Ontario Labour Relations Board
1350-99-U Marc A. Crockford, Larry Kane, Donald Servant, Mike Sarrazin, Fred Leblanc, Paul Konarek, Denis Ducharme, Roger Gosselin, William Hall, Daniel Boisvert, Gary Dobratz, Gerald Siquin and Wilf Yaworsky, Applicants v. Warehousemen, Transportation and General Workers Union, Local 715 of the Retail, Wholesale and Department Store Union District Council of the United Food and Commercial Workers International Union; National Grocers Co. Ltd., Responding Parties.
2809-99-U Raymond Lapointe, Wayne Cascanette and Perry Smith, Applicants v. Warehousemen, Transportation and General Workers Union, Local 715 of the Retail, Wholesale and Department Store Union, District Council of the United Food and Commercial Workers International Union; and Loblaw Co. Ltd./National Grocers Co. Ltd., Responding Parties.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; October 16, 2000
1These are applications under section 96 of the Labour Relations Act, 1995 (“the Act”), each of which allege violations of (among other sections) section 74 of the Act. The two applications were consolidated by decision of the Board dated February 7, 2000. The Chair of the Board has authorized me to sit alone to determine these matters.
2The responding parties have requested that both applications be dismissed because they do not disclose a prima facie breach of the Act. In the Board’s decision dated February 7, 2000, the applicants were directed to respond to the responding parties’ request. The applicants in both applications have had an opportunity to do so.
The Parties
3Loblaws Companies Limited (“Loblaws”) owns the shares of its subsidiary National Grocers Co. Ltd. (“National Grocers”). National Grocers manages the process whereby product is obtained from various suppliers and is received, warehoused, assembled and distributed to retail grocery stores that National Grocers services. National Grocers services a number of retail grocery stores such as Loblaws, Zehrs Markets, Your Independent Grocer, Valu-Mart and independent retail grocery stores. National Grocers operates a number of distribution centres across Ontario. One of those distribution centres, the Sudbury warehouse cash and carry operation, is located at 1160 Lorne Street in Sudbury (the “NG warehouse”).
4Provigo Inc. operates, or operated, a division, Loeb Inc. (“Loeb”), which carried on or carries on a retail and wholesale food business in Ontario. Loeb operates or operated at least two warehouses in the Sudbury area, a grocery warehouse located at 1010 Lorne street in Sudbury (the “Loeb grocery warehouse”) and a fresh foods warehouse located at 50 Vagnini Court in the Town of Lively in the township of Walden (the “Lively warehouse”). The Lively warehouse is located outside the borders of the City of Sudbury but is within the District of Sudbury. I note that it is unclear from the materials filed whether Provigo or Loeb continue to exist as corporations, but that fact is not relevant to the Board’s determination in this case.
5The applicants in Board File No. 2809-99-U are or were employees of National Grocers in the NG warehouse.
6The applicant(s) in Board File No. 1350-99-U are or were employees of Loeb at the Loeb grocery warehouse and/or the Lively warehouse. It should be noted that although Mark Crawford was the only applicant originally named in the application, Larry Kane, Donald Servant, Mike Sarrazin, Fred Leblanc, Paul Konarek, Denis Ducharme, Roger Gosselin, William Hall, Daniel Boisvert, Gary Dobratz, Gerald Siquin and Wilf Yaworsky have requested to be added as parties. The Board grants their request and hereby amends the style of cause accordingly. It should also be noted that Claude Messier also requested that he be added as a party but by letter dated February 9, 2000 he advised the Board that he had reconsidered his decision to participate in this matter.
7The responding party Warehousemen, Transportation and General Workers Union, Local 715 of the Retail, Wholesale and Department Store Union, District Council of the United Food and Commercial Workers International Union (“the union”) represents all of the applicants in their employment relationships with their respective employers. There are separate bargaining units for the former Loeb employees and the National Grocer employees which will be more fully discussed below.
The Background Facts
8On or about December 10, 1998, Loblaws purchased the shares of Provigo. In doing so, Loblaws purchased Provigo’s division Loeb. In May 1999, Provigo sold 38 grocery stores to Metro Richelieu Inc., a company which is not involved in these applications . These applications arise out of Loblaws/National Grocers’ rationalization of its operations in and around Sudbury following these transactions.
9National Grocers determined that it had sufficient capacity within its existing distribution network to serve the Sudbury area’s retail outlets including those Loeb grocery stores which had not been sold by Provigo to Metro Richelieu. As a result, National Grocers decided to close both the Loeb grocery warehouse in Sudbury and the Lively warehouse. National Grocers advised the union of this fact in May 1999.
10The union asked the company to reconsider its decision. It requested that it consider retaining at least one of the Loeb warehouses.
11National Grocers’ response was that it was prepared to keep open the Lively warehouse provided the union and the employees would agree to a collective agreement that was acceptable to the company. No such agreement was reached by the time the warehouse was scheduled to close.
12The Loeb grocery warehouse and the Lively warehouse discontinued business June 19, 1999. The Lively warehouse was wound down and the redistribution of inventory was completed within approximately two weeks. At that time, employees went to Loeb’s grocery warehouse to assist in the closure of that facility.
13Discussions continued between National Grocers and the union. Eventually two new collective agreements were entered into, each with an effective date of July 1, 1999 to December 31, 2004. One collective agreement covered all warehouse employees at 50 Vagnini Court in Lively and the other covered all office employees at the same location. National Grocers agreed to an enhanced severance package for those employees who were laid off or preferred to resign from their employment. However, under the circumstances the union was forced to accept virtually all of the other terms proposed by National Grocers. National grocers did agree to recognize the union for “any new national grocers warehouse opened in the district of Sudbury with respect to rates of pay, hours of work and other conditions of employment”. The collective agreements were ratified by the members of the bargaining unit almost unanimously. As a result of these collective agreements the Lively warehouse was reopened. In July or August 1999 National Grocers transferred produce and dairy operations from the NG warehouse to the Lively warehouse.
14The closing of the Loeb grocery warehouse resulted in the loss of a number of jobs. The applicants in Board File No. 1350-99-U appear to be among those so affected. It is unclear, however, whether they might eventually obtain positions at the Lively warehouse since their seniority rights extend there.
15The applicants in Board File No. 2809-99-U have not been directly affected by these transactions as the NG warehouse remains open. However, they are concerned that they may be affected at a later date in a way which is more fully described below.
Relief Claimed
16Each application seeks similar relief: the consolidation of the NG warehouse and the Lively warehouse bargaining units. Mr. Crockford and the other applicants in Board File No. 1350-99-U seeks such relief so that they can bump into the NG warehouse. The other applicants seek consolidation under the collective agreement that applies to the NG warehouse so that they can eliminate the possibility that they will have to bump into a bargaining unit covered by the current Lively agreement.
Position of the Responding Parties
17The responding parties seek to have this application dismissed because, in their view, they do not disclose a prima facie breach of the Act. In addition, they assert that even were the Board to find that a breach of section 74 of the Act had occurred, the Board has no jurisdiction to award the primary relief sought: the combination or consolidation of bargaining units.
18The applicants’ reply, in brief, is that the Board does have jurisdiction to combine units, to adjust the scope of existing bargaining units, or to resolve a jurisdictional dispute as a remedy for a violation under section 74 of the Act.
Position of the Applicants
19The applicants in Board File No 2809-99-U base their concern on the fact that in their view the terms and conditions negotiated in the collective agreements which apply to the Lively Warehouse are a “step backwards for employees of the company”. Normally these issues would not be any concern for the applicants because they operate under a different collective agreement than that which applies to the Lively employees. However, they have an interest because the collective agreement which applies to them contains a “job guarantee” which states:
46.03 Employment Guarantee – Six years from May 1, 1995 to April 30, 2001
The Company agrees that all full-time employees on the payroll of the Company on the date of ratification (November 25, 1995), including those on a leave of absence for union business, shall be continued in full-time employment of forty (40) hours per week, during the term of this collective agreement and shall be covered by all benefits as set out in this collective agreement during such six (6) year period of time. It being agreed that the guarantee of forty (40) hours per week shall only apply to those on a leave of absence as mentioned above when such person returns to work for the Company following the completion of their respective leaves of absence.
For greater clarity, no full-time employee(s) as described above, shall be laid off temporarily or permanently during the term of this collective agreement. The only exception to that which is stated above is where an employee is prevented from working all or part of such forty (40) hours per week due to an Act of God, such as fire, flood, or similar “catastrophe”.
Such job guarantee for those full-time employees presently employed in the Regional Municipality of Sudbury shall be within the Regional Municipality of Sudbury and such job guarantee for those presently employed in Cochrane, Ontario, shall be guaranteed full-time employment as set out above in the Town of Cochrane or within a twenty-five (25) mile radius of Cochrane, Ontario, or they shall be guaranteed such full-time employment as set out above at a location within the Regional Municipality of Sudbury.
20If these applicants are laid off from their positions at the NG warehouse, they may have the right to, under the job guarantee, take a position at the Lively facility. In such event they do not want to take a reduction in pay and benefits as a result of the “poor” terms of the newly negotiated Lively collective agreement. Even if they do not bump into the Lively facility the new collective agreement which applies to Lively provides that the union is recognized as the bargaining agent for any new facilities which National Grocers opens in the District of Sudbury. The Lively collective agreement arguably applies to these new facilities and the applicants may have to assume positions under terms and conditions of employment less favourable than they currently enjoy.
21In order to alleviate its concerns, the applicants request that the Board consolidate all of the National Grocers facilities under the collective agreement which applies to the NG warehouse and void the collective agreements which apply to the Lively warehouse. The applicants also request that all former Loeb employees be placed at the bottom of the single seniority list that would naturally result from an Order of the Board consolidating bargaining units as they request. Such Board Orders would ensure that if the applicants did have to bump into another facility as a result of the job guarantee they would not suffer any reduction in wages and benefits.
22The applicant(s) in Board File No 1350-99-U come at the situation from the opposite perspective. They have lost their positions as a result of the closure of the Loeb grocery warehouse and they request, among many other things, that the Board consolidate the bargaining units and dovetail the seniority lists so that they may bump into a position at the NG warehouse.
In their view, Loeb and National Grocers are now the same company and it makes no sense why they cannot bump into one of National Grocers’ other operations.
Decision
23Section 74 of the Act states:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
24It is not unusual for one union to hold bargaining rights for more than one bargaining unit at a single employer. Such a situation can occur where, as here, there is a sale of one business to another. More frequently, however, it arises where one union is certified to represent different groups of employees at the same employer. For example, a union might be certified for two bargaining units, one of part-time employees and one of full-time employees, or as here, one for plant employees and one for office employees, or one union which may represent employees in different bargaining units of different stores of a grocery store chain.
25One of the difficulties that the applicants in Board File No. 2809-99-U have in this case is that all of the alleged conduct of which the applicants complain occurred while the union was representing the Loeb employees, all of whom are in a different bargaining unit than these applicants. This difficulty is highlighted by considering the practical results of this application. These applicants are really asserting that the union ought to have allowed the Lively warehouse to close with the loss of many jobs rather than negotiate a renewal collective agreement which had less favourable terms and conditions of employment than those contained in the collective agreement which applies to the NG warehouse. And the reason the union ought to have taken this course of action was to give them absolute wage and benefit protection in case at some point in the future they were required to take advantage of the job guarantee in the collective agreement and bump into another of the employer’s operations.
26The Board has considered such situations before. In Toronto District School Board, [1998] OLRB Rep. Nov./Dec. 1033, the Board stated:
Counsel argued that it was possible to read section 74 in such a manner that a trade union’s duties with respect to employees in the unit continues, so long as it was representing the unit. On that reading of section 74, the obligation to represent fairly is not restricted to the occasions when the bargaining agent is working on behalf of the unit, but is a constant obligation that follows the bargaining agent even when it is working on behalf of another unit. In this case, then, counsel for the applicant argued, the OSSTF owed a duty of fair representation to the occasional teachers whilst it was bargaining with the School Board on behalf of the full-time teachers. Counsel for the applicant conceded that this construction of section 74 was particularly appropriate in this kind of situation where the same bargaining agent is bargaining on behalf of two units with the same employer. He submitted that these circumstances, coupled with the reality that the occasional teachers are not free to elect their bargaining agent, should convince the Board that the construction urged is at least possible.
The argument is certainly novel, but ultimately, not convincing. While I agree that the duty to represent is a continuing one, section 74 limits its operation to those instances in which the trade union is representing the employees. Put another way, the more persuasive reading of section 74 requires a trade union to turn its mind to the interests of the bargaining unit when, and only when, it is called upon to represent it. Not only is the applicant’s reading not persuasive on a simple read, when the practical consequences are considered, that reading becomes less attractive and sustainable. Trade unions regularly represent bargaining units with diverse and conflicting interests. In fact, the same trade union may represent employees whose employers are competitors. It is hard to conceive of a way that trade unions could even pretend to meet a duty of fair representation obligation that required them to consider the interests of all the bargaining units they represented whenever they negotiated, absent some form of joint bargaining or standard agreements in an industry. It is difficult to imagine that the Board would choose a reading of the duty of fair representation that would have the effect of requiring trade unions to drastically alter how they bargain.
Instead, I prefer the traditional reading; a trade union is required to consider the interests of a bargaining unit only when it is acting for it. In this case then, the OSSTF had no duty of fair representation to the Occasional Teachers when it was negotiating with the School Board on behalf of the Full-time Teachers.
27I agree with the Board’s reasoning in the Toronto District School Board decision. The applicants submit that it is not beyond “the power of section 74 for the Board to adjudicate in circumstances where the union negotiates a collective agreement which has a bargaining unit description which conflicts with another bargaining unit and undermines the latter bargaining unit”. The applicants allege that the union entered into a “sweetheart” deal which was in bad faith and discriminatory and says that Toronto District School Board can be distinguished on that basis.
28The Board disagrees. As the Board determined in Toronto District School Board, supra, a trade union is under no obligation to consider how its conduct affects the interests of another bargaining unit when it acts on behalf of one bargaining unit. In short, absent a violation of the Act, which can only be raised by an appropriate party, it can make “sweetheart” deals if it determines it is in the best interests of that bargaining unit. In any event, under the circumstances of this case, the collective agreement entered into by the union can hardly be described as a “sweetheart” deal. It was a deal made to save jobs which was ratified by almost the entire bargaining unit. Moreover, in my view the bargaining unit descriptions do not conflict in a practical manner as is asserted by the applicants.
29In short, this application does not allege any misconduct on the part of the union in its representation of these applicants, and for that reason, the application is dismissed.
30The Board also has serious reservations about the remedies requested by the applicants. However, these observations are best left, under the circumstances, to the other application before the Board.
31For all of the foregoing reasons, this application is dismissed.
32The application before the Board in Board File No. 1350-99-U involves, primarily, the opposite argument of the one advanced in the other application. These applicants assert that the union ought to have consolidated the bargaining units which applied to the NG warehouse and the two Loeb warehouses in the Sudbury area in order to protect the union members affected by the closedown of the Loeb grocery warehouse.
33Mr. Crockford and the applicants in this application allege that the union executive was in a conflict of interest when it decided not to consolidate the two bargaining units. The conflict of interest arises because the majority of the union executive were employed by National Grocers and would not benefit if Loeb employees were given, through consolidation of bargaining units, seniority rights with respect to National Grocers operations.
34These applicants also rely on the fact that the union’s constitution requires the union to consolidate bargaining rights.
35This application arises under a number of misconceptions about the Act and the Board’s jurisdiction. It is asserted that: “The employer and union are prohibited from holding a separate collective agreement for the employees of the same employer”. As discussed earlier, this assertion is incorrect. Unions frequently have more than one collective agreement with the same employer. What the Act does prohibit, in section 55, is there being more than one collective agreement between a trade union and an employer “with respect to the employees in the bargaining unit defined in the collective agreement”. Section 55 has not been violated in this case.
36It is also important to note that the Board has no jurisdiction over the internal affairs of trade unions. Therefore it is not for the Board to determine whether the Union’s constitution has been violated. Nor is it the role of the Board to consider the selection of union stewards by itself, unless such selection is otherwise in violation of the Act. Here, there is no such suggestion.
37In addition, a union has no power to require that bargaining units be consolidated as is suggested by the application. This can only be done on the agreement of the employer and the union. Board consent is required if the consolidation involves the changing of the duration of any of the collective agreements which are to be consolidated.
38These applicants’ remaining and primary argument appears to be based on section 69 of the Act. Section 69 states as follows:
- (1) In this section,
"business" includes a part or parts thereof; ("entreprise")
"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")
(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.
(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 16 or 59, as the case requires.
(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,
(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or
(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold,
the Board may, upon the application of any person, trade union or council of trade unions concerned,
(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and
(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.
(5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer.
(6) Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,
(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);
(b) determine whether the employees concerned constitute one or more appropriate bargaining units;
(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and
(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.
(7) Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 14.
(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.
(9) Where an application is made under this section, an employer is not required, despite the fact that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application.
(10) For the purposes of sections 7, 63, 65, 67 and 132, a notice given by a trade union or council of trade unions under subsection (3) or a declaration made by the Board under subsection (6) has the same effect as a certification under section 10.
(11) Where one or more municipalities as defined in the Municipal Affairs Act are erected into another municipality, or two or more such municipalities are amalgamated, united or otherwise joined together, or all or part of one such municipality is annexed, attached or added to another such municipality, the employees of the municipalities concerned shall be deemed to have been intermingled, and,
(a) the Board may exercise the like powers as it may exercise under subsections (6) and (8) with respect to the sale of a business under this section;
(b) the new or enlarged municipality has the like rights and obligations as a person to whom a business is sold under this section and who intermingles the employees of two of the person's businesses; and
(c) any trade union or council of trade unions concerned has the like rights and obligations as it would have in the case of the intermingling of employees in two or more businesses under this section.
(12) Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one employer to another, the Board shall determine the question and its decision is final and conclusive for the purposes of this Act.
(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
39Neither of the responding parties takes issue with the fact that there has been a sale of a business under section 69 of the Act from Provigo to Loblaws. But that is not the issue before the Board. The mere fact that one business has been sold to another does not alter bargaining unit descriptions which existed prior to the sale. The applicants’ claim is that as a result of the sale, the union should have sought to consolidate bargaining units. The difficulty with that position is, as stated before, the union has no right to require an employer to consolidate bargaining units.
40It might be argued (although it was not) that the union could have applied under section 69(4) or section 69(6)(d) of the Act for an order amending the bargaining unit descriptions or certificates, or perhaps made an application under section 1(4) of the Act. However, in my view, it is extremely unlikely that the Board would have responded in the way desired by the applicant, even if such applications were made. Section 69(6)(d) only applies where employees have been intermingled as a result of a sale. There was no intermingling in this case. On the other hand, the purpose of section 69(4) is to ensure an orderly transfer of bargaining rights on a sale. Here there is no confusion about the scope of the union’s bargaining rights that required clarification under section 69(4). The parties were quite capable of working out any issues in bargaining which is a process the Board gives deference to (see Corporation of the City of Peterborough, [1984] OLRB Rep. Dec. 1752, at para. 10). Similarly, the Board’s power under section 1(4) is designed to preserve bargaining rights and there is no suggestion that the union’s bargaining rights have been eroded by the sale.
41Therefore, even if it could be said that the union executive was in a conflict of interest which caused them to decline to seek a combination of bargaining units (which the Board does not find), there was no legal avenue with any prospect of success available to the executive to permit them to achieve that goal.
42The applicant also asserts that the union is in violation of section 74 of the Act because it failed to appoint a union steward for a number of years. Even accepting that the union had an obligation to appoint a chief steward, it is also true that this allegation is made too long after the facts must have been known to Mr. Crockford. The Board’s Rules require that allegations of wrongdoing be made promptly, not years after the event. Even if the Board did not dismiss this aspect of the applicant for delay, there would be no labour relations purpose to inquire into these allegations as the applicants do not assert that there has been any harm by the union’s omission even assuming that the collective agreement contained the requirement that a chief steward be appointed .
43Accordingly, for all of the foregoing reasons, the application in Board File No. 1350‑99‑U is also dismissed.
Other Matters
44In the period between this application and the date of this decision, Mr. Crockford has raised a number of issues, made a number of demands and has made further allegations. The Board will deal with these as follows.
45The applicants have requested on several occasions that the Board provide him (and the Chief of Police in Sudbury, among others) with a copy of the certificate issued to the union by the Board or the voluntary recognition agreement the union obtained with the employer on the sale of business which is described above. The Board does not have a copy of any voluntary recognition agreement, if such a document exists. The Board does not issue a certificate to the union on this or any other sale of a business because bargaining rights flow automatically on a sale and are only extinguished by order of the Board under section 69 of the Act.
46Mr. Crockford also requested a number of interim orders, including that he be provided with legal counsel. Such an interim order is not appropriate under the circumstances of this case, if ever. Since it is not the Board’s practice to order costs following a successful application, it would hardly be appropriate to order the responding party to pay for an applicant’s counsel prior to any finding of a violation of the Act. It is also not at all certain that the Board even has the jurisdiction to order that a party be provided with legal counsel having regard to section 69 of the Act.
47In addition to section 74 of the Act, the applicants have also alleged violations of sections 17, 55, 56, 68(1), 69, 72(a), 73 and 76 of the Act. After careful consideration and a review of the facts and the statutory provisions relied on, the Board has determined that there is no prima facie violation of the provisions relied on. Even if all of the facts set out in the application are true, the application cannot succeed under the sections relied upon.
48While it has dismissed the applications, the Board understands the applicants’ frustration under the circumstances. The applicants may well be out of a job, while opportunities are available at a company which owns their former employer. However, given the current state of the law in Ontario, the Board is unable to permit the applications to proceed.
“Brian McLean”
for the Board