2997-00-R Service Employees International Union – Local 528 Applicant v. Ontario Lottery and Gaming Corporation c.o.b. as Windsor Racetrack Slots, Responding Party.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Harold F. Caley for the applicant; Peigi R. Ross, Paul E. Broad and Suellen Glenat for the responding party.
DECISION OF THE BOARD; April 12, 2001
This is an application for certification filed by Service Employees International Union, Local 528 (“SEIU”) on January 12, 2001.
The responding party, Ontario Lottery and Gaming Corporation c.o.b. as Windsor Racetrack Slots (the “employer”), has raised a preliminary objection to the application on the ground that it is barred by virtue of subsection 10(3) of the Labour Relations Act, 1995 (the “Act”). Subsection 10(3), as amended by the Labour Relations Amendment Act, 2000 S.O. 2000, c. 38 (“Bill 139”) proclaimed on December 30, 2000, provides:
10 (3). If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is dismissed.
In the present case, the employer takes the position that the present application for certification brought by SEIU is barred by virtue of an earlier unsuccessful application brought by another trade union.
- The facts relevant to this application were not in dispute and were stipulated by the parties as follows. The National Automotive, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada) (the “CAW”) filed an application for certification on or about June 29, 2000 in Board File No. 1012-00-R in respect of the following bargaining unit of employees of the employer set out in its application:
all Security Officers of the Respondent employed at 5555 Ojibway Parkway, Windsor, Ontario, save and except Dual Security/Supervisor Officers and persons above the rank of Dual Security/Supervisor Officers and Surveillance Personnel and Office and Clerical.
In its application, the CAW indicated that there were thirty-nine (39) persons in that bargaining unit. In its response to the application, the employer indicated that there were forty (40) persons in the CAW’s proposed bargaining unit and listed the names of those forty (40) individuals in Schedule A to its response in the normal course.
By decision dated July 6, 2000 in Board File No.1012-00-R, the Board directed that a representation vote be taken of individuals in the bargaining unit described at paragraph 3 above. By decision dated July 25, 2000, the Board dismissed the application for certification in Board File No. 1012-00-R following the representation vote on the basis that not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant. At paragraph 5 of its decision, the Board set out the mandatory bar contained in the former subsection 10(3) of the Act as follows:
The Board will not consider another application for certification by the applicant as the bargaining agent of the employees in the bargaining unit until one year elapses from the date of this decision.
Following proclamation of Bill 139 on December 30, 2000, SEIU filed the present application for certification on January 12, 2001 with respect to the following bargaining unit of employees:
all security guards employed by the Ontario Lottery and Gaming Corporation c.o.b. as Windsor Racetrack Slots in the municipality of Windsor, save and except supervisors and those above the rank of supervisor.
SEIU indicated that there were thirty-nine (39) employees in its proposed bargaining unit. The employer indicated that there were forty-three (43) employees in the union’s proposed bargaining unit and it identified them on Schedule A to its response to the present application in the normal course.
Thirty-two (32) of the employees identified on Schedule A to the employer’s response were in the bargaining unit proposed by the CAW in its application for certification in Board File No. 1012-00-R. The present certification application therefore represents “another application for certification filed by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application” (the CAW’s application) within the meaning of the new subsection 10(3) of the Act. In this respect, the Board notes that the union did not argue that that precondition to the application of the bar had not been met in the present case, nor did it dispute the employer’s contention that none of the exceptions contained in subsection 10(3.1) of the Act apply in this case.
Instead, in response to the employer’s preliminary objection, the union firstly states that the broader mandatory bar contained in the new subsection 10(3) of the Act does not apply because one of the preconditions to its application has not been met in this case. In this regard, the union argues that the new subsection requires that there be a dismissal of a prior certification application under section 10 of the Act as it exists after Bill 139 and that that precondition to its application has not been met in this case. In the alternative, the union submits that both the presumption against the retrospective application of a statutory provision and the presumption against the interference with vested rights militate against the application of the new broader mandatory bar provision to the circumstances of the present case. The Board will address each of these arguments in turn under separate heading below.
Have the Preconditions to the application of the new bar been met?
The union’s primary argument is that the new bar provisions contained in subsection 10(3) of the Act as amended by Bill 139 do not apply, because one of the preconditions set out therein have not been met in this case. The union acknowledges that the amendments contained in Bill 139 have immediate and general application to applications for certification such as the present one filed after proclamation of Bill 139. The union, however, submits that a plain reading of the new subsection 10(3) of the Act requires that there be a dismissal of a prior certification application under section 10 of the Act as it exists after Bill 139.
In this respect, the union observes that the legislature distinguishes between sections and subsections. Having regard to that distinction, the union argues that the reference to the “dismissal of a certification application under this section” contained in the new subsection 10(3) of the Act should be read as a dismissal of a certification application under section 10 of the Act as it exists after Bill 139. The union distinguishes between the “Pre-Bill 139” section 10 and the “Post-Bill 139” section 10 and notes that the “Pre-Bill 139” section 10 read as follows:
Pre-Bill 139
- (1) Certification after representation vote – The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(2) No certification -The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(3) Bar to reapplying - If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.
(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).
[emphasis added]
Under Bill 139, section 10 of the Act was amended in that subsection 10(3) of the Act set out above was repealed and substituted with a provision that contemplates a broader mandatory bar. The relevant provisions of Bill 139 read as follows:
Bill 139
- Subsection 10 (3) of the Act is repealed and the following substituted:
Bar to reapplying
(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is dismissed.
Same
(3.1) Despite subsection (3), the Board may consider an application for certification by a trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if,
(a) the position of the employee at the time the original application was made was different from his or her position at the time the new application was made; and
(b) the employee would have been in the bargaining unit proposed in the new application had he or she still been occupying the original position when the new application was made.
Exception
(3.2) Subsection (3) does not apply if the trade union whose application was dismissed is a trade union that the Board is prohibited from certifying under section 15.
[emphasis added]
As such, the union points out that the “Post Bill 139” section 10 reads as follows:
Post Bill 139
- (1) Certification after representation vote – The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(2) No certification -The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is dismissed.
(3.1) Despite subsection (3), the Board may consider an application for certification by a trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if,
(a) the position of the employee at the time the original application was made was different from his or her position at the time the new application was made;
(b) the employee would not have been in the bargaining unit proposed in the new application had he or she still been occupying the original position when the new application was made.
(3.2) Subsection (3) does not apply if the trade union whose application was dismissed is a trade union that the Board is prohibited from certifying under section 15.
(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).
[emphasis added]
As previously indicated, the union notes that under Bill 139 the legislature distinguishes between sections and subsections of the Act. For example, section 4 of Bill 139 cited above provides for the repeal of “subsection 10(3)” whereas the new subsection 10(3) refers to a dismissal of “an application for certification under this section.” As such, the union argues that the reference to the dismissal of a “certification application under this section” contained in the new subsection 10(3) should be interpreted as a dismissal of a certification application under section 10 of the Act as it exists after Bill 139.
According to the union, the new subsection 10(3) contemplates a dismissal on or after December 30, 2000, the date the revised section 10 of the Act was proclaimed in force. The union submits that if the legislature had intended to include dismissals under the “Pre-Bill 139” section 10 of the Act as well as dismissals under the “Post-Bill 139” section 10 of the Act, it would have referred simply to a dismissal under subsection 10(2) of the Act. Unlike section 10 of the Act, subsection 10(2) of the Act remains unchanged. As such, the union argues that the legislature’s reference to this section should be interpreted as a reference to the whole of section 10. It submits that one of the preconditions to the operation of the new bar provisions has not been met in this case, since the Board has not dismissed an application for certification under this section as it exists after Bill 139.
The union further contends that its argument in this regard is bolstered by the use of the present tense at the conclusion of the new subsection 10(3) of the Act: “…until one year after the original application is dismissed.”[emphasis added] In the union’s submission, the use of the present tense here supports its argument that reference to a prior dismissal under this section refers to section 10 of the Act as it exists after Bill 139 and not a dismissal under the “Pre-Bill 139” section 10 of the Act.
In response, the employer argues that little can be taken away from the legislature’s use of the present tense in subsection 10(3) of the Act, since the law is meant to apply to situations as they arise until its repeal. In this regard, the employer referred to section 4 of the Interpretation Act, R.S.O. 1990, Chap. 11, which reads as follows:
Law always speaking – s.4
- The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning. R.S.O. 1980, c.219, s.4.
In the employer’s submission, the legislature’s use of the present tense indicates little about when the legislature intended the preconditions to the operation of the new bar provisions to arise, i.e. before or after proclamation of Bill 139. In addition, the employer notes that Bill 139 did not repeal the entirety of section 10 of the Act. It only repealed the former mandatory bar provisions contained in subsection 10(3) of the Act and replaced them with new broader mandatory bar provisions.
Having considered the submissions of the parties, the Board is not persuaded that subsection 10(3) of the Act as amended by Bill 139 should be interpreted as requiring a dismissal of a certification application under section 10 as it exists after Bill 139 as contended by the union. The union’s argument would have perhaps been more persuasive if under Bill 139, the entirety of section 10 had been repealed and replaced with new provisions. However, that did not occur. Instead, it was only subsection 10(3) of the Act, which was repealed and replaced. As such, the relevant provisions of section 10 of the Act relating to the dismissal of an application for certification (i.e. subsection 10(2) of the Act) remains unchanged. Had the legislature intended to restrict the application of the new bar provisions to dismissals under “this section as amended or as it exists after Bill 139”, it was open to it to say so explicitly.
In addition, a review of the former subsection 10(3) of the Act and of the new subsection 10(3) of the Act indicates that one of the preconditions to the application of the new bar (i.e. “If the Board dismisses an application for certification under this section”) is the same as it was under the former bar provisions contained in the repealed subsection 10(3) of the Act. In general terms, what has changed is the scope of the bar. As such, when the legislature referred to a dismissal under this section, it was using the same formulation of that precondition to the application of the bar as it had used under the repealed subsection 10(3) of the Act. In these circumstances, the Board is not persuaded that it should interpret the words “under this section” (as opposed to under subsection 10(2) of the Act) as an intentional reference to section 10 as it exists after Bill 139.
Finally, the legislature’s use of the present tense when referring to the period “after the original application is dismissed” in subsection 10(3) of the Act does not provide much assistance in assessing when the legislature intended the rule to apply. As noted in R. Sullivan, ed., Dreidger on the Construction of Statutes, 3ed. (Toronto: Butterworths, 1994) at 541, little significance attaches to the legislature’s use of the present tense:
Verb Tense. Another pitfall to avoid is attaching inappropriate significance to the tense of the verbs used in legislation. Generally, legislative drafters use the present tense. This is in keeping with the rule that a statute is always speaking and inferences concerning temporal application should not be drawn from the use of this tense.
As such, the Board is not satisfied that the legislature’s choice of the present tense in the new subsection 10(3) of the Act provides any significant degree of support for the union’s interpretation that “this section” means this section as it exists after Bill 139. Accordingly, the Board finds that the preconditions to the application of the new broader mandatory bar prescribed under subsection 10(3) of the Act as amended by Bill 139 have been met in the present case.
Retroactivity, Retrospectivity and Interference with Vested Rights?
In the alternative, the union submits that the presumption against the retrospective application of statutes and the presumption against the interference with vested rights apply so as to preclude the application of the broader bar in the circumstances of the present case. It argues that the application of the new bar provisions to the facts in the present case is retrospective, since it imposes new prejudicial consequences on the trade union and on the employees affected by the application. In addition, the union argues that the new broader mandatory bar provisions should not be interpreted as applying to the facts in the present case, since its provisions interfere with the vested rights of employees affected by the application.
In Pizza Pizza Limited, [1993] OLRB Rep. April 373, the Board provided a useful summary of the principles relevant to the union’s objections:
10 A basic rule of statutory interpretation is that, in the absence of a clear legislative intent to the contrary, legislation should not be construed so as to give it a retroactive or retrospective effect. In this context, there is a subtle but clear distinction between "retroactive" and "retrospective" legislation. Unfortunately, as the British Columbia Court of Appeal observed in Martelli v. Martelli, (1981) 130 D.L.R. 3(d) 300, the nomenclature in this area is sometimes confused. Indeed, sometimes the two labels are used interchangeably without regard to the difference between retroactive legislation and retrospective legislation (see, for example, Venne v. Quebec (C.P.T.A.), 1989 CanLII 84 (SCC), [1989] 1 S.C.R. 880 (Supreme Court of Canada), Attorney General of Quebec v. Expropriation Tribunal et al, [1986] 1. S.C.R. 732 (Supreme Court of Canada)).
In its simplest form, it appears that the distinction between the two is as follows. "Retroactive" legislation looks back in time and changes the law from what it was during a period prior to its enactment. Generally, legislation is made retroactive in one of two ways: it either specifically states that it shall be deemed to have come into force as of some previous specified date, or it is expressed to be operative with respect to past events as of some previous time. "Retrospective" legislation operates only as of the day it is enacted. However, it looks to past events and attaches new consequences to events or transactions begun or even completed prior to its enactment, in terms of the continuing or subsequent effect of such events or transactions. A statute can be retroactive only, retrospective only, or both retroactive and retrospective.
The writings of the noted author Elmer A. Driedger in this area have often been cited with approval by the courts, including the Supreme Court of Canada. In the second edition of his book Construction of Statutes, Driedger offers the following summary (at pages 202 to 203):
A retroactive statute is one that changes the law as of a time prior to an enactment.
(a) A retrospective statute is one that attaches new consequences to an event that occurred prior to its enactment.
(b) A statute is not retrospective by reason only that it adversely affects an antecedently acquired right.
(c) A statute is not retrospective unless the description of the prior event is the fact-situation that brings about the operation of the statute.
The presumption [against retrospectivity] does not apply unless the consequences attaching to the prior event are prejudicial ones, namely, a new penalty, disability or duty.
The presumption [against retrospectivity] does not apply if the new prejudicial consequences are intended as protection for the public rather than as a punishment for a prior event.
The authorities which deal with the question of how newly enacted legislation applies distinguish, for analytical purposes, between "events", and "characteristics" or "status". Of course, a "characteristic" or "status" does not come from nothing. Some "event(s)" must take place before a "characteristic" or "status" can come into existence. Some "events" create a "characteristic" or "status", while others do not. Legislation operates retrospectively if it is triggered by prior events which do not create a characteristic or status. Legislation does not operate retrospectively if it is triggered by a characteristic or status, whether or not some or all of the events which created that characteristic or status occurred before the legislation was enacted. For example, in R v. Inhabitants of St. Mary, White Chapel, (1848) 116 E.R. 811, the statute under consideration provided that:
"No woman residing in any parish with her husband at the time of his death shall be removed, nor shall any warrant be granted for her removal, from such parish, for twelve calendar months next after his death, if she so long continue a widow."
A woman had been widowed and a removal order had been made against her before the statute was enacted. The court held that a widow is a widow whenever she becomes one and that the application of the statute to someone who became a widow before the statute was enacted was not a retrospective application. In R v. Levine (1926) 1926 CanLII 255 (MB CA), 46 CCC 342 (Manitoba Court of Appeal), legislation was passed making it unlawful to possess liquor in places where it had previously been lawful to do so. A person was convicted for unlawfully possessing liquor which she had lawfully purchased and possessed in the same premises before as after the legislation in question was enacted. The court held that the possession was unlawful from the day the legislation was enacted and that this did not constitute a retrospective application of the statute. In Ward v. Manitoba Public Insurance Corp., 1974 CanLII 1117 (MB CA), [1975] 2 W.W.R. 53 (leave to appeal to the Supreme Court of Canada refused 49 D.L.R. (3d) 638n), an insurance statute provided for premium assessments based on demerit points accrued by an insured. The court held that counting demerit points accrued before the statute was enacted was not a retrospective application. In Re Sanderson and Russell, (1979) 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (Ontario Court of Appeal), the court held that provisions in the Family Law Reform Act, (1978) which expanded the definition of "spouse" for support purposes applied in circumstances in which two persons had cohabited for the requisite period prior to enactment, but who had separated and ceased cohabiting some ten months before the legislation came into force. The court held that being a "spouse" was a status, whenever achieved, and that the application of the legislation to those facts was not retrospective. (See also, National Trust Co. v. Larsen, supra).
- The application of newly enacted legislation to an existing characteristic or status is not a question of retrospectivity at all. It is merely a prospective application to an existing situation. Only legislation which looks to and attaches new consequences to previous events raises a retrospectivity issue. Of the three types of legislative enactments identified by Driedger, supra, only one attracts the presumption against retrospectivity:
(a) Legislation which attaches beneficial consequences to prior events does not attract the presumption;
(b) Legislation which attaches prejudicial consequences to prior events does attract the presumption;
(c) Legislation which imposes a penalty on a party described by reference to prior events, but which penalty is not a consequence of such events, does not attract the presumption.
[emphasis added]
(See Elmer A. Driedger, "Statutes: Retroactive Retrospective Reflections" (1978) 56 Canadian Bar Review 264 at page 271).
Retroactivity
- In the Board’s view, the present application does not raise any issue of retroactivity (nor did the union seriously contend that it did) as there is no suggestion in this case that the new broader mandatory bar operates to change the law as of a time prior to its enactment. In fact, the employer specifically takes the position that the new broader mandatory bar only applies to certification applications filed after the subsection came into force. The present certification application was instead filed on January 12, 2001 after enactment of Bill 139 on December 30, 2000. It thus raises the issue of whether or not the amended subsection 10(3) of the Act operates in the present case to prevent the Board from considering an application filed after December 30, 2000 having regard to specific events occurring prior to that date.
Retrospectivity
- The issue in this case therefore centres on whether or not the application of the new broader mandatory bar provisions to the facts in this case involves a retrospective application of the law. As noted in the case law cited above, a retrospective application of the law operates only into the future from the time of its enactment but attaches new prejudicial consequences to events that occurred entirely in the past. The presumption against the retrospective application of a statute generally speaking requires that statutes not be construed as retrospective unless such a construction is expressly or by necessary implication required by the language of the legislation.
i) Prejudicial Consequences?
The Board is firstly satisfied that the new broader mandatory bar provision of the Act imposes new “prejudicial consequences” (ie. a new penalty, disability or duty) in that it imposes a new disability on trade unions other than the trade union that was the subject of the prior dismissal. Under the amendments, the Board will not consider another application by any trade union for a one-year period. The employer, however, correctly points out that the legal consequence of the provision is not a “penalty”. In The Chronicle Journal, [1997] O.L.R.D. No. 903 (April 9, 1997), the Board has previously noted in the context of the mandatory bar provision contained in the former subsection 10(3) of the Act that the bar is not intended as a penalty on parties for pursuing their rights under the Act. These comments are equally applicable in the context of the new broader mandatory bar provisions.
Although the provision is not a penalty, it does nonetheless impose a new prejudicial consequence in the sense that it imposes a new “disability” or disqualification on other trade unions and on employees seeking to be represented by another trade union in the year after the original application is dismissed. As the Board noted in Penny Lane Food Markets Ltd. [1993] OLRB Rep. March 230, whether a provision imposes a prejudicial consequence or not depends on one’s perspective:
Clearly, section 64 was and is intended to confer a benefit upon trade unions which they would not enjoy under the common law or traditional commercial law. Further, it is apparent that the benefit that existed previously in that respect. Whether the amendments result in a corresponding prejudice may depend on one’s perspective, although, as the Saskatchewan Court of Appeal observed in National Trust Co. Ltd. v. Larsen et al. (1989) 1989 CanLII 4769 (SK CA), 61 D.L.R. (4th) 270, “…one’s (sic) man benefit is another’s burden.” Proponents of the amendments to section 64 might say they create no prejudice. It seems likely that employers would beg to differ.
In that case, the Board found that the amendments to section 64 of the Act imposed prejudicial consequences, since, in its view, the amendments would be prejudicial to the responding employer. The same may be said of the new disqualification or disability imposed on trade unions other than the previous applicant in Board File No. 1012-00-R under the new subsection 10(3) of the Act vis-à-vis the applicant in this case and the employees seeking its representation. In these circumstances, the Board finds that the amended subsection 10(3) of the Act does impose new “prejudicial consequences.”
ii) Disqualification for Past Events?
The next issue to be determined is therefore whether or not, on the facts of the present case, the amended subsection 10(3) of the Act attaches those new prejudicial consequences arising from the expanded bar to events that occurred entirely in the past.
The employer takes the position that it does not, since not all of the material facts or events occurred in the past. It argues that the new subsection 10(3) of the Act contemplates two events, the first event being a dismissal of a prior certification application and the second event being a subsequent certification application. The employer takes the position that the provision therefore refers to successive facts. In the present case, the first of those events, the dismissal of a prior application occurred prior to enactment and the second event, the filing of another application, occurred following enactment. As such, the employer submits that the application of the rule prescribed under the new subsection 10(3) in the circumstances of this case is not retrospective, since all material facts have not occurred prior to enactment.
In R. Sullivan, ed., Dreidger on the Construction of Statutes, supra, the author distinguishes between successive, ephemeral and continuing facts and explains how to identify the facts relevant to the operation of a statutory provision and how to locate those facts in time for the purposes of determining whether a provision operates retrospectively, as follows at pp. 514-5:
Identifying relevant facts. Identifying the relevant facts generally is not difficult. Most legislative provisions operate by attaching legal consequences to a fact-situation that is described or referred to in the provision. The relevant facts are those comprising the fact-situation, those that trigger the operation of the rule. If those facts are present in the circumstances of a case, the rule applies. If those facts have occurred entirely in the past, applying the rule will give the provision a [retrospective] effect.
Situating facts in time. Situating facts in time is more difficult because there is no single or obvious way to do it. The model developed by Professor Cote is adopted here. Under this model the key step in recognizing retroactive [retrospective] applications is analyzing the fact-situation set out in the provision to be applied to determine whether it is (1) ephemeral, (2) continuing, or (3) successive.
Ephemeral fact situations consist of facts that begin and end within a short period of time, such as actions or events. The facts are complete and become part of the past as soon as the action or event ends; the legal consequences attaching to the fact situation are fixed as of that moment.
Provisions that impose penal or civil liability generally fall into the ephemeral fact category. This is partly a reflection of the type of facts to which liability tends to attach – single acts, discreet events – but it also reflects an important policy consideration. In keeping with the rule of law, the punitive consequences of actions should be known at the outset and fixed once and for all; to vary consequences later when it is too late to do anything to avoid them would be arbitrary and unfair. Considerations of this sort are relevant in deciding whether a given fact situation should be analyzed as ephemeral or continuing.
Continuing fact situations consist of one or more facts that endure over a period of time, such as ownership or imprisonment or residency. A continuing fact can be any state of affairs or status or relationship that is capable of persisting over time. The duration of a continuing fact is sometimes set out in legislation, in which case the fact is complete and becomes part of the past when the stipulated when the stipulated limit is reached. Cote uses the example of parking: where parking is permitted in a space for a continuous period of three hours, the fact of parking in that space becomes part of the past only when the three hours have elapsed. Where no limit is stipulated, a continuing fact continues and does not become part of the past until the fact itself – the state of affairs or condition or relationship – comes to an end.
This way of analyzing continuing facts also reflects important policy concerns. In keeping with sound social planning, the consequences of continuing facts should not be fixed at the outset, once and for all; it is desirable for the law governing such facts to change from time to time in response to changing circumstances.
Successive fact situations consist of facts, whether ephemeral or continuing, that occur at separate times. For example, a provision that governs the realization of a security interest might describe successive facts, starting with a continuing default on the part of the borrower, followed by notice requirements of various sorts. A fact-pattern defined in terms of successive facts is not complete and does not become part of the past until the final act in the series, whether ephemeral or continuing, comes to an end.
[emphasis added]
Following this analysis, in identifying the facts relevant to the operation of the legal rule (i.e. the legal consequence attending to a fact-situation), the first step is therefore to identify the fact-situation that triggers the operation of the rule. The next step is to situate those facts in time. The rule prescribed under subsection 10(3) of the Act appears to be that the Board shall not consider another application for certification as the bargaining agent of any employee that was in the bargaining unit proposed in the original application. For ease of reference, the Board shall refer to the application for certification simply as a “similar” application for certification. On the other hand, the fact-situation that triggers the operation of the rule appears to be if the Board has dismissed a “similar” application for certification under this section in the prior year.
In the Board’s view, it is not both events (i.e. the prior dismissal and another “similar” application) referred to by the employer that triggers the operation of the rule. The rule applies whether another “similar” application for certification is subsequently filed or not. The second event contemplated under the statute involving another “similar” application for certification forms part of the rule itself. The relevant facts triggering the operation of the rule are simply the dismissal under this section of a “similar” application in the prior year. Once these circumstances arise, subsection 10(3) provides that the Board will not consider another application by any trade union. The rule is engaged at that point and there does not need to be any further event. The Board therefore rejects the employer’s suggestion that the relevant fact-situation, which triggers the legal consequence contemplated by the provision in issue, involves successive facts.
In our situation, the relevant fact-situation triggering the rule involves simply the dismissal under this section of a “similar” application in the prior year, a single fact, which in the present case occurred entirely in the past. The facts in the present case are therefore distinguishable from those before the court in Attorney General of Quebec v. Expropriation Tribunal, 1986 CanLII 13 (SCC), [1986] 1 S.C.R. 732 cited by the employer. In that case, the court found that the provision in issue did not apply retrospectively since the relevant fact-situation involves successive facts, not all of which had occurred entirely in the past. The provision in issue involved a new requirement that an expropriation could not be discontinued without the prior authorization of the Expropriation Tribunal. Prior to the amendment in issue, no prior authorization of the Expropriation Tribunal was required in order to discontinue an expropriation.
The issue in that case was whether the new requirement applied to an expropriation that the government had initiated prior to the amendment or whether the presumption against the retrospective application of a statutory provision required that it only be applied to expropriations initiated after the amendment. In that case, the Court found that to apply the new requirement to an expropriation in progress was to give it immediate effect (and was not retrospective), since the provision contemplated three successive facts (initiation of expropriation, non-payment of indemnity, and intention to discontinue), which were not all in the past. The second of these facts, the initiation of expropriation, was ongoing and the latter fact, the intention to discontinue, was yet to begin.
In the present case, the fact-situation is, however, not successive and is therefore either ephemeral or continuing. The union in effect takes the position that the relevant fact-situation involves a single ephemeral event: “facts that begin and end within a short period of time, such as actions or events”.
Accordingly, the union submits that the situation is analogous to that at issue before the Board in W.G. Gallagher Construction Limited, [1989] OLRB Rep. November 1191 and Penny Lane Food Markets Ltd., [1993] OLRB Rep. March 230. In W.G. Gallagher, supra, the Board found that the sale of business provisions of the Act did not apply to a sale of business (in 1957) which occurred prior to the enactment of the first sale of business provisions of the Act (in 1963). In addition, the Board found that the related employer provisions of the Act did not apply where one of the entities in issue ceased to exist (in 1957) prior to the enactment of the first related employer provisions of the Act (in 1971).
In W.G. Gallagher, supra, although the sale of business/related employer application was filed following enactment of those provisions, the Board found that the application of the provisions to the facts in that case would have been to give the provisions retrospective effect. In other words, applying the sale of business provisions to the facts in that case would have the effect of attaching new legal consequences (the continuation of bargaining rights) to an event that occurred entirely in the past (the sale of business). The Board further found no indication in the legislation of any intention that the provisions were meant to apply retrospectively. Accordingly, the Board dismissed the union’s application.
Similarly, in Penny Lane, supra, the union filed an application under the sale of business provisions of the Act in respect of a sale of business, which sale occurred prior to certain amendments to those provisions on January 1, 1993. In that case, the Board found that the sale of business provisions applicable to the application before the Board were those in effect prior to amendment. In doing so, the Board stated that all events material to the application including the sale of business itself and notice to bargain given by the trade union to the predecessor had taken place prior to enactment of the amendments. As such, the Board found that to apply the amendments to the provisions in issue would be to give the statute retrospective effect. The Board further found that there was no indication of any legislative intention that the amendments were meant to apply retrospectively, which would operate to rebut the presumption. It bears noting, however, that the trade union’s application to the Board in that case, unlike the present application, was filed prior to the amendments in issue.
The Board in both of those cases found that the amended (or new) sale of business provisions did not apply to a sale of business occurring prior to enactment of the relevant legislative amendments. It did so on the basis that the statutory amendment would otherwise have a retrospective effect in that it would attach a new prejudicial consequence to the employer, to an event (a sale of business), which occurred prior to enactment. In those cases, the prejudicial consequence was found to attach to the past event (the sale of business), rather than to any existing state of affairs described by reference to the past event. Similarly, in the present case, the union suggests that subsection 10(3) of the Act as amended attaches new prejudicial consequences to an event (the prior dismissal), which occurred entirely in the past when applied to the facts in the present case.
Given that subsection 10(3) of the Act itself refers to an event (the prior dismissal) and that neither party suggested that the consequences of the provision attach instead to an existing characteristic or status described by reference to that prior event, the Board agrees that the presumption against retrospectivity arises in this case. If the new subsection 10(3) is applied in the circumstances of this case, it would have the effect of attaching new prejudicial consequences (i.e. a new disability) on the applicant and on employees seeking its representation to an event (the prior dismissal) which took place prior to enactment. It therefore remains to be determined whether the presumption is nonetheless rebutted by clear legislative intent that the provision is to apply retrospectively.
iii) Legislative Intention
As previously noted, the general rule that statutes are not to be construed as retrospective may be rebutted if such a construction is expressly or by necessary implication required by the language of the statute. (Gustavson Drilling (1964) Ltd. v. M.N.R (1975) 1975 CanLII 4 (SCC), 66 D.L.R. (3d) 449 at p. 460). For the reasons that follow, the Board finds that the presumption against retrospectivity is in any event rebutted by a review of the legislation itself.
A review of the amendment in issue in the present case reveals that the purpose and intent of the legislative amendment is to impose a broader mandatory bar on subsequent certification applications than existed previously. In this regard, the new subsection 10(3) of the Act replaces the prior subsection 10(3) of the Act, which prescribed a narrower mandatory statutory bar. Under Bill 139, the legislature however provided for the immediate repeal and replacement of that earlier subsection without any provision for its continued application in respect of any certification applications filed after enactment.
If the Board were to accept the union’s position that the new subsection 10(3) of the Act does not apply to applications such as the present one, then a review of the amended legislation discloses that there would, in fact, be no statutorily prescribed mandatory bar applicable at all. This is because, as at the date of application for certification in this matter on January 12, 2001, the Act as amended by Bill 139 no longer contains the narrower mandatory bar prescribed under the former subsection 10(3) of the Act by virtue of its immediate repeal. As such, if the new subsection 10(3) of the Act does not apply then there would no longer be any statutorily prescribed prohibition on the Board considering another application even by the same trade union.
Given that the purpose of the legislative amendment was to impose an even broader mandatory bar on the workplace parties, this is surely a result that the legislature could not have intended. The purpose of the broader mandatory statutory bar is to impose a more complete period during which no “similar” application for certification will be considered for one year following an unsuccessful certification application. The legislature expanded the scope of the statutory bar, which is now applicable to any trade union and not just the same trade union, because of its view that the existing narrower bar did not provide the workplace parties with a sufficient period of repose during which no “similar” application for certification will be considered. In that context, it is, in the Board’s view, inconceivable that the legislature could have intended by its amendment to provide a period during which no mandatory statutory bar is applicable at all in some or all of the one-year period following an unsuccessful application for certification.
However, in considering whether or not the Board can or should consider an application for certification filed in January 2001, the Board must generally have regard to the statutory provisions in effect at that time. If the amended subsection 10(3) of the Act does not apply because it is retrospective in the circumstances of the present case as urged by the union, then no mandatory statutory bar is now prescribed at all even in respect of the same trade union for the balance of the one year period. All that remains is the Board’s decision in the prior certification application filed by the CAW, in which it articulated the statutory bar (now repealed) in effect at the time of dismissal.
While it is possible that the Board’s decision in that regard would be sufficient to preclude another application by the same trade union, the Board nonetheless concludes that the legislature could not have intended that no mandatory statutory bar be in effect at all in these circumstances. Given that the legislature intended to broaden the statutory bar, its decision to provide for the immediate repeal and replacement of the former statutory bar, in the Board’s view, reflects an intention that the broader mandatory bar be applicable to all applications for certification filed after enactment. Had it contemplated otherwise, the legislature would not have provided for the immediate repeal and replacement of the former subsection 10(3) without any provision for its continued application in circumstances such as those in the present case.
Vested Rights
The Board is also not persuaded that the application of the new subsection 10(3) of the Act in the circumstances of the present case interferes with the vested rights of the employees seeking representation by the applicant as urged by the union. As noted by the Supreme Court of Canada in Gustavson Drilling Ltd. v. M.N.R, supra, at page 462 cited below, no one has a vested right in the continuation of the law as it existed in the past.
In Pizza Pizza, supra, the Board distinguished the presumption against the retrospective application of legislation and the presumption against the interference with vested rights as follows, at paragraph 14:
The presumption against the retrospective application of legislation is sometimes confused with the presumption against the interference with vested rights. These two presumptions are related, but not the same. In Re: Royal Canadian Mounted Police Act [1990] 2 FCR 750; 123 N.R. 120, the Federal Court of Appeal suggested that the difference between the two is that the presumption against the interference with vested rights is invoked only when a statute is reasonably capable of two meanings (that is, it is ambiguous) while the presumption against retrospectivity is a prima facie presumption which applies unless it is rebutted. In other words, because the alteration of existing rights is a frequently intended consequence of legislation, the presumption against the interference with vested rights is used only if the legislative intent is unclear. Or, as the Saskatachewan Court of Appeal put it in National Trust Co. Ltd. v. Larson et al, (1989) 1989 CanLII 4769 (SK CA), 61 D.L. R. (4th) 270 at page 277:
"Since most statutes interfere with antecedent rights, while few operate retrospectively - one is the norm, the other is the exception - the presumption against non-interference with vested rights is weaker and more readily overcome than is the presumption against retrospectivity: See Côté at page 124 [of The Interpretation of Legislation in Canada]."
Further, as the Supreme Court of Canada observed in the course of dealing with an income tax case in Gustavson Drilling Ltd. v. M.N.R. (1975) 66 D.L.R. 3(d) 449 at page 462:
"No one has the vested right to continuance of the law as it stood in the past; in tax law it is imperative that legislation conforms to changing social needs in government policy. The tax payer may plan his financial affairs in reliance in tax laws remaining the same; he takes the risk that the legislation may be changed."
In addition, in Gustavson Drilling Ltd., supra, the Supreme Court of Canada went on to explain at p. 463 that:
The mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued: Abbott v. Minister for Lands, [1985] A.C. 425 at p. 431; Western Leaseholds Ltd. v. Minister of National Revenue, 1961 CanLII 774 (CA EXC), [1961] C.T.C. 490 (Ex. Ct.); Director of Public Works et al. v. Ho Po Sang et al., [1961] 2 All E.R. 721 (P.C.).
In the present case, the applicant had a general right to make application for certification to the Board to represent the employees in issue. The employees in issue had and continue to have a lawful right to participate in the lawful activities of the union. The amendments in issue, if found to be applicable to the facts in this case, operate to restrict the trade union’s general right to make application for certification for a period of time.
- Although it was perhaps the hope or expectation of the applicant and the employees in issue based on the prior legislation that SEIU would be able to apply for certification at this time, that expectation is not, in the Board’s view, in the nature of a vested right. That general right to take advantage of the certification provisions of the Act as it existed prior to Bill 139 cannot be said to be specific to either the employees or the applicant, or to be a right accrued to them. In this respect, the Board observes that all of the membership evidence filed with the Board in support of SEIU’s application was dated after December 30, 2000. In all of the circumstances, the Board finds that neither the applicant nor the affected employees can be said to have a vested right to seek the union’s certification at this time.
Disposition
- For all of these reasons, the Board concludes that the new subsection 10(3) of the Act applies in the circumstances of this case to bar the present application. This application is accordingly dismissed.
“Caroline Rowan”
for the Board