Association of Law Officers of the Crown v. The Crown in Right of Ontario, 1999 CanLII 19978

[1999] OLRB REP. MAY/JUNE 383

3329-98-R Association of Law Officers of the Crown, Applicant v. The Crown in Right of Ontario, Responding Party v. Ontario Public Service Employees Union, Intervenor

Certification - Crown Employees Collective Bargaining Act - Trade Union - Association of Law Officers of the Crown ("ALOC") applying to represent bargaining unit of articling students employed by provincial government - Articling students already represented by OPSEU in bargaining unit including large number of other government employees - Board finding that lawyers not "employees" within meaning of Labour Relations Act ("LRA") by virtue of section 1(3) of LRA and that ALOC, not an "organization of employees" and therefore not a trade union within meaning of LRA - Certification application dismissed

BEFORE: D. L. Gee, Vice Chair, and Board Members J. A Rundle and R. R. Montague.

APPEARANCES: Steven Barrett, Michael Fleishman, Doug Lefaive and Randy Bennett for the applicant; Brian Woewen and Michele Migus for the responding party; Donald K. Eady, Debra Parkes, Tim Hadwen and Catherine Green for the intervenor.

DECISION OF BOARD MEMBERS R. MONTAGUE AND J. A. RUNDLE; June 2, 1999.

1. This is an application for certification.

2. After hearing the arguments of the parties on the first threshold question of whether the applicant had status as a trade union under the current Labour Relations Act, 1995, a majority of the Board consisting of Board Members J. A. Rundle and R. R. Montague dismissed the application.

3. The factual circumstances and arguments of the parties as set out in the dissenting decision of the Vice-Chair, are adopted by the majority subject to certain qualifications set out below.

4. Those qualifications are summarized as follows:

A. The majority notes that no argument was raised by any party that section 113 was relevant to the issues to be decided. The majority based its conclusion and oral decision quite properly on the submissions made by the parties.

B. The evidence before the Board was that as of the date of application the constitution of the applicant section 4(1)(a) included articling students without being specific and it was further the evidence before the Board that it was after the date of application for certification that the applicant amended its constitution as follows:

"For clarification, members of the Law Society of Upper Canada under section 4(1)(a) includes articling students."

The Board has consistently held parties to their positions as of the date of application to avoid parties attempts to gerrymander.

5. In the majority's view, the matter of the status of the applicant is to be based upon the wording of the Act as it existed on the date of the instant application for certification which was December 30, 1998. On March 7, 1995 when the applicant was recognized as having the status of a trade union under the Act then in existence (also referred to as "Bill 40"), the relevant legislation was different. The Legislature saw fit to change the legislation in the Fall of 1995, expressly addressing the very issue that this panel has before it in the instant application for certification, namely whether lawyers are "employees" for the purposes of the current Act. On this point, the Legislature has spoken clearly, as follows:

1(3) Subsection 2 section 97, for the purposes of this Act, no person shall be deemed to be an employee,

(a) who is a member of the ... legal ... profession entitled to practice in Ontario and employed in a professional capacity; or

6. In our view, the Legislature could not have been clearer in expressing its intention to exclude a person who is a member of the legal profession entitled to practice in Ontario and employed in a professional capacity from the ambit of the current Act. In fact the Board heard from the parties that articling students are considered members of the legal profession by both the parties and the Law Society of Upper Canada (albeit in a student capacity) entitled to practice (as students and under the supervision of a principal) in a professional capacity. That reality would appear to have been recognized by the applicant itself when in its constitutional documents that were in effect and remained unchanged until after the date of the instant application for certification, the applicant recognized articling students as members of the legal profession along with the other Crown lawyers.

7. While the situation may have been different prior to the 1995 amendments, under "Bill 40", what we are dealing with today is the reality as at the application date. In our view, the Board would be acting outside of its jurisdiction and clearly contrary to the current statute by relying upon a decision of the question of trade union status made under previous legislation to defeat what is, to our mind a clear expression of the current legislative will.

8. For that reason, it is our view on the clear wording of section l(3)(a) of this Act that the applicant is not an organization of employees for the purpose of the Act, and as such this application must be dismissed.

9. While it was not argued by the parties before us we feel it is appropriate to comment on our colleagues dissenting view that is influenced by section 113 of the Act.

10. Section 113 provides as follows:

11. Where in any proceeding under this Act, the Board has found or finds that an organization of employees is a trade union within the meaning of subsection 1(1), such finding is proof, in the

(7) The framework collective agreement dated March 3, 1995 between the Government of Ontario and the Ontario Crown Attorneys' Association and the Association of Law Officers of the Crown is terminated.

(8) Proceedings commenced under the framework collective agreement and proceedings relating to it are terminated.

(9) An interim or final decision issued on or after October 4, 1995 in a proceeding commenced under or relating to the framework collective agreement is void.

Facts

3. The Board found ALOC to be a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the "Act") by decision dated March 7, 1995 (see: Workers Compensation Board, [1995] O.L.R.D. No. 875). At the time of the Board's decision, theAct did not exclude "members of the legal profession entitled to practise in Ontario and employed in a legal capacity" from the definition of employee and accordingly lawyers were permitted to unionize. Subsequently, the Act was amended such that, at present, the Act does exclude "members of the legal profession entitled to practise in Ontario and employed in a legal capacity" from the definition of employee.

4. ALOC was initially set up, prior to March, 1995, as a voluntary organization. In June, 1995, it enacted its By-law #2 to stipulate that, for the purposes of regulating the admission of persons as members of the Association, articling students shall be deemed to be serving as a lawyer. In or about January, 1997, ALOC incorporated. By-law #1 of the corporation stipulates that an individual is eligible for membership in the corporation provided, inter alia, that he or she is a member in good standing of the Law Society of Upper Canada. It was confirmed by all counsel at the hearing that there is no dispute that articling students are members of the Law Society of Upper Canada and that ALOC has the capacity to represent them.

5. All of the current officers of ALOC are lawyers. The Crown in Right of Ontario voluntarily recognizes ALOC as the representative of approximately 400-500 Crown lawyers. ALOC negotiates

what is referred to as the framework agreement on behalf of such lawyers. ALOC filed approximately 44 membership cards in connection with the instant application for certification. Had ALOC been successful with this application for certification it would have represented 70-80 articling students.

Argument

6. OPSEU submits that ALOC lost its status as a trade union when the Act was amended so as to remove lawyers from the definition of "employee". In OPSEU's submission, the definition of trade union stipulates that it must be an organization of "employees". OPSEU points to the fact that ALOC's members are overwhelmingly lawyers, all of its current officers are lawyers, and it once had a by-law deeming articling students to be lawyers, to suggest that it is an organization of non-employees and, thus, cannot be a trade union.

7. OPSEU further relies on subsections 67(7) through (9) of CECBA in support of its argument that ALOC lost its status as a trade union. These subsections terminated the then existing framework agreement between the Government of Ontario and the Ontario Crown Attorneys' Association and ALOC as well as all proceedings commenced under the framework agreement and void any interim or final decision issued on or after October 4, 1995 in a proceeding commenced under or relating to the framework agreement. OPSEU argues that the net effect of the changes was not only to remove lawyers from the ambit of collective bargaining but to also terminate any collective agreements made by ALOC. OPSEU relies on Ontario Hydro, [1989] OLRB Rep. Feb. 185 in support of the proposition that a trade union can lose its status.

8. OPSEU submits that ALOC cannot now acquire trade union status to represent articling students because, as an organization formed and dominated by non-employees (lawyers), it is not an organization "of employees". OPSEU distinguishes this case from a situation involving people such as teachers or firefighters, on the basis that they are not excluded from the definition of "employee", but are, due the fact that they are covered by another statute, excluded from the provisions of the Act. OPSEU argues that, in such instances, the Act does not say that the individuals are not employees and there is another collective bargaining regime that considers them to be employees. As a result, a union dominated by individuals who are not covered by the provisions of the Act but are covered by another collective bargaining regime can, OPSEU submits, be a trade union, whereas a union dominated by individuals who are excluded from the definition of employee and are not covered by an alternative bargaining scheme cannot be a trade union. It is necessary for OPSEU to make such a distinction because of the Board's determination in The Board of Education for the City of Windsor, [1986] OLRB Rep. March 378 to the effect that, an organization dominated by individuals not covered by the terms of the Act, was a trade union.

9. OPSEU further relies on Canadian Union of Shin glers & Allied Workers, [1996] OLRB Rep. Mar. /Apr. 215, a decision in which trade union status was not granted on the basis that the applicant was predominantly an organization of employers. OPSEU suggests that the fact that lawyers sign the articling students' articles and provide training and guidance to the students creates that same type of conflict that the Board was concerned about in Canadian Union of Shinglers & Allied Workers in the context of employers being in the same organization as employees.

10. In response, ALOC asserts that, at the time the application for certification was filed it clearly had articling students as members (as indicated above, ALOC filed 44 membership cards). Further, it cannot be said that articling students are not employees; they are currently represented in collective bargaining by OPSEU. Thus, even if ALOC's bargaining rights and collective agreements with respect to lawyers has been extinguished, ALOC's membership currently includes employees. ALOC relies on the Board's comments in Ontario Hydro, supra, to the effect that "organization of employees" does not mean an organization of employees only.

11. Concerning the challenge that ALOC cannot be a trade union because it was formed by lawyers, ALOC asserts that lawyers formed ALOC prior to Bill 40 (at a time when lawyers were not "employees" for the purposes of the Act) and that such was the case when the Board granted ALOC trade union status in 1995.

12. ALOC distinguishes Canadian Union of Shin glers & Allied Workers on the basis that the organization at issue in that case was an employer dominated union. The framework agreement excludes lawyers who are managerial or engaged in a confidential capacity. ALOC's membership is comprised of those covered by the framework agreement. Thus, ALOC's membership does not include managers. ALOC argues that "training and guidance" is not analogous to the type of control exercised by a manager or employer. ALOC submits that while the Board is right to be concerned about employer dominance, or the conflict created by including managers, those concerns do not exist on the facts of this case.

13. ALOC relies on the Board of Education for the City of Windsor decision in which the Board stated that a trade union can still be a trade union even though the vast majority of its members would not

absence of evidence to the contrary, in any subsequent proceeding under this Act that the organiza­tion of employees is a trade union for the purposes of this Act.

(emphasis added)

11. As we have already observed, under the current Act, The Labour Relations Act, 1995, which in our view is "this Act" for the purposes of the application before us, not the previous Act often referred to as "Bill 40", was extensively rewritten in the fall of 1995, after the previous determination by the Board in the status of the applicant as a trade union. Hence from one perspective, it may be said that there has never been a determination that the applicant is a trade union under the current Act in effect as of the application date. That being the case we find nothing in our reading of section 113 that conflicts with or contradicts our determination of the clear meaning of the Legislature in the language of section l(3)(a) of this Act.

12. However, even if we are wrong on this point it seems to us that section 113 specifically requires the Board to consider whether there is any "evidence to the contrary" in assessing whether a prior determination of trade union status by the Board continues to have current effect. That must assume that a prior determination by the Board on such issues is not etched in stone for all time. Rather it is a recognition that circumstances might have changed that the Board is expressly directed to consider. It not only makes sense to consider, but we are obliged to consider the express words of the Legislature as an element of the "evidence" of surrounding circumstances in coming to our conclusion on this point.

13. Since the Legislature itself has expressed a clear direction that people engaged in the profession of law in an employment relationship are not to be accorded the status of "employees" for the purposes of this Act, and the applicant (at least as of the date of the instant application for certification) included articling students employed by the Crown as part of the class of persons employed as members of the legal profession, there was more than ample "evidence to the contrary" before us that the prior determination under the previous Act was no longer appropriate.

14. This conclusion finds even greater support from the express provisions of the Crown Employees Collective Bargaining Act, 1993 and the amendments thereto brought into effect at the same time as the passage of the current Labour Relations Act, 1995, referred to in the dissenting opinion.

15. The conclusion that there is no basis for a finding that Crown lawyers are not employees (presumably because they are in an employment relationship with the Crown), we are of the view the Crown lawyers can be said to be in an employment relationship with the Crown, in the same manner that Associate lawyers and articling students can be said to be employees of a law firm, or that in-house lawyers with a corporation or a trade union may be said to be employees of those organizations. That does not detract from the fact that they are all members of the legal profession employed in a professional capacity and who by the application of section 1(3)(a) of the Act are expressly excluded from the right to organize. This is an expression of the Legislature's will that we are obliged to give effect to.

16. Accordingly, it is our view that the applicant is not an organization of employees under this Act, and as a consequence, we confirm our oral decision that the application must be dismissed.

DISSENT OF D. L. GEE, VICE-CHAIR: June 2, 1999

1. This matter is an application for certification under the Crown Employees Collective Bar­gaining Act ("CECBA") in which the Association of Law Officers of the Crown in Right of Ontario ("ALOC") has applied to be certified to represent articling students employed in the province of Ontario by the Crown in Right of Ontario. Ontario Public Service Employees Union ("OPSEU"), in its capacity as the existing collective bargaining representative of the students in question, filed an intervention that raised a number of objections including a challenge to ALOC's status as a trade union.

2. At the commencement of the hearing, the panel was advised by the parties that they had agreed to argue the issue of ALOC's trade union status first. Accordingly, the panel heard the parties' representations with respect to such issue following which a majority of the panel, comprised of Board Members J. A. Rundle and R. R. Montague, ruled orally that it was their determination that ALOC lacked trade union status. I indicated that I was reserving my decision. Having had the opportunity to consider the issue further, it is my view that ALOC does have trade union status and accordingly I dissent from the majority. My reasons are as follows.

Relevant Statutory Provisions:

Labour Relations Act. 1995

1. (1) In this Act,

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,

(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or

Crown Employees Collective Bargaining Act, 1993

1(2) Definitions in subsection 1(1) of the Labour Relations Act, 1995 apply to terms used in this Act.

1.1(1) This Act applies with respect to,

(a) Crown employees and their bargaining agents;

(3) This Act does not apply with respect to the following:

5. Lawyers employed in their professional capacity.

2(1) Subject to subsection (2), the Labour Relations Act, 1995 shall be deemed to form part of this Act.

(2) This Part sets out modifications to the provisions of the Labour Relations Act, 1995 that apply in the circumstances of this Act.

3(1) Subsections 1(3), (4) and (5) of the Labour Relations Act, 1995 do not form part of this Act.

67. …

(7) The framework collective agreement dated March 3, 1995 between the Government of Ontario and the Ontario Crown Attorneys' Association and the Association of Law Officers of the Crown is terminated.

(8) Proceedings commenced under the framework collective agreement and proceedings relating to it are terminated.

(9) An interim or final decision issued on or after October 4, 1995 in a proceeding commenced under or relating to the framework collective agreement is void.

Facts

3. The Board found ALOC to be a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the "Act") by decision dated March 7, 1995 (see: Workers Compensation Board, [1995] O.L.R.D. No. 875). At the time of the Board's decision, the Act did not exclude "members of the legal profession entitled to practise in Ontario and employed in a legal capacity" from the definition of employee and accordingly lawyers were permitted to unionize. Subsequently, the Act was amended such that, at present, the Act does exclude "members of the legal profession entitled to practise in Ontario and employed in a legal capacity" from the definition of employee.

4. ALOC was initially set up, prior to March, 1995, as a voluntary organization. In June, 1995, it enacted its By-law #2 to stipulate that, for the purposes of regulating the admission of persons as members of the Association, articling students shall be deemed to be serving as a lawyer. In or about January, 1997, ALOC incorporated. By-law #1 of the corporation stipulates that an individual is eligible for membership in the corporation provided, inter alia, that he or she is a member in good standing of the Law Society of Upper Canada. It was confirmed by all counsel at the hearing that there is no dispute that articling students are members of the Law Society of Upper Canada and that ALOC has the capacity to represent them.

5. All of the current officers of ALOC are lawyers. The Crown in Right of Ontario voluntarily recognizes ALOC as the representative of approximately 400-500 Crown lawyers. ALOC negotiates what is referred to as the framework agreement on behalf of such lawyers. ALOC filed approximately 44 membership cards in connection with the instant application for certification. Had ALOC been successful with this application for certification it would have represented 70-80 articling students.

Argument

6. OPSEU submits that ALOC lost its status as a trade union when the Act was amended so as to remove lawyers from the definition of "employee". In OPSEU's submission, the definition of trade union stipulates that it must be an organization of "employees". OPSEU points to the fact that ALOC's members are overwhelmingly lawyers, all of its current officers are lawyers, and it once had a by-law deeming articling students to be lawyers, to suggest that it is an organization of non-employees and, thus, cannot be a trade union.

7. OPSEU further relies on subsections 67(7) through (9) of CECBA in support of its argument that ALOC lost its status as a trade union. These subsections terminated the then existing framework agreement between the Govemment of Ontario and the Ontario Crown Attomeys' Association and ALOC as well as all proceedings commenced under the framework agreement and void any interim or final decision issued on or after October 4, 1995 in a proceeding commenced under or relating to the framework agreement. OPSEU argues that the net effect of the changes was not only to remove lawyers from the ambit of collective bargaining but to also terminate any collective agreements made by ALOC. OPSEU relies on Ontario Hydro, [1989] OLRB Rep. Feb. 185 in support of the proposition that a trade union can lose its status.

8. OPSEU submits that ALOC cannot now acquire trade union status to represent articling students because, as an organization formed and dominated by non-employees (lawyers), it is not an organization "of employees". OPSEU distinguishes this case from a situation involving people such as teachers or firefighters, on the basis that they are not excluded from the definition of "employee", but are, due the fact that they are covered by another statute, excluded from the provisions of the Act. OPSEU argues that, in such instances, the Act does not say that the individuals are not employees and there is another collective bargaining regime that considers them to be employees. As a result, a union dominated by individuals who are not covered by the provisions of the Act but are covered by another collective bargaining regime can, OPSEU submits, be a trade union, whereas a union dominated by individuals who are excluded from the definition of employee and are not covered by an alternative bargaining scheme cannot be a trade union. It is necessaiy for OPSEU to make such a distinction because of the Board's determination in The Board of Education for the City of Windsor, [1986] OLRB Rep. March 378 to the effect that, an organization dominated by individuals not covered by the terms of the Act, was a trade union.

9. OPSEU further relies on Canadian Union of Shin glers & Allied Workers, [1996] OLRB Rep. Mar./Apr. 215, a decision in which trade union status was not granted on the basis that the applicant was predominantly an organization of employers. OPSEU suggests that the fact that lawyers sign the articling students' articles and provide training and guidance to the students creates that same type of conflict that the Board was concerned about in Canadian Union of Shin glers & Allied Workers in the context of employers being in the same organization as employees.

10. In response, ALOC asserts that, at the time the application for certification was filed it clearly had articling students as members (as indicated above, ALOC filed 44 membership cards). Further, it cannot be said that articling students are not employees, they are currently represented in collective bargaining by OPSEU. Thus, even if ALOC's bargaining rights and collective agreements with respect to lawyers has been extinguished, ALOC's membership currently includes employees. ALOC relies on the Board's comments in Ontario Hydro, supra, to the effect that "organization of employees" does not mean an organization of employees only.

11. Concerning the challenge that ALOC cannot be a trade union because it was formed by lawyers, ALOC asserts that lawyers formed ALOC prior to Bill 40 (at a time when lawyers were not "employees" for the purposes of the Act) and that such was the case when the Board granted ALOC trade union status in 1995.

12. ALOC distinguishes Canadian Union of Shin glers & Allied Workers on the basis that the organization at issue in that case was an employer dominated union. The framework agreement excludes lawyers who are managerial or engaged in a confidential capacity. ALOC's membership is comprised of those covered by the framework agreement. Thus, ALOC's membership does not include managers. ALOC argues that "training and guidance" is not analogous to the type of control exercised by a manager or employer. ALOC submits that while the Board is right to be concerned about employer dominance, or the conflict created by including managers, those concerns do not exist on the facts of this case.

13. ALOC relies on the Board of Education for the City of Windsor decision in which the Board stated that a trade union can still be a trade union even though the vast majority of its members would not

14. Concerning OPSEU's reliance on the previously existing by-law #2 to say that ALOC deemed articling students to be lawyers, ALOC points out that it is not ALOC's characterization of the students that is relevant, the issue is whether or not ALOC represents "employees" under the Act. Further, there can be no issue that articling students are in fact "employees" for the purposes of CECBA as they are currently represented by OPSEU. Finally, the by-law is not currently, nor was it on the date of application, in effect.

15. In reply, OPSEU argued that ALOC is asking the Board to read the word "includes" into the definition of employees. OPSEU reiterated its argument that an organization dominated by non-employees cannot be an organization of employees. OPSEU rejects the suggestion that Canadian Union of Shinglers & Allied Workers is distinguishable. It is OPSEU's submission that it was not the fact that the non-employees were employers that was determinative, rather it was the fact that they were non-employees. OPSEU distinguishes The Board of Education for the City of Windsor on the basis that it involved (as did all of the hypotheticals mentioned therein) employees who were permitted to collec­tively bargain under another regime as opposed to lawyers who are excluded from collective bargaining by both the Act and CECBA.

Decision

16. ALOC was found to be a trade union within the meaning of section 1(1) of the Act by decision dated March 7, 1995. Section 113 of the Act, which is incorporated by reference into CECBA, stipulates that once the Board has found an organization of employees to be a trade union, such a finding is proof, in the absence of evidence to the contrary, that the organization is an organization of employees. In recognition of section 113, OPSEU quite properly framed its argument as ALOC having lost the trade union status it acquired in 1995 as a result of subsequent statutory amendments.

17. OPSEU argues that ALOC is no longer an organization of employees because it is dominated by non-employees. I disagree. Section 1(3) of the Act exists in order to reverse what is otherwise an incontrovertible conclusion. Lawyers when engaged in an employment capacity are employees. It is only as a result of section 1(3) that lawyers are deemed not to be employees and excluded from the collective bargaining regime available to other employees. CECBA explicitly stipulates that section 1(3) does not form part of CECBA. Thus, there is no basis on which to conclude that Crown lawyers employed by the Crown, are not employees. The fact that collective bargaining is not available to Crown lawyers is not as a result of the fact that they are deemed not to be employees (as is the case of lawyers to whom section 1(3) of the Labour Relations Act, 1995 applies) but rather because of section 1.1(3) of CECBA which stipulates that CECBA does not apply to them. Crown lawyers are thus "employees", albeit "employees" excluded from collective bargaining. I see no basis, nor purpose, for concluding that an organization of employees, the majority of whom do not have a statutory right to collective bargaining, is not a trade union.

18. I further do not accept OPSEU's argument that the fact that the lawyers represented by ALOC sign the articling students' articles and provide training and guidance to the students creates the same type of conflict as is created where the trade union's membership includes managers and/or employers. ALOC's membership is comprised of those covered by the framework agreement. The framework agreement excludes lawyers engaged in a managerial capacity. Thus, ALOC's membership is not made up of managers. I do not accept that the signing of articles and the provision of training and guidance creates a conflict between the lawyers and articling students equivalent to that created between employees and managers and/or employers.

19. Accordingly, I see no basis for a finding that Crown lawyers are not employees or that ALOC is not an organization of employees. There is thus no evidence to contradict the Board's finding in March, 1995 that ALOC is a trade union and it is my conclusion that it maintains such status.

20. With respect to the majority's suggestion that section 113 of the Act was not argued by the parties, as indicated in paragraph 16 above, I respectfully disagree. I strenuously depart from the majority's suggestion that the use of "this Act" in section 113 refers to the current Act. Such a conclusion would require every trade union to re-establish its trade union status every time the statute was amended. Such could not have been the intended result. Finally, if I am wrong with respect to both of the foregoing points ALOC clearly took the position at the hearing that regardless of what had gone before, there was sufficient evidence before the panel, as of the date of the hearing, to grant ALOC trade union status. I agree with such submission and would find ALOC to have trade union status, at a minimum, as of the time of the instant proceedings.

21. For all of the foregoing reasons it is my view that ALOC has trade union status for the purposes of the instant application.