1164-99-R United Steelworkers of America, Applicant v. Rogers Broadcasting Ltd., Responding Party.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; March 3, 2000
1This is an application for reconsideration.
Nature of Request and Positions of the Parties
2The application relates to a decision dated September 30, 1999 (the “Decision”), in which the Board issued a certificate to the United Steelworkers of America (the “union”) in respect of a unit of employees of Rogers Broadcasting Limited, carrying on business as The Shopping Channel (the “employer”). The employer has requested reconsideration of this decision on the grounds that it is a Federal undertaking and, accordingly, the Board has no jurisdiction over its labour relations.
3This application for reconsideration represents the first time that any issue was raised concerning the Board’s jurisdiction in this matter. The employer participated in the certification proceedings in the normal course by filing a response to the application for certification in which it raised various issues in dispute. It did not, however, raise any objection to the Board’s jurisdiction to entertain the application at that time. In addition, the employer did not raise any objection to any of the Board’s interim rulings in this application, including its decision directing a representation vote. Accordingly, following a short hearing in respect of the outstanding issues identified by the parties and based on the results of the representation vote (other than four segregated ballots), the Board issued a certificate to the union.
4The Board did so following the request of both parties contained in a revised Certification Worksheet dated September 27, 1999, in which both parties agreed that the matters remaining in dispute did not affect the appropriate bargaining unit description or the applicant’s entitlement to certification. Both parties therefore requested that the Board issue a final certificate without further need to inquire into those matters in dispute. At that stage, the only outstanding issue in dispute between the parties involved the status of four individuals in the proposed bargaining unit and two unfair labour practice complaints which had been brought by the union. As there was no issue or dispute concerning the Board’s jurisdiction to entertain the application or the nature of the employer’s operations, no viva voce evidence was called at the hearing in this matter concerning the nature of the employer’s operations.
5At the time the Board made its Decision, the evidence before it with respect to the nature of the employer’s operations was contained in the application for certification and the employer’s response to that application. The union described the general nature of the employer’s business as involving a “Call Centre, retail sales, shipping and warehousing” whereas the employer described the nature of its business simply as “retail sales”. Based on the agreed facts before it, in view of the general presumption that labour relations are provincially regulated and in the absence of any jurisdictional challenge, the Board assumed jurisdiction.
6Subsequent to the Decision, the employer now seeks by way of reconsideration to introduce new evidence to establish that the employer’s operations are, in fact, federally regulated. In this regard, it now submits that Rogers Broadcasting Limited is a “federal undertaking carrying on business of radio and television signal delivery and specialty channels”. In the alternative, it states that Rogers Broadcasting Limited carrying on business as The Shopping Channel is “ancillary to a Federal work or undertaking, Rogers Broadcasting Limited.” It asks the Board to allow this request for reconsideration, and, if necessary, to allow the parties to call evidence on the constitutional issue raised in the application.
7In support of its application, the employer relies on two decisions of the Canada Labour Relations Board (the “CLRB”) issued in 1997. The first of these decisions is dated March 13, 1997 and dealt with an application for certification by another union, the Communications, Energy and Paperworkers Union of Canada (the “CEP”). That application before the CLRB related to a unit of employees in the employer’s broadcasting division, which is not the subject of the present application. In that decision, the CLRB determined that the employer’s broadcasting operations were federally regulated and accordingly the CLRB assumed jurisdiction with the result that a certificate issued to the CEP in respect of a unit of employees in the broadcasting division. The second CLRB decision is dated July 8, 1997. It dealt with an unfair labour practice complaint brought against the employer by the CEP. In that decision, the CLRB assumed jurisdiction over employees in the telemarketing section of the employer’s operations. It did so on the basis of its finding, on the evidence before it, that the telemarketing and broadcasting operations of the employer could not be severed. It should be noted that employees in the telemarketing section of the employer’s operations are included in the bargaining unit certified by the Board in the present application.
8In response to the employer’s request for reconsideration, the union indicates that “it does not agree with the new “constitutional facts” that the employer has pleaded in its application for reconsideration”. As such, any reconsideration by the Board of its constitutional jurisdiction to entertain the certification application would require a further hearing in order to allow the parties an opportunity to lead evidence relevant to this issue. The union takes the position that labour relations of the retail component of the employer’s operations, which is the subject of this application, falls within provincial jurisdiction. The union’s primary position, however, is that this application for reconsideration should be dismissed without a hearing since the employer has not satisfied any of the usual requirements for reconsideration.
Decision
9The Board’s discretionary power to reconsider is set out in section 114(1) of the Labour Relations Act, 1995 (the “Act”). This section reads as follows:
- (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
Pursuant to this provision, the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order.
10The Board has adopted a number of principles on which it will generally be guided in determining whether or not to exercise its discretion to reconsider a decision. While the Board is not restricted by these principles, they do generally further the interests of finality in Board decision-making. An outline of the Board’s jurisprudence dealing with these principles is referred to in Georgian Industries Inc. [1992] OLRB Rep. April 459 as follows:
- The Board has stated in K-Mart Canada Limited (Peterborough), [1981] O.L.R.B. Rep. Feb. 185, at ¶4:
“To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party’s conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. Nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132, (Ont. Div. Ct.).”
- The Board has also stated in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 at ¶5:
“The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:
“Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.”
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’s decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.
The rationale underlying these principles was explained by the Board in The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. September 549, as follows:
- This assessment, however, cannot ignore the underlying rationale for the guidelines – the need for some finality in the Board’s decision-making process. As the Board stated in Detroit River Construction Ltd.:
“…While depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a court, it must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in his favour, that he should not be deprived of the benefit of that decision except for good cause. The Board ought not to encourage a practice whereby one party can remain silent throughout a hearing, and after he has discovered the weak points in his adversary’s armour be permitted to exploit them by calling evidence at another and later hearing which he could and should have presented at the original hearing. If it were otherwise, the door would be open in any given case to ceaseless and never-ending hearings each serving as a prelude to the next ad infinitum and no one could ever safely rely on any decision as finally settling the rights of the parties.
For these reasons, the Board will generally exercise its power to reconsider in a manner that promotes finality in its decision-making and avoids an abuse of its processes. It will therefore generally consider first whether or not to entertain reconsideration. If it determines to do so, then the Board will consider whether or not to grant relief.
The Tests and Criteria for Reconsideration
New evidence or representations that could not have been raised previously
11The employer concedes that it does not meet the general criteria for reconsideration. It acknowledges that the constitutional facts that it now seeks to adduce before the Board are not ones that could not previously have been obtained by reasonable diligence. In fact, the employer relies on the identical constitutional facts adduced before the CLRB in two separate proceedings that took place in 1997 in which it unsuccessfully took the position that its operations were provincially regulated.
12The Board notes that the same solicitors represented the employer at those two proceedings before the CLRB and throughout the present certification application and reconsideration application. In addition, it would appear that some of the same officials of the employer were involved in both the CLRB proceeding relating to the telemarketing section of the employer’s operations and the present certification application. In this regard, the Board notes that Ms. Barbara Mallon and Ms. Heather Kelly, who were previously in attendance at the CLRB proceedings in July 1997 on behalf of the employer, both signed various Certification Worksheets binding the employer to the positions taken in the present certification application. It is also worth noting that those worksheets disclose no objection to the Board’s jurisdiction.
13The Board also notes that the representations that the employer seeks to make are not ones that it had no opportunity to make before. Instead, the Board understands that the representations that it proposes to make on reconsideration are directly the opposite of those it made before the CLRB in 1997 based on the same facts. That is, that the “constitutional facts” relied on in the CLRB decisions now support a conclusion before this Board that the employer’s telemarketing operations are federally regulated whereas, in 1997, those very same facts were submitted by the employer to the CLRB to be indicative of provincial jurisdiction. In all of these circumstances, it is not surprising that the employer has conceded that the evidence it proposes to adduce on reconsideration is not new evidence and that the representations it proposes to make are not ones that it had no opportunity to make before.
Consideration of Motive and Prejudice
14As previously noted, the Board has, in other cases, also considered such factors as the motive for the request for reconsideration in light of a party’s conduct and the resulting prejudice to another party if the request is granted. With respect to this consideration, the union submits that the Board should draw an adverse inference from the employer’s conduct throughout the course of the certification application and the unfair labour practice proceedings before this Board. In the Board’s November 5, 1999 decision, upon receipt of the request for reconsideration, the Board directed the employer to file submissions on why it did not raise the jurisdictional issue in its response to the certification application and on whether or not it could have done so. The union further submits that the Board should draw an adverse inference from the employer’s failure to address this issue and comply with the Board’s decision.
15Although the employer implicitly acknowledged, in its response dated November 9, 1999, that it could have raised the jurisdictional issue when it filed its response, it failed to provide any explanation for why it did not do so. In addition, the employer failed to provide any explanation in its subsequent lengthy submissions to the Board filed on December 7, 1999 in response to the positions taken by the union in respect of the request for reconsideration. In its submissions, the union had specifically asked the Board to draw an adverse inference from the employer’s failure to comply with the Board’s direction of November 5, 1999 to explain why it had not raised the jurisdictional issue earlier. More specifically, the union suggested that the Board should infer that the employer’s request for reconsideration was motivated by a desire to delay and frustrate the implementation of the Board’s decision dated September 30, 1999. Although the employer provided a blanket denial of this allegation in its submissions dated December 7, 1999, it still failed to provide any explanation for its failure to raise the jurisdictional issue earlier.
16The Board notes that the employer has remained silent on this issue despite a specific direction from the Board to explain its conduct. If the employer’s failure to identify the jurisdictional issue prior to the disposition of the certification application was the result of an oversight on the employer's part, the employer has had ample opportunity to say so. In all of the circumstances including the fact that the same counsel and company officials were involved in the CLRB proceedings and these Board proceedings, the Board finds that a reasonable inference can be drawn that the employer failed to raise the jurisdictional issue earlier for strategic reasons. The Board notes that the Board (differently constituted) has drawn similar inferences before in the context of previous requests for reconsideration. See, for example, the decision in Re Jordan et al v. York University Faculty Association (1977), 1977 CanLII 1837 (ON HCJDC), 84 D.L.R. (3d) 557 (Ont. Div. Ct.) where the Divisional Court approved the Board’s finding that a reasonable inference of improper motive could be drawn in similar circumstances. Since such an improper motive is precisely the type of abuse of the Board’s processes that the general guidelines were designed to avoid, a consideration of the employer’s motive weighs against granting the employer’s request to reopen the matter.
17A consideration of the prejudice to the union and employees seeking rights to collective bargaining if the request is granted also weighs against entertaining the request. A new hearing would necessarily delay the disposition of the certification application, resulting in prejudice to the union and employees affected. As the Board noted in York University [1976] OLRB Rep April 187:
…delay encountered in protracted proceedings operates to the prejudice of employees seeking rights to collective bargaining. And, of course, the Board’s posture in administering the Act is coloured by the Legislature’s intent, as expressed in the preamble, of fostering the advancement of collective bargaining through a trade union as the freely designated representative of employees. In our experience the results of delays occasioned by untimely objections and inordinately lengthy proceedings has in many instances contributed to the defeat of employees’ legitimate expectations and thereby has undermined the very design of the Act. (See: Hotel and Restaurant Employees v. Nick Masney Hotels Ltd. et al 70 CLLC para 14,020 at p. 101 (per Laskin J. A. as he then was).
The Board has recognized that delay caused by untimely objections, such as the employer’s objection in this case, operates to the prejudice of those affected by the application and serves to undermine the very purposes of the Act. As such, the inherent delay involved in entertaining this request for reconsideration militates against the exercise of the Board’s discretion.
Important issue of Board policy
18As noted above, the decision in John Entwistle Construction Limited [1979] OLRB Rep. Nov. 1096 indicates that the Board may nonetheless exercise its discretion to reconsider where the request raises significant and important issues of Board policy. In that case, the request raised the issue of the statutory authority for the Board’s policy on abandonment. As that request raised a significant issue of Board policy, the Board exercised its discretion to reconsider the issue notwithstanding the fact that the other general criteria for reconsideration had not been met.
19In the present case, the request for reconsideration raises the issue of the Board’s constitutional jurisdiction to certify the union pursuant to the Decision. This issue involves a consideration of whether or not the employer’s operations, which are the subject of the certification application, were federally or provincially regulated at the time the application was made. Although the Board agrees that an issue relating to the Board’s jurisdiction is an important one, the Board finds that the issue does not raise important issues of Board policy as contemplated in John Entwistle Construction Limited, supra. The Board will, however, consider the significance of the fact that the request raises a jurisdictional issue under a separate heading below.
Other Considerations
Consequence of Request raising an Issue relating to the Board’s jurisdiction
20The employer also “…submits that the test and criteria for reconsideration as outlined in the union’s submission is not applicable to a situation where the issue being raised on reconsideration is whether or not the Board had jurisdiction over the subject matter of the reconsideration.” It also submits that “…a reconsideration application is an appropriate method for objecting to the constitutional jurisdiction of the Board to issue a certificate.” It relies on several Ontario Labour Relations Board decisions, court and arbitration decisions in support of these propositions: McCarthy Milling Limited [1994] O.L.R.B. Rep. May 577; Bill Thompson Transport Limited, [1986] O.L.R.B. Rep. January 2; Global Recycling Industries Inc. (1994) O.L.R.D. No. 568 and O.L.R.D. No. 172; Goertz v. College of Physicians and Surgeons for Saskatchewan 1989 CanLII 4748 (SK CA), [1989], S.J. No. 425 (Sask. C.A.); Re Atomic Energy of Canada and Professional Engineers (1994), 1994 CanLII 18598 (CA LA), 41 L.A.C. (4th) 310 (Knopf); Maggie v. Olsheski [1995] O.J. No. 1237; Re Beaver Wood Fibre Co. Limited and American Forest Products Corporation (1920) O.L.R. 66. In essence, the employer submits that reconsideration should be granted whenever a jurisdictional issue is raised.
21The Board notes that it has the discretion under section 114(1) of the Act to reconsider its decision to grant a certificate to the union in the present case. However, for the following reasons, the Board is not persuaded that the general parameters governing the exercise of its discretion are irrelevant where the issue raised on reconsideration involves the jurisdiction of the Board.
22Firstly, there are good policy reasons why the Board should not exercise its discretion under section 114(1) of the Act in the manner urged by the employer in this case. If reconsideration were required in every instance in which a (presumably losing) party raises a jurisdictional issue, the principles of finality and certainty in Board decision-making would be severely compromised. In addition, the type of approach advocated by the employer, in this case, would create an incentive to those seeking to delay and frustrate the implementation of Board decisions to raise any jurisdictional issues belatedly, piecemeal, and only, if necessary, after the final disposition of a case.
23In addition, the Ontario Court of Appeal has confirmed that the Board is not required to exercise its discretion to reconsider simply because the application for reconsideration raises a jurisdictional issue. In Regina v. Ontario Labour Relations Board, ex parte Nick Masney Hotels Ltd. (1970) 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289 (Ontario Court of Appeal), the Court found that the Board did not err when it declined to reconsider a decision certifying the union. It did so despite the fact that the party applying for reconsideration sought to introduce new facts which suggested that the Board had declined jurisdiction in the original decision by denying natural justice to one of the parties.
24In Nick Masney Hotels Ltd., supra, the new facts sought to be introduced were to the effect that the objecting employees did not attend at the original hearing because they had been led by the employer to believe that the hearing had been adjourned. The employer and the union attended at the hearing, at which time the employer sought an adjournment of the hearing on the basis that its counsel was unable to attend. The employer did not, however, inform the Board of the reason for the absence of the objecting employees at the hearing. The Board denied the employer’s request for an adjournment and proceeded with the hearing, with the result that the union was certified.
25The employer and the objecting employees subsequently applied for reconsideration. They argued that the objecting employees had been denied natural justice and that the error therefore went to jurisdiction. The Board refused the request for reconsideration. On an application for certiorari, Addy J. for the Court granted the application.
26The Court of Appeal, however, allowed the appeal and dismissed the application. It did so on the basis that the Board was not required to agree to reconsider and that the Board’s original decision was unimpeachable in view of the evidence that was before the Board at the time of the original hearing. In the course of its decision, the Court of Appeal made the following comments with respect to the Board’s discretion to reconsider under section 114(1) of the Act at page 296:
Section 79(1) [now 114(1)] of the Labour Relations Act, so far as relevant to the point under discussion, declares “the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration, or ruling made by it and vary or revoke any such decision, order, direction, declaration, or ruling.” This provision leaves the widest discretion to the Board on whether it will even agree to reconsider a previous decision; it says nothing about the duty of the Board to come to any particular conclusion if it does not agree to reconsider… If, as is the case on the view taken by Addy J. and by this Court, no proper objection on certiorari lies to the original certification proceeding, it is difficult to understand how, without any change of facts save that the Board has been made aware of certain matters which were previously unknown to it, the Board is chargeable with a denial of natural justice in refusing to accede to the request that it reopen a decision made in an unimpeachable proceeding. This Court cannot review the merits of the Board’s decision made upon a reconsideration application. Addy J. appears to have been of the view that the Court may supervise the exercise of the power given to the Board to reconsider previous decisions. If that be so, we do not agree with that view.
Therefore, while the Board has the discretion to reconsider a decision under section 114(1) of the Act, it is not required to do so even where the request alleges that the Board made a jurisdictional error.
27A review of the Board decisions referred to by the employer in support of its position on this point also suggests that reconsideration will not be granted as a matter of course or right simply because the applicant raises an issue regarding the Board’s constitutional jurisdiction. Instead, the Board’s assessment about whether or not to entertain a request for reconsideration of a certification application on jurisdictional grounds has involved a balancing of the various competing considerations, including whether or not the Board’s general criteria have been met.
28The Board decision in McCarthy Milling Limited, supra, referred to by the employer, dealt with a request for reconsideration of a decision granting a certificate on the ground that the Board lacked jurisdiction over the employer’s operations. The request in this case was made three (3) years after the original certification decision was issued. The trade union in that case raised a preliminary motion that the Board ought not to entertain this application for reconsideration. In granting this motion, the Board commented as follows:
In granting the motion we recognize that given the nature of this issue and the dispute between the parties this matter may surface again at some point in the future. In our view however there are sound competing reasons which balance, (and in this case outweigh) the reasons advanced by the applicant for reconsideration in support of its request that this matter ought to be determined at this time and in this context.
In weighing these competing reasons, the Board specifically considered what the employer has referred to in its submissions herein as the “test and criteria for reconsideration” when deciding to exercise its discretion not to entertain this reconsideration request. The Board commented as follows:
Over the years the Board has established certain parameters around the exercise of its discretion to reconsider its decisions. (See for example K-MART CANADA LIMITED (PETERBOROUGH), [1981] OLRB Rep. Feb. 185, JOHN ENTWISTLE CONSTRUCTION LIMITED, [1979] OLRB Rep. Nov. 1096). These parameters include a general reluctance to entertain reconsideration requests which do not disclose an intention to adduce new evidence or make new representations WHICH A PARTY DID NOT HAVE A PREVIOUS OPPORTUNITY TO RAISE. If the Board were to entertain this reconsideration request in the circumstances of this case those parameters would be compromised. In this regard, in our view it is irrelevant that ADM has recently retained new counsel who made the reconsideration request as soon as he became aware that the union had been certified under provincial legislation.
Contrary to the employer’s submission, the Board in McCarthy Milling Limited, supra, therefore specifically considered the general parameters for reconsideration above in exercising its discretion not to entertain the request. The fact that the general parameters for granting reconsideration had not been met in that case was one of the reasons the request for reconsideration was denied.
29The employer also relies on the Board’s decision in Canadian Union of Public Employees v. Global Recycling Industries Inc, supra, in support of its position that the general criteria for reconsideration do not apply where its constitutional jurisdiction is in issue. In this respect, the employer notes that, in the course of the Board’s interim decision, the Board commented that it did not consider that “…the request for reconsideration should be dismissed out of hand, even though it is late and one wonders why it was not raised in the employer’s Reply.” The employer suggests that the Board’s comments here indicate that these considerations of lateness and the failure to raise the issue at an earlier stage are simply not relevant where the request for reconsideration raises an issue concerning the jurisdiction of the Board.
30However, in Global Recycling Inc., supra, it was ultimately unnecessary for the Board to consider further the relevance of the employer’s failure to raise the issue in its reply. Since the employer had not yet provided full particulars of the constitutional facts on which it based its request, the Board ordered the employer to do so before considering the issue further. Ultimately, the issue was not revisited, since the facts subsequently pleaded did not make out a prima facie case that the employer’s operations were federal. The request for reconsideration was therefore dismissed on that basis in the Board’s final decision dated February 14, 1994.
31The employer also relies on the Board’s decision in Bill Thompson Transport Limited, supra, as support for the proposition that a reconsideration application is an appropriate mechanism for challenging the constitutional jurisdiction of the Board to issue a certificate. In that case, the constitutional jurisdiction of the Board was successfully challenged in the course of an application for termination of the union’s bargaining rights. The termination application was therefore dismissed on the basis that the Board lacked jurisdiction. In the course of its decision, the Board indicated in obiter that an application for reconsideration could be brought with respect to the Board’s original certification decision on the basis of a lack of constitutional jurisdiction. The Board notes that this decision merely points out that the Board has the discretion to reconsider a decision granting a certificate on the ground that it lacks constitutional jurisdiction. It does not, however, indicate what criteria the Board will use when exercising its discretion in these circumstances.
32Similarly, the court and arbitration decisions relied upon by the employer also do not deal with the proper approach to the exercise of the Board’s discretion pursuant to s.114 (1) of the Act, which is in issue here. They are therefore of limited assistance to a determination of whether or not the Board should have regard to the fact that the employer in the present case has not met the Board’s general criteria for reconsideration given that the request raises a jurisdictional issue.
33The merits of the Board’s approach in McCarthy Milling Limited, supra, wherein the Board considered the employer’s failure to meet the general criteria in refusing to reconsider its constitutional jurisdiction, is bolstered by the fact that the Supreme Court of Canada took a similar approach in Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979) D.L.R. (3d) 1 (SCC). In this case, the Supreme Court of Canada declined to refer a constitutional question back to the CLRB for a rehearing where a challenge to the constitutional jurisdiction of the CLRB was raised after certification. The Court refused to do so even though it was not in a position to determine the constitutional issue based on the evidence before it.
34In deciding not to refer the matter back to the CLRB for a further hearing on the issue, the Court had regard to the employer’s questionable tactics in failing to raise the constitutional issue earlier and the prejudice to employees resulting from the delay. The fact that the challenge to the Board’s jurisdiction to issue the certificate in question remained unresolved was found not to be a sufficient reason to order a new hearing in all of the circumstances. The Supreme Court of Canada therefore dismissed the employer’s appeal on the basis that it had failed to show reversible error on the part of the CLRB.
35In conclusion, the Board is not persuaded that it is obliged to exercise its discretion to reconsider where the request for reconsideration raises issues about its jurisdiction. The Board further finds that although the usual tests and criteria for reconsideration may not be determinative of the issue, they are not irrelevant to the exercise of the Board’s discretion in these circumstances.
36The fact that the request raises an issue concerning the Board’s jurisdiction is, however, also a factor to be taken into account. From a practical perspective, it may be preferable to have the issue resolved now, since the issue may, in any event, be raised properly at some point in the future in the context of another Board proceeding or elsewhere. In the Board’s view, although this factor weighs in favour of entertaining the request, this is of limited weight since the constitutional issue can in any event be properly raised in the context of future proceedings.
Conduct of the Union
37The employer suggests that the Board should also consider the union’s conduct in the course of the certification application and not simply the employer’s own conduct or motive. Its submissions with respect to the union’s conduct in these proceedings are as follows:
Employer’s Motive and Conduct in the Proceeding
The Union seeks to ascribe ulterior motives to the Applicant without also reflecting on its own conduct throughout the process. The Union was represented by able counsel who could not have failed to comprehend that The Shopping Channel, a division of Rogers Broadcasting Limited, a specialty television, might be Federal. In fact, the Union insisted that the name Rogers Broadcasting Limited be used for the certification application despite the fact that the legal name of the Applicant is The Shopping Channel, a division of Rogers Broadcasting Limited, as set out in the decisions of the Canada Labour Relations Board. The use of the name, Rogers Broadcasting Limited in the union’s certification application surely would have raised the union’s concern that the employer may be Federal.
It can also be reasonably presumed that the Union opted to apply Provincially for its certificate because it may have realized that if it was required to collect $5.00 for each members [sic] it may not have had sufficient support for the purposes of a representation vote.
Surely the Union’s representative, Mr. Brando Paris or its counsel, Mr. Doorey, would have been aware that the CEP already represented one large division of the employer it sought to certify and would have checked this Union’s certificate or previous Board decisions to better prepare for its organizing campaign.
Based on the foregoing it can be presumed that the Union deliberately determined to apply Provincially for its certificate in order to gain whatever procedural or substantial advantage which were not available in the Federal jurisdiction.
With respect to the submissions that the union “could not have failed to comprehend that [the employer] might be Federal”, the Board notes that there are many circumstances in which the nature of a particular employer’s operations may create doubt as to the applicable constitutional jurisdiction over its labour relations. In these circumstances, a union seeking certification will generally make a judgement about whether to apply provincially, federally, or both. For these reasons, even if the Board accepts that the union could not have failed to comprehend that the employer’s operations might be Federal, the Board is not persuaded that it can thereby infer impropriety in the union’s decision to apply provincially.
38With respect to the other inferences that the employer urges the Board to draw with respect to the union’s motive or conduct, the Board finds that there is simply an insufficient basis on which to draw the conclusions suggested. For example, there is little or no basis on which to conclude that the alleged requirement “to collect $5.00 for each members [sic]” in a federal application had any bearing on the union’s decision to apply provincially. There is further little or no basis on which to conclude that representatives of the union became aware of the previous CLRB decisions in the course of the union’s organizing campaign.
39In any event, the Board notes that the employer was also represented by counsel throughout the present certification proceedings and that counsel confirmed in its response that the employer’s operations in issue involved “retail sales”, not broadcasting. The employer also made no objection to this Board’s jurisdiction until after the Board issued its final decision in this matter. In these circumstances, the Board fails to see how the union can be faulted for continuing with its application provincially, notwithstanding the dispute over the appropriate name of the employer.
40In all of the circumstances of this case, the Board finds that a consideration of the union’s conduct/motive (whether or not relevant) does not advance the employer’s position in favour of granting a hearing de novo on the jurisdictional issue.
Notice of Constitutional Question
41The Board also notes that it appears that the employer has not yet provided notice of the constitutional question to the Attorney General for Canada and the Attorney General for Ontario as is required under section 109 (1) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43. Pursuant to this section, notice of a constitutional question must be served on the Attorney General for Canada and the Attorney General for Ontario where the constitutional applicability of an Act of the Legislature is in question as soon as the circumstances requiring it become known.
Disposition
42On balance, the Board does not consider it advisable to exercise its discretion under section 114(1) of the Act to reconsider its Decision. In the circumstances of the present case, the Board notes that there is no basis on which to conclude that the Board erred when it assumed jurisdiction given the agreed facts before the Board at the time the certification decision was made. The employer now seeks to adduce new evidence at a hearing de novo in order to establish that its operations are federally regulated. The employer could have done so earlier, but failed, or chose not, to do so for
strategic reasons. For all of the foregoing reasons, the Board has determined not to entertain the request to reconsider its certification Decision.
“Caroline Rowan”
for the Board