Labourers' International Union of North America, Local 183 v. Bayview-Wellington Construction Inc., 1999 CanLII 20184

[1999] OLRB REP. NOVEMBER/DECEMBER 954

4395-98-R Labourers' International Union of North America, Local 183, Applicant v. Bayview-Wellington Construction Inc. and/or Bayview-Wellington Homes Inc., Responding Parties

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Mark J. Lewis, Nicholas J. Keresztesi, Tony Pinto and Jorge Vala for the applicant; Joseph Libermon, David DeFrancesco and Anthony Marson for the responding parties.

DECISION OF THE BOARD; November 10, 1999

1. This is an application for certification, brought under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the "Act"). The applicant seeks its typical craft unit of all construction labourers in all sectors of the construction industry other than the ICI sector in Board Areas 8 and 18. In other words, the applicant seeks to represent a bargaining unit defined in section 158(2) of the Act. The applicant states that there were eight people in the bargaining unit on the application date. The responding party says there were fifteen. If the applicant is correct, it has membership evidence in respect of more than forty per cent of the bargaining unit. If the responding party is correct, it does not. The question for the Board at this point is whether section 8.1 applies to this application. The responding party says that it does, arguing that section 8.1 applies to all applications for certification. The applicant says that it does not apply to an application such as this one which is brought pursuant to the construction industry provisions of the Act. A representation vote has been conducted and the ballots are sealed. Some of the ballots are segregated. This matter was argued first since, if section 8.1 applies, it will be necessary to examine whether or not all fifteen persons were at work on the application date, regardless of whether or not they voted. If section 8.1 does not apply, questions of membership in the bargaining unit are restricted to those persons whose ballots were challenged. The question for the Board is purely one of statutory interpretation, unaffected by any facts other than those referred to above.

2. In interpreting any statute, one must begin with the words of that portion of the statute under consideration. Counsel suggested certain other approaches to statutory interpretation which may properly be matters considered in interpreting statutes, but in the end were not helpful. In the leading Canadian text on statutory interpretation, R. Sullivan, Driedger on the Construction of Statutes (3d) (1994, Toronto: Butterworths) (hereinafter "Driedger") the "ordinary meaning rule" is defined at page 7 as follows:

(1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails.

(2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning.

(3) In light of all these additional considerations, the court may adopt an interpre­tation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing.

As will be seen below, the "additional considerations" urged upon me by counsel are a useful context, but in the end it is the application of the words of the statute which are most determinative.

Legislative Debates

3. Counsel for the responding party filed transcripts of the legislative debate during the passage of what was Bill 31 and ultimately was proclaimed as the Economic Development and Workplace Democracy Act, 1998, S.O. 1998 c.8 ("Bill 31"). Such extrinsic evidence may be of assistance in interpreting a statute, although the use of such materials is a matter of considerable debate. At one time the use of legislative debates was not admissible: Laidlaw v. Municipality of Metropolitan Toronto (1978) 1978 CanLII 32 (SCC), 87 DLR (3d) 161 (SCC). However, this has changed considerably in the past twenty years. Driedger puts the problem this way:

The rules governing the use of legislative history are concerned primarily with three issues:

(i) the admissibility of the materials,

(ii) the purpose for which admitted materials may be used, and

(iii) the appropriate weighing of materials.

The rules governing these issues are currently in a state of flux, reflecting a judicial practice that is divergent and unpredictable. In the absence of clear stable rules is due to a number of things: the very character of the relevant materials, disagreement about the proper role of the court in interpretation, above all the absence of a clear understanding of what is meant by "a legislative intent" and how such materials relate to it. (p. 432)

4. When such materials are considered by Courts, they are most helpful in assessing the general purpose of the statute, the mischief at which it was aimed, or the issues which the statute addresses. Any legislative debate will, of course, be less useful in dealing with questions which deal with the interpretation of the minutiae of legislation, and almost never when examining a question not addressed directly in the debates.

5. Counsel for the responding party points to the following passages:

"The bill I have introduced today would enhance competitiveness in the construction industry. It would create a framework to negotiate specific agreements for major industrial projects in Ontario. Such a framework has been the subject of lengthy discussions among construction employers, various trade unions and ministry officials, as we have collectively worked to resolve competitive­ness issues.

This legislation would bring about project agreements that would help businesses compete for economically significant projects with the potential to bring thousands of construction and spin-off jobs into Ontario's communities. These projects might include those contemplated by the multibil­lion-dollar petrochemical sector, as well as other innovative, high-technology-based industries.

Passing the Economic Development and Workplace Democracy Act would also address a long­standing issue. It would ensure that only employers in the construction industry are covered by the special construction provisions of the Labour Relations Act.

This means that employers whose primary business is not construction, for example, retail employ­ers, municipalities and school boards, can negotiate agreements specific to the circumstances of their sector. This connects the situation of these employers being bound by province-wide agreements that they have little opportunity to influence.

In addition to the construction industry competitiveness initiatives I mentioned earlier, the Eco­nomic Development and Workplace Democracy Act would also amend a variety of labour relations and other legislation to meet some key goals.

First, this bill could make the union certification process more democratic so that the wishes of employees are sought and respected in all cases. The Economic Development and Workplace Democracy Act would ensure that union certification can only occur when a majority of employees vote in favour of the union in a secret ballot.

The Bill would also let employers provide evidence to verify a union's estimate of the number of employees in the bargaining unit described in the application for certification without compromising the timing of a representation vote.

Investors and employees need to have confidence in the certainty of Ontario's labour laws. These amendments would ensure the democratic rights of employees are respected in the certification process. If passed, these amendments would send a message to all investors that Ontario is open for business.

In summary, the new, innovative reforms in the Economic Development and Workplace Democracy Act would make our construction industry more competitive, stimulate growth in a number of key industries and improve workplace democracy. This job-creating legislation would make Ontario more attractive to investors. Above all, Ontario will be even better positioned to attract economically significant construction projects and create jobs with the passage of the Economic Development and Workplace Democracy Act.

Counsel suggests that the general words of the Minister indicate no intention to restrict section 8.1 to industries other than the construction industry. However, the debates nowhere address the issue of whether it does or does not do so. Similarly, the general statements by the Minister reflect nothing more than some of the varying aims of Bill 31. These general aims do not speak to the issue before the Board in this case. Accordingly, I find that the record of legislative debates of no assistance in interpreting the Act to deal with the question before me.

Policy Considerations

6. The second area both counsel urged upon me was that there were "policy" reasons behind their respective interpretations of the Act. Counsel for the applicant argued that in applications for certification in the construction industry (hereinafter "Construction Applications"), the date of applica­tion is critical: hence, section 128(2). This is reflective of the transitory nature of at least part of the work force employed by any employer in the construction industry. The less draconian approach of section 8.1(5), para. 7 is of little comfort to a construction industry union if the decision is received at a time when the work at the job is completed and employees have moved on. The applicant will have no opportunity to reapply. The safeguard against abuse by a trade union is that a majority of employees will have voted to determine whether or not they wish the union to represent them.

7. I note as well that the issue appears to be of less concern in the construction industry than in other industries. This is in fact the first occasion on which the Board has had to deal with the issue in a Construction Application since the section was proclaimed on June 26, 1998.

8. Counsel for the employer argued that there is no good policy reason for distinguishing between Construction Applications and non-Construction Applications. The legislature has made many such distinctions in the Act (and indeed in Bill 31) where there is a specific need to do so. That is not the case here. Given that the bargaining unit description in a Construction Application is invariably fixed, the only question is the number of persons in the unit. Since the existence of employees, (who are named in the employer's response) or the location of job sites is clear from the beginning, the union can quickly satisfy itself as to how many employees there are in a bargaining unit and, if necessary, withdraw and reapply. He points out that the applicant's concern about a shifting workforce has not created any significant problem for it in this application: the applicant applied for the same bargaining unit of employees of these responding parties in Board File No. 4321 -98-R, realized it was in a difficult position, withdrew and reapplied two days later in this file. That is, in this case, the applicant had no difficulty recovering from a perceived misstep in the application process.

9. Both arguments have merit. However, all that means is that either interpretation can be justified on policy grounds. That is, neither interpretation is likely to make more sense in terms of the overall scheme of the Act. In the result, I must return to the specific words of the statute.

Interpreting the Statute - General Considerations

10. In applying the Act to Construction Applications, it is necessary to consider all of the sections of the Act which apply to such applications. Although sections 126-168 relate exclusively to matters in the construction industry, they do not constitute a separate and self-sufficient statute. Sections 127 and 152 merely state:

11. Where there is conflict between any provision in sections 128 to 144 and any provision in sections 7 to 63 and 68 to 125, the provisions in sections 128 to 144 prevail.

12. Where there is conflict between any provision in sections 153 to 167 and any provision in sections 7 to 63 and 68 to 144, the provisions in sections 153 to 167 prevail.

13. In other words, all of the provisions of the Act found in sections 1 to 125 which refer to certification applications apply to a Construction Application except to the extent that sections 126 to 168 conflict with any of them, in which case the latter provisions "prevail". Counsel for the applicant urged the Board to interpret the Act in such a way as to give meaning to the "silences" in sections 126-168. That is, he submitted that the Board should view sections 126-168 as a complete code supplemented only as need be by provisions from sections 1-125 which mirror and supplement those sections or which are sufficiently broad as to apply to both construction and non-construction applications provided that they did not "conflict with the construction industry sections as whole". In keeping with this "complete code theory" he submits that where the construction industry provisions are silent, in the sense of being complete without the need to refer to any other provision of the Act, the Board should treat that silence as a positive statement which conflicts with provisions such as section 8.1 and accordingly prevents such sections from applying to a construction application. I disagree. There is a major logical flaw in attempting to give meaning to a complete silence (as opposed to the enumeration of some but not all items or sections in a group) and certainly there is no authority cited by counsel, nor any of which I am aware, for such a principle of statutory interpretation.

14. Counsel for the applicant relied heavily on a portion of a decision of this Board in Ontario Hydro, [1997] OLRB Rep. Jan./Feb. 82. He noted that this case achieved a certain prominence in the labour relations community and was decided after the 1995 statute was enacted but before Bill 31 was introduced. He referred to the following passage:

15. One starts with section 5 of the Bill 40 Act (revised and replaced by section 7 of the current Act) which describes when an application for certification can be made. Once a timely application is made, one moves to section 6 (of the Bill 40 Act; which now exists in a modified form in section 9 of the current Act) which, among other things, gives the Board a broad general discretion to determine the appropriate bargaining unit. However, when an application for certification is captured by section 128, that provision operates to direct it to the construction part of the Act, including section 126. And, as the Board observed in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 (application for reconsideration dismissed [1989] OLRB Rep. Mar. 234), when it comes to applications for certification in the construction industry, this discretion is limited and directed by (what is now) section 158...

I observe that section 128 (formerly section 121) also directs the Board's discretion in that respect in construction industry applications.

45. Once the bargaining unit is determined, one then moves to section 8 (of the Bill 40 Act remember), which provides the parameters for the disposing of all applications for certification, except that in construction industry applications, sections 159 and 160 applies to applications made under section 158.

46. In other words, the construction industry provisions in sections 126 to 168 are super-imposed over the general provisions of the Act, and supplant them to the extent that where the construction industry provisions speak to a matter the general provisions do not apply.

47. Indeed, with the proclamation of the Bill 40 Act and continuing under the current Act, after a determination under the general provisions of the Act of whether an application for certification is timely, the construction industry provisions do provide a "complete code'~ for applications for certification in the construction industry. The general provisions apply to such applications only to the extent that they are incorporated into the construction provisions. That is what sections 127 and 152 mean when read together they provide that sections 128 to 144 and 153 to 167 prevail over sections 7 to 63 and 68 to 125. Indeed, even within the construction provisions themselves, section 152 provides that sections 153 to 167 prevail over sections 126 to 144. The structure of sections 158, 159 and 160, and the way these provisions refer back to the general provisions in subsections 8(3) to (9) and 10(2) (of the Bill 7 Act; sections 9 and 9.1 of the Bill 40 Act, which are the operative provisions in this case), suggests that if an application which relates to the construction industry is timely, one moves immediately to section 158. Where, as in this case, the section 1(1) trade union malting the application can only be made under subsection 158(4). The opening words of this subsection ("Despite subsections (1) and (3) ...") do not take one back to the general provisions of the Act because they refer to a "trade union", which must be a section 126 "trade union" and not just a section 1(1) trade union, that is not represented by an employee bargaining agency; that is, one that is not an affiliated bargaining agent. Subsection 148(4) operates as an exception to the province-wide bargaining scheme and was intended to permit section 1(1) trade unions which were not part of the province-wide bargaining scheme, but which had established themselves as section 126 or construction trade unions to bring applications for certification or enter into voluntary recognition agreements in the construction industry. Not only is this not a way into the construction industry for non-section 126 trade unions, it occupies the field and supplants the general certifica­tion provisions for applications in the construction industry by trade unions which are not partici­pants in the province-wide bargaining scheme.

(emphasis added)

13. The applicant in that case brought an application for judicial review to Divisional Court. In dealing with this analysis of the statute, Divisional Court said "In our view the decision made on the first issue was peculiarly and ideally one to be made by the Board and there is not support for the proposition that the decision was patently unreasonable" (Ontario Hydro, [1998] OLRB Rep. Jan. 136). (Counsel for the applicant suggested the Court also went on to find that the decision was "correct". In fact that comment was made about the Board's analysis of whether or not the applicant in that case was a section 126 union).

14. While there is no doubt that the Board was correct in the Ontario Hydro case, every decision stands only for the proposition which it actually decided. The fact that Divisional Court found that the decision was not patently unreasonable does not elevate each and every phrase in the decision to the level of statutory language. What the Board decided in that case was that there was a conflict between the definition of "trade union" in section 1 and that in section 126. Portions of section 158-160 conflict with portions of section 8-10, and therefore all applications for certification in the construction industry must be disposed of under sections 158 through 160. By virtue of section 127, the definition of trade union contained in section 126 "prevails" for the purposes of those sections. The applicant in Ontario Hydro did not meet the definition of trade union as defined in section 126 and therefore could not bring an application to which sections 158 to 160 applied. Since the construction industry provisions prevail, the applicant could not in the alternative rely on the provisions of sections 1 through 10.

15. That is all the Board decided in that case. In the context of the detailed and careful analysis of the issue by the Board in Ontario Hydro, the statement that the construction industry provisions of the Act provide a "complete code" for certification applications was entirely appropriate. However that does not mean that in interpreting the statute, one should lift that phrase out of the context of the issue being decided and apply that phrase as a general interpretive device for all sections of the statute. Indeed a review of other sections of the statute make it abundantly clear that this is not a statement which can be applied baldly to all provisions of the Act. One example will suffice. Section 159(3) and section 160(2) provide:

16. (3) Subsections 8(3) to (9) apply with respect to the powers of the Board and the representation vote.

160(2) Subsection 10(2) applies with necessary modifications with respect to a certification under this section.

That is, these subsections found in the general provisions apply to Construction Applications. Sections 159(3) and 160(2) do not incorporate them by reference, they specifically state that those subsections apply to a Construction Application. However, section 10(1) does not apply to a Construction Applica­tion. This is not because the section explicitly says it does not, but because section 10(1) is in conflict with section 160(1) and pursuant to section 127 the provisions of section 160(1) prevail. Section 10(1) is in conflict with section 160(1) for two reasons. First, a trade union may be certified under section 160(1) only if it fits within the definition found in section 126, as the Board pointed out in Ontario Hydro, supra. Second, the bargaining unit is one which is mandated by sections 128 and 158. In the case of this application, the bargaining unit must include all employees within the craft applied for employed anywhere in the province in the industrial, commercial and institutional sector, and in all other sectors of the construction industry in one of the Board's defined geographic areas. The Board does not have the discretion to find a different bargaining unit to be appropriate as it does under section 9. Any trade union wishing to make an application for certification for employees in the construction industry must apply for a bargaining unit described in section 158. Finally, section 160(1) provides that the Board shall issue two certificates; section 10(1) does not. Therefore section 160(1) is in conflict with section 10(1), and section 160(1) prevails.

16. In contrast, section 128(2) provides:

17. (2) In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 8(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.

Subsection 8(2) is not one of the subsections addressed in section 159(3). The wording of subsection 128(2) however makes it clear that in disposing of a Construction Application, the Board must address the issue of an appropriate bargaining unit posed by section 8(2) as modified by section 128(2) and section 158. In other words, section 8(2) is operative in every Construction Application the Board deals with, notwithstanding that nothing in sections 127-168 says so.

17. The conclusion I draw from this analysis is not that the Board was wrong in Ontario Hydro, but that the reference to a "complete code" should not be separated from its analytical context and applied as if it were a statutory direction. Rather the proper method of interpretation is that dictated by the ordinary meanings of the words in the statute and the prioritizing provisions in section 127 and 152. That is, all sections of the Act apply to the subject matter to which they are directed. Only in the case of a conflict between any of the provisions of sections 6 to 63 and 68 to 125 do the provisions of section 126 to 168 (and in applications dealing with the ICI sector the provisions of sections 151 through 168) prevail. As is clear from the Ontario Hydro decision, "prevail" means displace. In that case the applicant did not meet the definition of a trade union in section 126 and therefore it could not rely on the provisions of the Act over which that section "prevailed".

18. In other words, the construction industry provisions in sections 126 to 168 are superimposed over the general provisions of the Act and supplant them only to the extent that where the construction industry provisions speak to a matter, the general provisions do not apply. Where there is no conflict, the general provisions coexist with the construction provisions, and both apply to a particular application.

Section 8.1

19. The Board must therefore direct its attention to section 8.1. This section applies to its subject matter unless some other provision of the Act "prevails". There is no alternative or complimentary section in the construction industry provisions which conflicts with section 8.1. The only question then is whether this application is a matter to which section 8.1 applies. However, this analysis, because of the wording of section 8.1, does require an examination of the conflict between section 10 and section 160.

20. In analyzing section 8.1, the first rule of construction is one which can be gleaned from the statute itself. It is possible for one subsection of a section to operate regardless of whether other subsections are modified (for example section 8(2)) or rendered inapplicable by a conflict (for example section 8(1) by section 158(1)). However, this general rule is subject always to the specific provisions of any section or series of subsections. As is evident from the analysis below, I find it impossible to separate the various paragraphs and subsections of section 8.1 from one another, other than subsection (5) para.7. This is not because they are in different paragraphs or subsections, but rather because these paragraphs and subsections represent single steps in a complete and unbroken procedure.

21. Nothing in subsections 8.1(1) to (4) creates any restrictions as to the type of certification application to which they apply. On their face they apply to construction applications.

8.1(1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.

(2) A notice under subsection (1) must include,

(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;

(b) the employer's estimate of the number of individuals in the bar­gaining unit described in the application for certification; and

(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's esti­mate of the number of individuals in the bargaining unit the em­ployer proposes.

(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.

22. This sort of notice can be given with respect to any kind of application for certification. Indeed, it describes the process followed in this application. The language of these subsections is easily applied in these circumstances. Subsection (5), however, is much more difficult. This subsection details how the Board is to deal with the issue once it has been properly raised. Subsection (5) provides the following progressive and sequentially dependent steps:

(5) The following apply if the Board receives a notice under subsection (1):

1. The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.

2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10(2).

3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.

4. If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.

5. If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,

i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and

ii. the Board shall determine the number of individuals in that unit.

6. After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).

7. If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.

8. If the percentage determined under paragraph 6 is 40 per cent or more,

i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and

ii. the Board shall either certify the trade union under subsection 10(1) or dismiss the application under subsection 10(2).

23. Since this subsection provides for a precisely detailed process which refers to other portions of the statute as necessary in the progress of steps the Board is to follow, it is important to follow each step to determine how or if it applies to a Construction Application. With the exception of paragraph 7, all the steps in subsection (5) are sequential and cumulative.

Subsection (5), paragraph 1

24. This paragraph provides:

25. The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.

26. It would be wrong to conclude that section 10 does not apply to Construction Applications. Section 10(2) applies to Construction Applications; that is what section 160(2) says. Paragraph 1 refers to paragraphs 2 and 8. Paragraph 2 states:

27. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10(2).

28. This paragraph, like subsection 10(2) applies to Construction Industry Applications. There­fore, one possible and logical meaning to be given to paragraph 1 is that it applies, at least to some extent to Construction Applications. Curiously, what it does not do is to restrain the Board from acting under section 160.

29. If we proceed on the basis that paragraph i is necessary to prevent the Board from certifying a trade union under section 10 before it undertakes the process in 8.1(5), and since section 10(1) does not apply to Construction Applications and since section 160(1) does apply to Construction Applications and is not restricted by paragraph 1 of section 8.1(5), one conclusion is that the Board may certify a trade union under section 160(1) without reference to the provisions of section 8.1(5). To the extent that this sets up a competition (i.e. potential conflict) between section 8.1 and section 160, pursuant to section 127 and section 151, section 160 must prevail.

30. However, section 10(2) does apply to Construction Applications, paragraph 1 refers to paragraph 2 which deals only with a dismissal under section 10(2). Thus, at least to some extent, paragraph 1 does apply to Construction Applications, although perhaps in a more limited way than it does to other applications for certification. However, I do not need to determine whether it is more limited in its applications. Paragraph 1 also refers to paragraph 8, which is where the real problem lies.

Subsection (5). Paragraphs 2, 3 & 4

29. These paragraphs do not conflict with any of the construction industry provisions, and therefore are capable of applying to Construction Applications.

Subsection (5), Paragraph 5

30. This paragraph appears to create a conflict, but one which can be resolved. In Construction Applications the Board does not determine the unit of employees appropriate for collective bargaining under section 9. The appropriate bargaining unit, at least in the ICI sector of the construction industry, is defined by section 158(1). That is, the statute precludes the Board from finding a bargaining unit in the ICI sector other than as set out in section 158(1). Even in a non-ICI application where the Board does retain a discretion (although it virtually never departs from its standard craft bargaining units) it does so under sections 158(2) or (4). It may be, however, that there is in fact no conflict between section 9(1) and section 158 because, although section 158 circumscribes the Board's discretion, there is still a need to define the appropriate bargaining unit, even if it is only to the extent of determining the applicable designation order. Further, the requirement that the "the unit shall consist of more than one employee" has been applied by the Board in all construction applications, although it is found only in section 9(1) and not in section 158.

Subsection (5). Paragraph 6

31. Again, this paragraph does not conflict with any of the construction industry provisions, and therefore is capable of applying to Construction Applications.

Subsection (5), Paragraph 7

32. This paragraph does appear to be in conflict with section 160. Paragraph 7 provides for less onerous consequences if a trade union underestimates the size of the bargaining unit. The application is dismissed and no bar is to be imposed. Section 10(3) and section 160(3) would otherwise require the Board to impose a one-year bar. Section 10(4) anticipates a potential conflict. It provides:

10.(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).

There is no equivalent provisions in section 160. This does suggest that the legislative draftspersons may not have turned his or her mind to the application of section 160. However, paragraph 7 is the one step which can be removed from the sequence of section 8.1. It simply means that the section is of no assistance to construction unions which would face a bar in all circumstances. This is not a particularly palatable result, since there seems to be no policy rationale behind it at all. One might wish to read more into the opening words of section 10(4), i.e. "For greater certainty". Even if one does not do so, it is possible for section 8.1 to operate with respect to a Construction Application modified to the extent that section 160(3) prevails over paragraph 7.

Subsection (5), Paragraph 8

33. When one attempts to apply paragraph 8, and specifically paragraph 8ii, the attempt to apply section 8.1 to a Construction Application fails. If one follows the process through the subsections and paragraphs of section 8.1, one can only conclude it would be impossible, if the section applies to a Construction Application, to certify a trade union which correctly estimated the number of employees in the unit and which received more than fifty per cent of the votes in a representation vote.

34. As indicated above, with the exception perhaps of paragraph 1, it is possible for the Board to apply all of the steps in subsection (5), paras. 1-6 to a Construction Application. That leads the Board to the point where it knows the number of employees in the bargaining unit, and knows the applicant union's level of support. If it found that the union did not in fact represent 40 per cent or more of the employees in the bargaining unit on the application date, it would dismiss the application under paragraph 7 or section 160(3). However, if it determined that the union did represent 40 per cent or more of the bargaining unit on the application date, it is required to open the ballot box pursuant to paragraph 8i. If the union received fewer than 50 per cent of the votes, the application will be dismissed under section 10(2) as required by paragraph 8ii. What if the union receives more than 50 per cent of the votes? The Board cannot certify the applicant under section 10(1) because, for the reasons set out above, that subsection does not apply to Construction Applications. Unless section 160 is available to the Board under paragraph 8ii, the applicant could not be certified. What does one do, then, with section 8.1(5) paragraph 8ii? Let us explore the possibilities.

35. On its face, if all of section 8.1 were applied to a Construction Application, and section 160 is not available in applying paragraph 8ii, an applicant union could never be certified. If an employer gives notice under section 8.1 which is materially relevant on its face (even if the notice is entirely without substantive merit) on this analysis the Board would be forced to go through the process of section 8.1, find that the union is successful in the representation vote, and then find itself unable to certify the union or indeed to dismiss the application. This would be absurdity of the first order. As Dreidger puts it, an interpretation which leads to an absurdity is to be rejected out of hand:

When a court is called on to interpret legislation, it is not engaged in an academic exercise. Interpretation involves the application of legislation to facts in a way that affects the well-being of persons for better or worse. Not surprisingly, the courts are interested in knowing what the consequences will be and judging whether they are acceptable. Consequences judged to be good generally are presumed to be intended and are regarded as part of the legislative purpose. Conse­quences judged to be unjust or unreasonable or regarded as absurd and are presumed to have been unintended. Where it appears that the consequences of adopting an interpretation would be absurd, the courts are entitled to reject it in favour of a plausible alternative that avoids the absurdity. As Mr. Justice O'Halloran explained in Waugh v. Pedneault,

The Legislature cannot be presumed to act unreasonably or unjustly, for that would be acting against the public interest. The members of the Legislature are elected by the people to protect the public interest, and that means acting fairly and justly in all circumstances. Words used in enactments of the Legislature must be construed upon that premise. That is the real "intent" of the Legislature. That is why words in an Act of the Legislature are not restricted to what are sometimes called their "ordinary" or "literal" meaning, but are extended flexibly to include the most reasonable meaning which can be extracted from the purpose and object of what is sought to be accomplished by the statute. (par. 7a)

The modern view of the "golden" rule may be summarized by the following propositions.

(1) It is presumed that legislation is not intended to produce absurd consequences.

(2) Absurdity is not limited to logical contradictions and internal incoherence; it includes violations of justice, reasonableness, common sense and other public standards. Also, absurdity is not limited to what is shocking or unthinkable; it may include any conse­quences that are judged to be undesirable because they contradict values or principles that are considered important by the courts.

(3) Where the words of a legislative text allow for more than one interpretation, avoiding absurd consequences is a good reason to prefer one interpretation over the other. Even where the words ~ clear, the ordinary meaning may be rejected if it would lead to an absurdity.

(4) The more compelling the reasons for avoiding an absurdity, the greater the departure from ordinary meaning that may be tolerated. However, the interpretation that is adopted should be plausible. (p. 85-6)

While there is some debate about how to define an absurdity (see pages 81-83 of Driedger), the result postulated above would be absurd on any definition.

36. The second alternative is to postulate that if section 160 continues to apply, then once the process in section 8.1 is exhausted, the Board reverts to section 160 and issues a certificate on that basis. To say that, however, would be to say that section 8.1(5) paragraph 8ii is totally superfluous. If there is no need to have a specific reference to section 160, there is then no need to refer to section 10 either. On that analysis the section could end at paragraph 8i and continue to operate just as it does with paragraph 8ii present. This would conflict with a fundamental rule of construction of statutes, namely the presumption against tautologies.

37. Legislation is presumed to be accurate, well-informed, and directed in a straightforward and economic style. As a decision of the House of Lords in Commissioners for Special Purposes of the Income Tax Act v. Pemsel 1891 CanLII 21 (FOREP), [1891] AC 531 at 549 states:

I do not think it is competent to any Court to proceed upon the assumption that the legislature has made a mistake. Whatever the real fact may be, I think a Court of Law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes.

38. One of the ways in which this idealized view of legislation is applied is in the presumption against tautology. Dreidger puts it this way:

It is presumed that the legislature avoids supeffluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. In Hill v. William Hill (Park Lane) Ltd., Viscount Simons wrote:

[A]lthough a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the Legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.

As Lord Simon indicates, every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant. (pp 159-160)

Accordingly it would be an improper interpretation of s.8 (5) to treat paragraph 8ii as entirely superflu­ous.

39. The third altemative is to read paragraph 8ii as if it referred to both section 10(1) and 160(1), i.e. to "interpret" the statute in a way that in fact amends it. That is not a proper manner of statutory interpretation. As the Supreme Court of Canada said in Morguard Properties Ltd. v. City of Winnipeg (1983) 1983 CanLII 33 (SCC), 3 D.L.R. (4th) 1:

The legislature is guided and assisted by a well-staffed and ordinarily very articulate executive. The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions ... the legislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct that inadequacy of expression. This is more true today than every before in our history of parliamentary rule. (page 13)

40. The court referred to a decision of the House of Lords in Commissioners for Special Purposes of Income Tax Act v. Pemsel 1891 CanLII 21 (FOREP), 1891] A.C. 531:

I do not think to any court to proceed upon the assumption that the legislature has made a mistake. Whatever the real facts may be, I think that a court of law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes.

41. It is worth noting that in 1995 and 1998 the legislature spoke in considerable detail about the process it wished the Board to follow. Prior to 1995 there was no equivalent provision to that found in section 10(1) or 160(1) requiring to Board to dismiss an application where a union failed to obtain a majority of votes from persons casting ballots. In fact, the Board never did certify a trade union which had lost a representation vote, except pursuant to section 8 (later 11). In this case the legislature was merely setting out the obvious. In section 8.1, the legislature has set out a detailed process in the statute, indeed one which directs the Board's practice in greater detail than other provisions of the Act. Since it is clear that the section cannot be applied to a Construction Application, there is no basis upon which to assume that the statute contains an "error" in need of "correction". Where the result is inescapable, the Legislature has spoken.

42. We are left, then, with the section which, as indicated above, must be applied in its entirely or not at all. Although most of the provisions of section 8.1 could be read to apply to a construction application, some do not fit entirely, and the final step in subsection (5) paragraph 8ii is clearly impossible to apply to a Construction Application. Accordingly, I conclude that section 8.1 does not apply to a Construction Application.

43. It is still necessary to determine the right of seven individuals to cast a ballot in the vote, and this matter will be relisted for hearing to deal with that and any other issue.

44. I remain seized.