non-construction employer.
(3) If a declaration is made under subsection 127.2(2) that a trade union no longer represents employees employed, or who may be employed, in the construction industry, subsection (2) of this section ceases to apply with respect to the non-construction employer and those employees.
127.2(1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.
(2) On the application of a non-construction employer, the Board shall declare that a trade union no longer represents the employees of the non-construction employer employed in the construction industry if, on the day the application is made, the non-construction employer does not employ any such employees represented by the trade union.
(3) Upon the Board making a declaration under subsection (2), any collective agreement binding the non-construction employer and the trade union ceases to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.
(4) The Board may re-define the composition of a bargaining unit affected by a declaration under subsection (2) if the bargaining unit also includes employees who are not employed in the construction industry.
The challenge is based on the following grounds. Firstly, it is submitted that sections 127.1 and 127.2 of the Act violate section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). These sections are said to violate the right to freedom of association by permitting a non-construction employer to determine whether or not employees should be entitled to belong to a non-construction trade union rather than a construction trade union.
Secondly, it is submitted that these provisions violate the rights provided under section 7 of the Charter, since they are alleged to provide a statutory justification and legal incentive for employers to fire their employees in order to obtain the status of an applicant under section 127.2 of the Act.
Finally, these sections are said to violate section 15 of the Charter by discriminating between members of a trade union, which is certified to represent employees of a construction employer and members of a trade union, which is certified to represent employees of a so-called non-construction employer.
It is further submitted that none of these statutory measures can be justified under section 1 of the Charter.
ISSUE
This decision deals with the preliminary issue raised by the parties regarding the appropriate procedure for dealing with the constitutional question in the circumstances of this case.
The three procedures discussed are as follows:
by preliminary motion similar to that provided for under Rule 21 of the Rules of Civil Procedure to strike the pleadings contained in the notice of constitutional question on the basis that the grounds raised do not disclose a reasonable cause of action (hereinafter referred to as "Rule 21-type motion");
by preliminary motion following a hearing of evidence and argument on the the constitutional question only; or
by decision at the conclusion of the proceedings following a hearing of evidence and argument on both the constitutional question and the merits of the application.
ARGUMENTS
The applicant submits that it is appropriate in the circumstances of this case to deal with the constitutional question on a preliminary basis by way of a Rule 21-type motion to strike, or alternatively, by motion following evidence and argument on the merits of the constitutional question only.
In support of its position that the Board should entertain a Rule 21-type motion, the applicant advised that there are approximately 17 applications under section 127.2 of the Act currently pending before the Board and that the identical constitutional challenge has been raised in a number of them. The applicant submits that the various similar proceedings pending before different panels creates a somewhat anomalous situation if, as advocated by the responding parties, section 127.2 of the Act is found to violate the Charter. In this event, the Board's resources spent hearing some or all of these s. 127.2 applications on their merits will have been wasted and the effect of any earlier decisions on the merits of an application will be thrown into jeopardy.
The applicant further submits that it has a strong arguable case that the grounds alleged by the responding parties in support of the constitutional challenge do not make out a reasonable cause of action or, put another way, do not make out a prima facie case. Counsel for the applicant referred to what he called a "sampler" of case law, which he submits indicates that each of the grounds are without merit.
Counsel for the applicant cited the following cases in support of this argument: Corbiere v. Canada (Minister of Indian and Northern Affairs 1999 CanLII 687 (SCC), [1999] S.C.J. No.24; Municipal Contracting Ltd. v. IUQE Local 721 (1989) 1989 CanLII 5213 (NS SC), 60 D.L.R. (4th) 323; N.S.TU. v. Nova Scotia (Attorney-General) (1993) 1993 CanLII 4547 (NS SC), 102 D.L.R. (4th) 267; Walker v. Prince Edward Island (1995) 1995 CanLII 92 (SCC), S.C.J. No.45; O.T.F. v. Ontario (Attorney General) (1998) 1998 CanLII 14738 (ON CTGD), 37 C.C.E.L. 56; Dunmore v. Ontario (Attorney General) (1997) 1997 CanLII 12345 (ON CTGD), 155 D.L.R. (4th) 193 appeal to the Ontario Court of Appeal dismissed Dunmore v. Ontario 1999 CanLII 18653 (ON CA), [1999] O.J. No. 1104; A&L Investments Ltd. v. Ontario (1997) 1997 CanLII 3115 (ON CA), 36 O.R. (3d) 127; Cousyns v. Canada (Attorney General) (1992) 1992 CanLII 8529 (ON CTGDDC), 7 O.R. (3d) 641.
The Labourers and the Carpenters, on the other hand, submit that the constitutional challenge should be argued and decided at the end of the case. With respect to the applicant's alternative proposals to hear the matter on a preliminary basis, the responding parties firstly submit that the Board does not have jurisdiction to hear a Rule 21-type motion. Secondly, although the responding parties do not dispute the Board's jurisdiction to hear the constitutional challenge on a preliminary basis following evidence and argument, they argue that the Board should not do so for a variety of reasons. Instead, the responding parties submit that the Board should defer the constitutional issue to the end of the case.
Firstly, the responding parties submit that constitutional challenges cannot be decided in an evidentiary vacuum. In this regard, they rely on the following court decisions for the proposition that constitutional challenges should be determined with the benefit of a full evidentiary record. (See MacKay et al v. Government of Manitoba Attorney-General of Canada et al, Intervenors (1989) 1989 CanLII 26 (SCC), 61 D.L.R. (4th) 385; Re Attorney-General of Manitoba and Metropolitan Stores (MTS) Ltd. et al 1987) 1987 CanLII 79 (SCC), 38 D.L.R. (4th) 321.) Although the responding parties concede that their constitutional challenge represents a "tough" case given the jurisprudence to date, they argue that this does not mean that it should not be properly heard on its merits.
In addition, the responding parties submit that deferring a determination of the challenge to the end of the case leaves open the possibility that the Board may never need to determine it in the context of the present applications. The Labourers submit that they are confident that the applicant will not be found to be a "non-construction employer" within the meaning of the Act and as such the constitutional challenge will likely be moot. In support of this submission, the Labourers cite court decisions, in which the courts have found it unnecessary to answer constitutional challenges where the issue is moot. (See Moysa v. Labour Relations Board et al (1989) 1989 CanLII 55 (SCC), 60 D.L.R. (4th) 1; Borowski v. Attorney-General of Canada (1989) 1989 CanLII 123 (SCC), 57 D.L.R. (4th) 231.)
With respect to its position that the Board does not have jurisdiction to hear this matter by way of a Rule 21-type motion, the responding parties' submissions include a consideration of Rule 46 of the Board's Rules of Procedure. This Rule allows the Board to strike out applications which do not make out a prima facie case. This Rule, they argue, is not applicable since the challenge at issue is not an application. The challenge has been brought by the responding parties as part of its Response to the application. They further submit that there is no other authority either in the legislation or the Board's Rules for striking out pleadings such as these on a prima facie basis.
With respect to the alternative proposal to determine the constitutional challenge on a preliminary basis following evidence and argument on that issue only, the responding parties state that proceeding in this manner would give rise to duplication of evidence. They submit that the evidence required for a proper determination of the constitutional question involves some of the same evidence as is required for a determination of the merits of the application. A proper determination of the constitutional question, they argue, requires evidence on both how the legislation violates the Charter and how the legislation as it relates to a "non-construction employer" works generally.
They also express concern about the mixed legal onus and order of evidence. If the constitutional question is dealt with as a preliminary objection, the responding parties would bear the onus and be required to lead their evidence first, some of which would also be applicable to the merits of the application. On the other hand, if the question is deferred to the end of the case, the applicant would bear the onus and be required to lead evidence first in support of its application.
DECISION
Having considered all of the submissions of the parties, the Board determines that it is appropriate in all of the circumstances to hear the constitutional challenge at the end of the case following evidence and argument on the merits of the challenge and the applications. The Board's reasons for this decision follow.
The Board notes that the Rule 21-type motion proposed by the applicant is analogous to the procedure frequently used by the Board under Rule 46 of the Board's Rules of Procedure. Under this Rule, the Board may dismiss applications based on the pleadings alone where the application does not make out a prima facie case. The jurisdictional issue is therefore whether or not the Board can, in the same manner, dismiss a constitutional challenge raised in the context of a response where it does not raise a reasonable cause of action.
Assuming without deciding that the Board does have jurisdiction to proceed in this manner, the Board does not consider it appropriate to do so in the circumstances before it. Firstly, none of the parties suggested that the evidence on the constitutional question would be particularly lengthy. In addition, unlike in court proceedings, there is no discovery step to be avoided in proceedings before the Board, which might otherwise also militate in favour of determining the matter based on the pleadings alone if at all possible. On the other hand, as noted in McKay et al v. Government of Manitoba; Attorney-General of Canada et al., Intervenors, cited above, constitutional challenges should not be made in an evidentiary vacuum.
Finally, proceeding in this manner may, in fact, lengthen the hearing of these applications. This could occur if, after hearing the Rule 21-type motion, the Board was unable to strike any or all of the grounds raised in the constitutional challenge based on the pleadings alone. In these circumstances, if the Board found that some or all of the grounds raised a prima facie case of a Charter violation, similar arguments on the constitutional issue would presumably have to be heard all over again with the benefit of the evidence lead in respect of that issue.
The Board does not also consider it appropriate to hear the constitutional challenge as a preliminary objection following evidence on that issue only for a variety of reasons, including the context in which the Board obtains jurisdiction to interpret and apply the Charter. This jurisdiction was reviewed by the Supreme Court of Canada in Cuddy Chicks Limited, [1991] OLRB Rep. June 790. In this decision, the Court confirmed the jurisdiction of the Board to apply the Charter where it otherwise has jurisdiction over the parties, the subject matter and the remedy sought. The Court noted that by virtue of section 52(1) of the Constitution, the Constitution has supremacy and must be respected by administrative tribunals called upon to interpret the law. Section 52(1) does not, however, confer jurisdiction per se on administrative tribunals to interpret the Charter.
Instead, section 114 of the Act gives the Board the power to determine "all questions of fact or law that arise in any matter before it". As such, the Board has the power and duty to consider whether a legislative provision is inconsistent with the Charter where the question arises in an application which is otherwise properly before it.
In the context of the present applications, the Board must consider whether the Charter question has yet arisen in the matters before it. The Board will only grant the declaration sought by the applicant in these applications under section 127.2 if, among other things, the City is found to be a "non-construction employer" within the meaning of the Act. The question of whether or not the City is a "non-construction employer" is a central issue to be determined on the merits of the applications. As the Labourers argue, if the applicant is unsuccessful in establishing that it is a "non-construction employer" within the meaning of the Act, the Charter question will be moot.
The Charter question has not therefore, in the Board's view, yet arisen in these matters and may, in fact, never arise depending on the disposition of the other issues raised on the merits of the application. The Board therefore finds that it is premature to consider the Charter question on a preliminary basis. The Court's have further noted the benefit of having a full evidentiary record from the administrative tribunal considering a Charter challenge. Although all of the evidence going to the merits of the application will perhaps not be necessary, there is no doubt that a proper determination of the Charter challenge will best be made in circumstances in which the provisions of sections 127.1 and 127.2 would otherwise apply.
In addition, as the Court indicated in Cuddy Chicks Limited, cited above, the Board's power to interpret the Charter is limited in its applicability to the matter in which it arises. As a result, although there may be some practical benefit to the parties to other similar applications before the Board in which the identical challenge has been raised, an early decision on the constitutional question does not otherwise have any impact on other applications pending before the Board.
Finally, the Board is concerned about potential prejudice associated with requiring the responding parties to lead evidence first regarding the constitutional question, which in some respects duplicates evidence which they would normally only call in response to the applicant's case on its merits. On the one hand, the concern raised regarding duplication of evidence if the constitutional issue is heard separately from the merits can be avoided if the same panel of the Board hears both the preliminary issue and, if necessary, the application on its merits. On the other hand, however, if the matter proceeds in this fashion, the responding parties will be required to lead evidence first on matters which they would normally only call in response to the applicant's case.
For all of these reasons, the Board determines that the constitutional issue will be determined, if necessary, at the end of the proceedings following evidence and argument on both the constitutional issue and the merits of the application.
This matter is referred to the Registrar to be set down for hearing. This panel is not seized.