Ontario Labour Relations Board
1010-98-R United Brotherhood of Carpenters and Joiners of America, Local 494, Applicant v. Windsor Essex Catholic District School Board, Responding Party.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Marisa Pollock for the applicant; Brian P. Nolan, Wanda Shreve and David Morrisey for the responding party.
DECISION OF THE BOARD; March 17, 2000
This is an application for certification filed on June 11, 1998 under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). On August 24, 1998, as a result of the proclamation of section 16 of The Economic Development and Workplace Democracy Act, 1998 (“Bill 31”), the definition of employer in section 126 of the Act was amended. This decision deals solely with the issue of whether the definition of employer as it existed on the date the application was filed or the definition of employer as it presently exists applies to this application.
The employer asserts that the present definition of employer applies to this application. The employer relies on a decision of the Supreme Court of Canada in A.G. (Que.) v. Expropriation Tribunal, 1986 CanLII 13 (SCC), [1986] 1 S.C.R. 732 in which the Court ruled that an amendment to the Expropriations Act applied to an expropriation begun by the Crown prior to the new law coming into effect. The Court determined that the right that the Crown had prior to the amendment was not a vested right and accordingly, the application of the new law to the expropriation did not amount to retroactive application.
The applicant asserts that the Act is silent with respect to the effect the amendment to the definition of employer has on pending applications. In the past, when the legislature intended for amendments to the Act to apply to pending applications, the legislature specifically indicated such an intention in the amending legislation (see: section 3 of the Labour Relations and Employment Statute Law Amendment Act, 1995; the Note following section 11(5) of the Act; the Board determination in 996421 Ontario Inc. (c.o.b. Tim Hortons), [1998] O.L.R.D. No. 1782). Thus, applying the rule of interpretation known as expressio unius, it must be presumed that the legislature had no such intention with respect to the amendment to the definition of employer in section 126 of the Act.
The applicant distinguishes Expropriation Tribunal on the basis that Expropriation Tribunal concerned the effect of a change in the law to an event which, as of the date of the change, was not completed. In the present case, the event to which the law applies is complete. The filing of the application is the entire event to which the law attaches. Nothing remains to be done. The applicant relies upon W. G. Gallagher Construction Limited, [1989] OLRB Rep. Nov. 1191; Penny Lane Food Markets Ltd., [1993] OLRB Rep. March 230; Pizza Pizza Limited, [1993] OLRB Rep. April 373; Associated Paving Company Ltd. [1996] OLRD No. 1668; and Esso Imperial Oil Ltd., [1998] OLRD No. 2286.
It is my determination that the definition of employer as it existed on the date of the filing of the instant application is the definition of employer that applies. The Expropriation Tribunal decision is distinguishable. The change in law applied to an event that had not yet occurred. In the instant matter, the event to which the law attaches is complete. As indicated by the Board in Gallagher Construction and Pizza Pizza, it is a basic rule of statutory interpretation that, in the absence of evidence of clear legislative intent to the contrary, legislation should not be construed to give it retroactive or retrospective effect. There are clear examples of where the legislature has expressed such an intention. It has not done so with respect to the definition of employer in section 126 of the Act.
This matter is referred to the parties. They are to advise the Registrar of the Board within 20 calendar days as to how they intend to proceed.
I am not seized.
“D. L. Gee”
for the Board