0459-00-R Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Supply Chain Express Inc., Canadian Merchandising Employees Union, Responding Parties.

2990-99-R Industrial Wood & Allied Workers of Canada, and its Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., and Supply Chain Express Inc., Responding Parties.

3843-99-U Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Wilson Logistics Inc., Supply Chain Express Inc., Canadian Merchandising Employees Union, Tom Rees and Scott Carter, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: James Fyshe and Bill Brady for the applicant; Fred von Veh for Wilson’s Truck Lines Limited and Wilson Logistics Inc.; Andra Pollak, Patricia Bourk and Scott Carter for Supply Chain Express Inc.; Alick Ryder and Tom Rees for the intervenor.

DECISION OF THE BOARD; August 24, 2001

1. These are three proceedings under the Labour Relations Act, 1995, S.O.1995 c.1 as amended (the “Act”). Board File 2990-99-R is an application seeking a declaration that Wilson’s Truck Lines Limited (“WTL”) and “Wilson Logistics Inc.” (“WLI”) and Supply Chain Express Inc. (“SCE”) are one employer for purposes of the Act or that there has been a sale of a business from Wilson Truck Lines Limited to the two other responding parties. Board File 3843-99-U is an application under section 96 alleging that WLI, SCE and the Canadian Merchandising Employees’ Union (“CMEU”) have each, in different ways, violated the Act, particularly with respect to the manner in which SCE first hired (or declined to hire) certain employees, and in the manner in which the CMEU and SCE entered into a collective agreement. Board File 0459-00-R is an application seeking the termination of a collective agreement between SCE and CMEU.

2. The first of these applications was filed January 10, 2000. The hearings commenced in April of 2000. A large number of days of hearings have already been completed and 28 more are scheduled. On July 16, 2001, SCE raised an issue with respect to the Board’s jurisdiction to proceed with these applications at least insofar as SCE was a party. Counsel asserted that SCE’s business had changed since the proceedings commenced and that its labour relations were governed by federal legislation, and specifically Canada Labour Code, RSC 1985 c.L-2 as amended (the “Code”).

3. All counsel agreed that, in most circumstances, the Ontario Labour Relations Board (“OLRB”) has the authority and indeed the obligation to determine whether or not it has the constitutional jurisdiction to hear and decide an application. Reference was made to Cuddy Chicks Ltd. v. Ontario Labour Relations Board, (1991) 1991 CanLII 57 (SCC), 81 D.L.R. (4th) 121 (SCC). See also Toronto Dominion Bank,[1993] OLRB Rep. June 578 (Div. Ct.), applications for leave to appeal to the Ontario Court of Appeal and Supreme Court of Canada denied, and Northern Telecom Ltd. v. Communications Workers of Canada (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3rd) 1 (SCC). In most instances, counsel were agreed that the Board would normally do just that when this issue was raised.

4. However, it is asserted by the responding parties that the Board’s power to determine its own jurisdiction has been eliminated in this case by the passage in 1998 of sections 44(3) and 46 of the Code. These sections provide:

44. …

(3) Change of activity or sale of a provincial business – Where, as a result of a change of activity, a provincial business becomes subject to this Part, or such a business is sold to an employer who is subject to this Part,

(a) the trade union that, pursuant to the laws of the province, is the bargaining agent for the employees employed in the provincial business continues to be their bargaining agent for the purposes of this Part;

(b) a collective agreement that applied to employees employed in the provincial business at the time of the change or sale continues to apply to them and is binding on the employer or on the person to whom the business is sold;

(c) any proceeding that at the time of the change or sale was before the labour relations board or other person or authority that, under the laws of the province, is competent to decide the matter, continues as a proceeding under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party; and

(d) any grievance that at the time of the change or sale was before an arbitrator or arbitration board continues to be processed under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party.

46. Board to determine questions – The Board shall determine any question that arises under section 44, including a question as to whether or not a business has been sold or there has been a change of activity of a business, or was to the identity of the purchaser of a business.

The assertion by SCE is that the nature of its business has changed since these applications were commenced. Thus, SCE asserts that the circumstances envisioned by section 44 (3) have occurred. It argues that section 44(3) is in fact a benefit to a trade union such as the applicant, as without such a provision the union would be deprived the right to continue before the OLRB and would be obliged to start afresh before the Canada Industrial Relations Board (“CIRB”). In that case there might be adverse consequences arising from the need to file a fresh application which would inevitably be commenced at a later date. However, SCE argues that section 46 gives the CIRB the exclusive authority to determine whether or not SCE has become a business whose labour relations are governed by the Code.

5. Before determining whether or not that is the effect of sections 44 and 46, the first question is whether the federal Parliament has the constitutional authority to do what counsel alleges it has done. That is, does the Parliament have the authority to legislate in a manner, which prevents a provincial tribunal such as the OLRB from determining whether it has jurisdiction over the parties and the subject matter of the application before it?

6. Clearly, Parliament cannot pass legislation to affect the activities of a provincial tribunal per se. It can, however, enact legislation, which, by the operation of the doctrine of paramountcy, leaves the tribunal without jurisdiction to deal with certain issues, which have been dealt with in the federal legislation. However, the doctrine of paramountcy applies only in a field of “shared” jurisdiction, where both Parliament and provincial legislatures may enact valid legislation for purposes related to their respective constitutional powers. Professor Peter Hogg in Constitutional Law of Canada, (1997), (Carswell) explains it in this way:

The rule which has been adopted by the courts is the doctrine of “federal paramountcy”: where there are inconsistent (or conflicting) federal laws, it is the federal law which prevails. A similar rule has been adopted in the United States and Australia, and apparently by all modern federal constitutions. The doctrine of paramountcy applies where there is a federal law and a provincial law which are (1) each valid, and (2) inconsistent. … [It] should not be overlooked that the issue does not arise unless each law has first been held to be valid as an independent enactment. In determining the validity of each law, the existence and terms of the other law are irrelevant. Validity depends upon the principles discussed in the previous chapter: does the “matter” (or pith and substance) of the law come within the “classes of subjects” (or heads of power) allocated to the enacting Parliament or Legislature? If one law fails this test, then the problem is resolved without recourse to the doctrine or paramountcy. It is only if each law independently passes the test of validity that it is necessary to determine whether the laws are inconsistent. This may appear to be labouring the obvious, but there are a startling number of judicial opinions which confuse the issue of consistency with the antecedent, and entirely different, issue of validity.

7. Labour relations is not an area of “shared” jurisdiction. It is a matter which falls within the exclusive jurisdiction of either the federal or a provincial government. Hence, the doctrine of the paramount power of federal legislation has no application.

8. The issue of whether the area of labour relations was exclusive or, in some circumstances, shared, was not entirely settled for some time. The question was finally answered, at least in the minds of the Supreme Court of Canada, in 1996 in Commission du Salaire Minimum v. Bell Telephone Company (1966), 1966 CanLII 1 (SCC), 59 D.L.R. (2d) 145 (SCC). However this continued to be the subject of debate within academic circles and among certain lower courts. The entire issue was laid to rest in the trilogy of cases decided by the Supreme Court of Canada in 1998, primarily Commission de la santé et de la sécurité du travail v. Bell Canada (1988), 1988 CanLII 81 (SCC), 51 D.L.R. (4th) 161 (SCC). The majority decision responded directly to criticism of the earlier Bell Telephone decision, quoting extensively from Professor Hogg’s text at page 228 of the D.L.R. report. At page 229 the Court said:

This analysis [i.e. of Professor Hogg’s] gives rise to several observations.

The first is that the criticism says nothing of the close study by Martland J. in Bell Canada 1966 of the relevant provisions of ss. 91 and 92 of the Constitution Act, 1867.

The second observation is that this analysis does not address the essential question raised and answered by Martland J.: the critics refrain from defining the content of the exclusive legislative authority of parliament over federal undertakings. This is necessary because the effect of s. 91(29) and the exceptions in s. 91(10) is to create exclusive classes of subject, those of federal undertakings, to which a basic, minimum and unassailable content has to be assigned to make up the matters falling within these classes. Martland J. considered that the management of these undertakings and their labour relations are matters which are part of this basic and unassailable minimum, as these matters are essential and vital elements of any undertaking. How is it possible to disagree with this? How can the exclusive power to regulate these undertakings not include at least the exclusive power to make laws relating to their management? Additionally, just as the management of the undertaking and working conditions determined by agreement, or by operation of law are parts of the same whole in labour law, how can the exclusive power to legislate as to the management of an undertaking not include the equally exclusive power to make laws regarding its labor relations? To deny this, as the critics have done, is to strip the exclusive federal power of its primary content and transform it simply into a power to make ancillary laws connected to a primary power with no real independent content, apart from the power to regular rates and the availability and quality of services such as telephone services or railway services. The latter undoubtedly fall within the exclusive classes of subject represented by such federal undertakings, but there is nothing in the constitutional provisions, rules or precedents to indicate that the exclusive legislative authority of parliament must or may be confined to so narrow a field. Indeed, rates and availability and quality of services are inseparable from the wage scale that the undertaking must pay, the availability of its manpower, leave, vacation – in short, working conditions. This is why in Bell Canada 1966 Martland J. refers at pp. 148-9 D.L.R., p. 772 S.C.R., to rates and services in their relation to wages, and it is why he comes back to this at p. 153 D.L.R., p. 777 S.C.R., in arriving at his conclusions.

On a “policy” level of analysis, the Court said as p. 232:

That leaves the “policy” argument, according to which it would always be open to Parliament to protect federal undertakings against provincial statutes by an exercise of its so-called ancillary power and the application of the paramountcy of federal legislation.

I must say that I find very little merit in such an argument, both in general terms and when invoked in the particular field of occupational health and safety.

It is an argument which relies on a spirit of contradiction between systems of regulation, investigation, inspection and remedial notices which are increasingly complex, specialized and, perhaps inevitably, high detailed. A division of jurisdiction in this area is likely to be a source of uncertainty and endless disputes in which the courts will be called on to decide whether a conflict exists between the most trivial federal and provincial regulations, such as those specifying the thickness or colour of safety boots or hard hats.

Further more, in the case of occupational health and safety, such a twofold jurisdiction is likely to promote the proliferation of preventive measures and controls in which the contradictions or lack of co-ordination may well threaten the very occupational health and safety which are sought to be protected.

Federalism requires most persons and institutions to serve two masters; however, in my opinion an effort must be made to see that this dual control applies as far as possible in separate areas.

With all due respect for the opposite view, therefore, I think that the decision in Bell Canada 1966 is correct.

This decision has settled the matter in Canadian law. I note that Professor Hogg’s subsequent edition of the text on Constitutional Law concedes, if somewhat grudgingly, that there is no room left for debate on that issue.

9. Parliament has no authority to legislate with respect to the activities of a provincial tribunal unless it does so pursuant to its authority to legislate in any field generally. Section 44 is an example of such legislation. However, section 46 cannot affect the ability of a provincial tribunal acting within its legislative authority to deal with the question of whether it has the jurisdiction to consider an application or not. As SCE argued it “the federal statute has removed [the OLRB’s] jurisdiction in these very limited circumstances”. According to this argument, the Board had the jurisdiction to determine its constitutional jurisdiction before the 1988 amendments, but this was removed by the amendments to the Code. With all due respect, Parliament lacks the power to do so and I do not read section 46 as having that effect. Its effect is simply, in my view, that the CIRB has the authority to determine if section 44(3), is applicable for the purposes of a proceeding under the Code. This Board has no jurisdiction to decide that the CIRB ought to hear this case or some part of it under section 44(3). Any decision of this Board is of no force whatsoever in the application of Code.

10. The Ontario Legislature has the exclusive authority to legislate with respect to labour relations of parties who fall within the provincial jurisdiction. The OLRB is a tribunal created by Act and derives its authority in these proceedings exclusively from that statute. It derives no authority from the Code. The question of the Board’s jurisdiction to entertain or continue with an application was raised. It is the obligation of this Board to determine that question in the first instance. To defer the decision of jurisdiction to another tribunal, without statutory justification in the Act, would be a wrongful declining of jurisdiction.

11. This result may be unsatisfactory from a number of points viewed. In 1997 the Canada Labour Relations Board (as it then was) heard an application for certification and determined that, notwithstanding a decision by the British Columbia Labour Relations Board that the employer’s operation was federal, concluded that it was in fact provincial. The Board recognized the unsatisfactory nature of that kind of proceeding and said:

It is greviously unfortunate that both the provincial and federal labour relations boards found themselves to be without jurisdiction. We trust that the distinctions between this and the E. Lobe Contracting Ltd. case will assist future construction industry parties to find their proper forum. In this case, we are hopeful the British Columbia Board will reconsider its earlier decision and entertain the application filed with it. In future cases, where constitutional jurisdiction is in doubt, we suggest unions proceed simultaneously before both the federal and provincial boards and direct the attention of the boards to the fact that two applications have been filed. Hopefully, this Board and any provincial board concerned will be able to cooperate in determining which one has jurisdiction. (Teamsters Local 213 and General Enterprises Ltd., [1977] 1 CLRBR p. 432.

12. Since that time these sentiments have been echoed by a number of commentators and labour relations boards. Beyond that, the applicant may well have greater difficulty in establishing its claim to the relief sought in these proceedings, if different parts of the case are heard in two different proceedings with different parties before a different tribunal. That is regrettable but not unique to this case.

13. It was suggested by the applicant that section 44(3)(c) could be interpreted to allow this Board to continue with the case presumably applying the Act to some parties and the Code to others. Assuming that this was even possible, and that section 44(3)(c) is intended to bring about that result, there is no authority in the Act to do that. To give this Board, which is only a statutory tribunal, the authority to do something, that power must be expressed in its statute. It may not be done by the statute of another jurisdiction, even where there is some contractual or other non-legislative agreement by the province in question. In Re: Reference re Anti-Inflation Act 1976 CanLII 16 (SCC), [1976] 2 SCR 373, the Supreme Court of Canada dealt with the validity of the Anti-Inflation Act passed in 1975. It upheld the constitutional validity of the Act, primarily under the “peace order and good government” authority of the federal government. However, as an alternative, the Province of Ontario suggested that it had, in accordance with the Anti-Inflation Act, contracted into the legislative scheme by executing a contract with the federal government to do so. The Supreme Court of Canada said in response to that:

The contention of the Attorney-General of Ontario that the Crown in right of Ontario, represented by the Lieutenant-Governor, has a common law power and capacity to enter into agreements if there are no statutory restrictions does not answer the question of authority to effect changes in Ontario Law through such agreements. The issue here is not prerogative power alone or the authority to exercise a prerogative power when given by order in council so as to place responsibility for it upon the Ministers present at the meeting of the Executive Council. Nor does the issue engage any concern with responsible government and the political answerability of the Ministers to the Legislative Assembly. Rather what is at issue is the right of the Crown, although duly protected by an order in council, to bind its subjects in the Province to laws not enacted by the Legislature nor made applicable to such subjects by adoption under authorizing legislation. There is no principle in this country, as there is not in Great Britain, that the Crown may legislate by proclamation or order in council to bind citizens where it so acts without the support of the a statute of the Legislature: see Dicey, Law of the Constitution (10th ed. 1959), pp. 50-54.

Without corresponding authority in the Act, any purported grant of authority from the Code may not be exercised by this Board.

14. The substance of the above decision was rendered orally on August, 16, 2001. The next day was also scheduled for the hearing of this matter. I directed the parties, therefore, to turn to the evidence and argument relating to the constitutional status of the SCE. I asked counsel to address, not only the question of whether the business of SCE falls within federal or provincial jurisdiction, but, if it does fall within federal jurisdiction, what effect this has on each of the applications or any part of them involving SCE.

15. Although it goes without saying, with respect to proceedings before the CIRB, any party is free to do as they or it see fit. Obviously this Board has no authority, or legal interest, in what steps parties take before the CIRB and nothing this Board says or does should inhibit or encourage any party from taking or not taking any steps it feels are appropriate.

Adjournment request

16. This decision was originally delivered in a somewhat more abbreviated form orally at a hearing on August 16, 2001. Counsel for SCE and WLI and WTL then requested an adjournment until the decision could be produced in writing.

17. First, counsel for WTL and WLI asserted that I could not have drafted the decision in the “thirty minutes” of the adjournment. He wanted time to consider the decision. I advised him that the decision had in fact been drafted in that time, although I had obviously done some research on the issue before the day of argument. Counsel agreed that there was nothing improper about a tribunal doing just that.

18. Nonetheless, counsel wished the opportunity to consider the decision, including, obviously, any right they might exercise to pursue an application for judicial review. Indeed counsel for SCE was concerned that any application for judicial review would become moot if the Board commenced to determine the issue of whether SCE fell within federal or provincial legislation. I declined to grant the adjournment. The Board rarely adjourns proceedings to await the outcome of a potential application for judicial review. In this case the hearing of this application has been in progress for over a year. The first day of hearing was June 28, 2000 (with one day of hearing on a related matter May 8, 2000). There are 28 more days scheduled. These dates were set before the constitutional issue arose. This is the twelfth procedural decision issued in this case. We have heard the testimony of only two witnesses.

19. There would be only one more day of hearings before the written version of this decision was delivered to counsel. In the circumstances, I declined to adjourn this case pending any potential application for judicial review brought by any of the parties. The hearing proceeded at 9:30 a.m. the following day.

Reconsideration request

20. On August 17th, counsel for WTL and WLI requested that the Board reconsider its decision not to adjourn the proceedings to await the production of a written version of the decision rendered the day before. He argued that he was entitled to an adjournment on the basis of the rules of natural justice and specifically, the rule "audi alteram partem". He asserted that if the Board proceeded on that day his client would be denied to the right to consider, assess and respond to the decision in the same manner that he had been able to consider, assess and respond to the argument of the party opposite.

21. He stated that the decision relied on cases cited by no one in argument, and the subject matter of the decision went to the heart of the issue of the jurisdiction of the Board and the application of "the federal Code". If the Board proceeded on that day, evidence would be called on the very issue ruled on orally by the Board the previous day.

22. Counsel repeated his accusation that "it is quite obvious from the oral decision you read that it was not drafted yesterday. You left at 11:14 a.m. and returned at 11:56 a.m.. It is obvious that the decision was not created during that time". He complained that no reliance was placed on any of the authorities referred to by counsel that day. He submitted that all counsel require the benefit of receiving and understanding the decision. The subject matter is a complex one and the implications are far-reaching in counsel's view.

23. Counsel cited Board of Education vs. Rice [1911] A.C. 179 at p. 182 for the proposition that a party is entitled to know in advance any information prejudicial to its case or to have the opportunity to correct any relevant statement. Since he did not have a written copy of the decision, he was unable to consider what his position should be and whether to seek reconsideration of the decision or to seek judicial review.

24. Counsel for SCE supported the request of counsel for W. L. I. She argued that the decision was based on none of the issues raised by her or any other counsel. She asserted that she had prepared argument on the doctrine of paramountcy and had several arguments to make. However she felt it was unnecessary to address those arguments to the Board has counsel for the IWA had not raised the issue.

25. Counsel for the CMEU took no position.

26. Counsel for the IWA asserted that he had in fact made the argument, although without reference to case law, " that Parliament lacked the authority to modify the jurisdiction of the Province, or a provincial tribunal, enunciated in section 92 (13) of the Constitution Act”. That was fundamental to his argument and counsel opposite had chosen not to respond.

27. I dismissed this motion in oral decision which is reproduced below. However some further comment is necessary as well.

28. On July 16, 2001, counsel for SCE had in fact outlined her argument. Although she had served a Notice of Constitutional Question on all parties and the relevant Attorneys-General, she was not prepared to make her argument that day. The matter was therefore adjourned to August 16th 2001. In a decision rendered orally on July 16th, and later produced in written form in a decision bearing that date, I ruled as follows:

Following submissions from counsel I ruled as follows with respect to the next days of hearing.

On August 16, parties should be prepared to deal with the following issues:

(1) SCE alleges that its labour relations fall within federal rather than provincial jurisdiction. Does the Canada Labour Code deprive the Ontario Labour Relations Board of the power to determine whether in fact the labour relations of SCE are governed by federal or provincial legislation?

(2) Even if the labour relations of SCE are governed by federal rather than provincial legislation, does the relevant legislation give the Ontario Labour Relations Board the authority to continue with and dispose of these applications?

(3) If the relevant legislation does do so, what statute or case law is applicable?

Argument proceeded on this basis on August 16.

29. With respect to the issue of when the oral decision was drafted, I can do more no more than repeat what I said on August 16th. The decision was drafted during a break after argument. The issue was raised and outlined by counsel for SCE a month earlier. It was an argument I had not heard before and it gave me considerable thought. I proceeded to do some research on the subject. I made copies of extracts from the cases I thought were important (I expected to receive full copies of these fundamental judicial authorities from counsel in argument) I highlighted certain portions of those photocopies. I made some notes both in the margin of these copies and on other pieces of paper. It was obvious to all in the hearing room that I was relying to some extent on these notes and photocopies in reading my decision. The resulting roughness of composition is one reason for redrafting the decision as has been done above. The drafting of the decision was, however, done on August 16th following argument. As to counsel's assertion that this statement is a falsehood, I do not consider any response necessary or appropriate.

30. It is true that my decision makes very little reference to arguments made by counsel for the responding parties. These arguments were briefly as follows.

SCE

31. Counsel asserted that section 44 (3) of the Canada Labour Code governed this situation. Subparagraphs (a) and (b) apply without the need for action by any party unless a dispute arises. However section 44 (3) (c), does require some action. Section 46 requires that the CIRB determine all questions arising under section 44. There is no case law on this section. In her submission it is necessary for the IWA to proceed to the CIRB. Otherwise these proceedings should be terminated. Section 44 (3) "kicks in" as soon as there is a change in the activity of an employer. In this case there was no obligation on the employer to proceed to the CIRB. SCE has no interest in proceeding before any tribunal. Accordingly the obligation was on the IWA to make application to the CIRB.

32. Before the enactment of section 44, the OLRB would have determined its own jurisdiction. That is, it would have determined whether federal or provincial law governed the operations of SCE. However, the Canada Labour Code "has removed [the OLRB's] jurisdiction in a limited sense. Although it would normally be the [OLRB's] jurisdiction to determine the question of whether SCE's operations were federal or provincial, [the OLRB] a may no longer do so because of the Canada Labour Code".

33. In the alternative, counsel argued that the Board might wish to guard against a frivolous challenge to its constitutional jurisdiction by requiring SCE to state its best case to determine whether or not there is a prima facie case that SCE is governed by federal legislation. However she cautioned that if the OLRB did proceed in this fashion, it should be aware that the standard of a prima facie test is a very low threshold.

34. Counsel stated that the purpose of section 44 and section 46 was to alleviate the problem referred to by the Canada Labour Relations Board in a 1977 decision involving General Enterprises Limited, a decision of which she did not provide a copy to the Board.

CMEU:

35. Counsel agreed that the OLRB would normally determine whether or not it had to jurisdiction over the operations of an employer but for the enactment of section 44 and section 46 of the Canada Labour Code. He asserted that any party could go to the CIRB at any time and outlined steps that his client would likely take before the CIRB regardless of what this Board did. He indicated that he would not be pursuing the argument raised on July 16th that the Board might have some authority to continue its proceedings under section 44 (3) (c).

WTL and WLI:

36. Counsel supported the position taken by SCE. He agreed that previously the Board would hear evidence and argument about the constitutional jurisdiction of any particular party. He cited an example of a case he had been involved in referred to as Municipal Tank Lines (no citation was given). However, he argued that this old system had been changed by section 44 (3) (c). He referred to an unspecified passage in Driedger’s text on the Construction of Statutes for the proposition that the Board was functus. He argued that the only sensible solution was that the IWA withdraw these proceedings as against SCE and the CME and proceed against those parties before the CIRB. Otherwise the proceedings were "tainted" by their presence and this matter could not proceed before this Board but could only proceed before the CIRB. He further gave notice that his client would take the position in any proceeding before the CIRB that they were governed by provincial authority and that the CIRB had no authority to grant and any remedy with respect to his clients.

IWA:

37. Counsel argued that the Board did have the power to decide its own jurisdiction. He referred to Cuddy Chicks Ltd. v. OLRB, supra, but did note that it had been decided before 1998 when section 44 and 46 were added to the Code. He argued that section 46 of the Code meant only that the CIRB, and not a court, had the jurisdiction to decide whether or not the Code governed the operations of any employer. He asserted that Parliament cannot remove the right of a provincial tribunal to determine its own jurisdiction and had no authority to do so. The statute should not be interpreted to impute an intention to Parliament that it was attempting to do any such thing. He further argued that if any party asserts that the matter ought to be before the CIRB, it is up to that party to proceed to that forum.

38. He also followed up on the suggestion first raised by the CMEU that section 44 (3) (c) could be read to give authority to the OLRB to determine the question of federal or provincial jurisdiction. This argument was based on emphasis on the word "continues". Counsel asserted that the matter could continued before the OLRB (where it started) but that it could not logically "continue" before the CIRB, where it would in fact commence.

39. Finally he asserted that by analogy to section 48 (12) of the Act and pursuant to its "inherent jurisdiction" the Board could determine its own jurisdiction.

Reply:

40. It is not necessary to detail the arguments made in reply. Suffice it to say that none of the responding parties responded to the argument raised by the IWA that Parliament lacked the authority to remove the right of a provincial tribunal to determine its own jurisdiction.

41. As can be seen from these arguments, only the IWA approached the fundamental question raised by this issue. All of the other arguments raised were with respect to the meaning to be given to sections 44 and 46 of the Code and what consequences flowed from these proposed interpretations. None of the responding parties addressed the issue of whether section 46 of the Code could apply to a proceeding before this Board at all.

42. The Board has an obligation to deal with all issues before it, particularly when the issue goes to the Board's jurisdiction. That obligation is independent of any issue or argument raised by any of the parties. With respect to the issue of constitutional jurisdiction I felt it was appropriate to do some considerable research to ensure that I fully appreciated the issues that might arise in argument made by counsel on this issue, or issues that were on relevance to the Board's determination of the issue. Since no counsel was particularly helpful in what I perceived to be the fundamental question raised by this issue, that proved to be a wise course of conduct. With respect to the arguments made by counsel for the responding parties, since I have concluded that the application of the statute is not relevant to these proceedings, and since the Code is a statute which the OLRB has no jurisdiction to interpret or apply, it was unnecessary and inappropriate to deal with arguments made by counsel. That did, however, mean that the decision was relatively quick to draft.

43. With respect to the principal of audi alteram partem, that is a principal which has no application in the manner suggested by counsel. First, the Board is not a party to the proceedings. Second, the Board is not in possession of any "information" or "evidence". If it had been, it would have been necessary to disclose that fact to the parties at the earliest opportunity. What the Board had was an understanding of issues and knowledge of case law relevant to the issue being argued. The Board is obliged to come to a decision on legal issues before it. It is not obliged to discuss its preliminary views of what those issues are or to solicit counsel's opinions on any particular approach to the question beyond those arguments counsel themselves choose to make.

44. It is not appropriate to adjourn a proceeding to permit a party to determine whether or not it wishes to making an application for reconsideration of the decision. While the Board has the power to reconsider a decision for any reason at any time, generally the Board restricts applications for reconsideration to circumstances were the opportunity to present evidence or argument was not reasonably available before the first decision was rendered, and where that evidence or argument would be virtually determinative. (The other major category, a decision that appears to ignore the long-standing board policy, is not relevant here). The power to the reconsider a decision is not meant as an opportunity for counsel who have received an unfavourable ruling immediately to recommence their argument using similar or new arguments. If the argument of SCE was that Parliament had "removed" part of the OLRB's jurisdiction, one would have thought that Parliament's constitutional ability to do so would be the first and fundamental question that counsel would address. Except for counsel for the IWA, none did. If counsel for SCE had prepared arguments about paramountcy, she ought to have made to those arguments in the first place. It is inappropriate on an application for reconsideration to make arguments that could and should have been made in the first instance, particularly when counsel was aware of them.

45. Finally, the Board has rarely adjourned a proceeding pending the outcome of application for judicial review (and never when a party simply requests the opportunity to consider one). Parties are free to take any action they feel appropriate and in fact should do so. Whether or not Divisional Court would hear an application at this point in the Board's proceedings (see International Brotherhood of Electrical Workers [1977] OLRB Rep. May/June 557) is a matter for Divisional Court, not this Board to determine. However, it is clear that, unless the application under section 6 (2) of the Judicial Review Procedure Act is successful, the hearing of any application for judicial review would be many months away. It is not appropriate to adjourn a case, particularly in the circumstances of one as long-lasting as this one, where the Board is convinced it has the jurisdiction to proceed. In these circumstances the Board is obliged to proceed to hear and determine the applications before it.

46. Counsel for SCE and WTL argued that to commence to hear evidence before the parties had a written copy of the decision in their hands, would render any application for reconsideration or judicial review (assuming, of course, that one were ever to be made) moot. Since there was only one day of evidence scheduled before the hearings resume in September, and since it was unlikely that the hearing of evidence in argument would be completed one day (in fact it was not), this argument was given no weight.

47. After the completion of argument by counsel on the request for a reconsideration of the decision not to adjourn the day, I rendered an oral decision which is, with some grammatical corrections, reproduced below:

The request for reconsideration is denied.

The power to reconsider is rarely used to challenge a ruling that has just been made. For the Board to entertain the request for reconsideration in those circumstances, there would have to be a very unusual circumstances, and none exist here.

Second, with respect to the alleged violation of the rules of natural justice I would respond as follows. The Board was not in possession of information which it withheld from the parties. Were it in possession of facts or information, it would be incumbent on the Board to advise all parties before argument even began. In fact the Board was not in possession of any information or factual matter, and none is suggested in the decision that was rendered yesterday. In addition, the Board is not a party opposite in interest to any one or more of the parties in this proceeding. The obligation of the Board is to adjudicate matters which parties bring before the Board.

This issue was raised by the parties on July 16th. It was, frankly, an argument I was intrigued by. It is not something I had thought of before, and certainly was not contained in the Notice of Constitutional Question filed by SCE. At that time I was entirely unfamiliar with sections 44 and 46 of the Canada Labour Code. I engaged in some research and devoted some thought to the issue. As counsel for WTL conceded, there is nothing wrong with that.

In drafting the decision, I relied on some of the cases that I had read. In rendering a decision on any matter, and particularly on a jurisdictional matter, the Board is not obliged to limit itself to the arguments made by counsel before it. Certainly it is not obliged to accept the focus of any counsel or party as to the approach or focus with respect to the issue. In any event in the issues were not new on the 16th of August. By way of example, Mr. Ryder, argued on July 16th that section 44 (3) (c) might give the Board the jurisdiction to continue the proceedings under the Canada Labour Code, but for absence of authority in the Act. It was that argument which led to my review of the Reference Re: the Anti-Inflation Act. Mr. Ryder did not repeat that argument on August 16, but Mr. Fyshe did, and it was therefore necessary to deal with the issue at that time.

The issues in my decision were therefore very much part of the issue raised by counsel on July 16th, 2001. While the references to caselaw may have been new to counsel on August the 16th, the issues were not. Since this is an issue of the jurisdiction of the Board, the Board must be satisfied that it has the jurisdiction to proceed, regardless of what argument is made or not made on the issue by counsel.

The parties are not prejudiced in any way by proceeding with the case. On July 19, 2001 I issued a decision advising the parties to be ready to proceed with evidence and argument with respect to the constitutional status of SCE on August 17th, 2001. On August 16th counsel for SCE said she was prepared to proceed. Parties cannot be prejudiced by the result of a motion about whether or not the Board will proceed. The answer to that motion was to be either "yes" or "no", neither of which is difficult to understand, even if the reasons are, as suggested, complex. The answer is "yes", and I direct SCE to call its witness on this matter.

48. SCE then proceeded to call evidence which was not finished by the end of the day. The next day for hearing is September 17, 2001.

“David A. McKee”

for the Board