0600-01-U Donald J. LeBlanc, Applicant v. Ontario English Catholic Teachers’ Association, Ihor Baczynsky, President, Responding Party v. York Catholic District School Board, Intervenor.

BEFORE: Stephen Raymond, Vice-Chair.

DECISION OF THE BOARD; November 27, 2001

1. By decision dated August 13, 2001, the Board invited submissions from the parties as to the responding party trade union’s submission that this application ought to be dismissed. The Board has received and reviewed the submissions of the parties. For sake of clarity, I will set out paragraph 2 of the earlier Board decision.

The responding party trade union asks that the application be dismissed because:

1. the Labour Relations Board has no jurisdiction to inquire into alleged violations of the Act which occurred prior to July 1, 1998;

2. that, in any event, the Board ought to exercise its discretion not to inquire into this complaint as a result of the excessive duty in filing this complaint; and

3. that even if the Board inquires into the complaint the only allegations that remain are:

(a) the April 5, 2001 arbitration was cancelled and OECTA turned it into a negotiation session between themselves and the Board;

(b) a further arbitration was scheduled for May 3, 2001. Representatives of OECTA met with the Applicant at 8:00 a.m. and advised him that the arbitration was cancelled. Contents of a settlement were disclosed to him and he was advised that if he did not accept it, OECTA would accept it on his behalf;

(c) the Applicant inquired as to why there was no arbitration hearing on May 3, 2001, but no explanation was provided;

(d) the settlement came “nowhere near to his demands”;

and that these allegations do not make out a prima facie violation of the Act.

I note that the reference to “July 1, 1998” in subparagraph (1) ought to have read “January 1, 1998” and that the reference to “excessive duty” in subparagraph (2) ought to have read “excessive delay”.

Issue I. Should the Board inquire into the allegations that occurred prior to January 1, 1998?

2. I find that the Board has no jurisdiction to inquire into the complaints from this applicant that occurred prior to January 1, 1998. The Board dealt fully with this issue in McKever – Board File 1344-98-U. The Board stated:

3. It is clear that statutes cannot have retroactive effect, unless expressly required by the statute at issue (see Gustavsan Drilling (1964) Limited v. Minister of National Revenue (1975) 1975 CanLII 4 (SCC), 66 D.L.R. (3d) 449 (S.C.C.). The amendments to the Education Act make no reference to the retroactive effect of the new rights given to teachers under section 74 of the Labour Relations Act, 1995.

4. A similar issue was before the Board in David E. Smith, [1995] OLRB Rep. June 893. That case involved a statutory amendment which transferred jurisdiction over labour relations from the Crown Employees Collective Bargaining Act (CECBA) to the Labour Relations Act. In that case the applicant brought an application under section 69 [now section 74] of the Labour Relations Act in which the applicant made allegations about events which took place while the union's duty of fair representation was established under the CECBA. The Board dismissed the complaint because, in part, it did not have jurisdiction and stated:

5. In my view, there are essentially two ways in which the Board can have jurisdiction over this complaint. It can have jurisdiction because it is a matter arising under the Labour Relations Act; or, it can have jurisdiction because the Board has been given the power to apply the provisions of the old CECBA and the provisions of the old CECBA in question survive the repeal of the old CECBA as a whole. I find neither ground present in this case to support the Board's jurisdiction. There is nothing in the new CECBA which states that the Labour Relations Act can have any retrospective effect with respect to the rights of those persons formerly under the old CECBA and now under the Labour Relations Act. Both the old CECBA and the Labour Relations Act speak in the present tense and, like all statutes, are presumed to apply to events as they arise. To apply section 69 retrospectively to events prior to February 14, 1994 would be contrary to a basic common law presumption of statutory interpretation, that statutes are not intended to have retrospective application (see, for instance, Re Latif and Canadian Human Rights Commission, (1979), 1979 CanLII 4045 (FCA), 105 D.L.R. (3d) 609 referred to by counsel for the union, and the reference within to Maxwell on Interpretation of Statues, 12th ed. (1969), p. 215).

The facts which give rise to the complaint occurred prior to the time when the responding party's representation of the applicant was governed by section 74. Section 74 cannot be applied retroactively because there is specific authority in the Act, or the Education Act amendments for such retroactive application.

12. That leaves the applicant's argument regarding section 277.16(1) and (2) of the Education Act. Those sections state as follows:

(1) This section applies with respect to a grievance under an agreement or an expired agreement made under the School Boards and Teachers Collective Negotiations Act that arises before January 1, 1998 and is not finally determined by that day.

(2) If a grievance relates to a Part X.1 teacher, the grievance is continued and the designated bargaining agent for the teacher is the bargaining agent representing the teacher for the purpose of the grievance, instead of the branch affiliate that represented him or her before January 1, 1998.

13. Section 277.16(1) and (2) of the Education Act do not give section 74 of the Labour Relations Act, 1995 retroactive effect. The effect of section 277.16 (1) and (2) is to preserve collective agreement grievances after January 1, 1998. Section 277.16(1) and (2) has no impact whatsoever on proceedings before the Board, or brought under the Act. Under no circumstances can it be said that section 277.16 (1) and (2) gives employees the right to complain about the representation they received from their trade union prior to January 1, 1998.

14. Finally, it is also clear that the Interpretation Act is of no assistance to the applicant. Sections 10, 14 and 15 of that Act provide as follows:

15. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

14.‑(1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except as in this Act otherwise provided,

(a) revive any Act, regulation or thing not in force or existing at the time at which the repeal or revocation takes effect;

(b) affect the previous operation of any Act, regulation or thing so repealed or revoked;

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, regulation or thing so repealed or revoked;

(d) affect any offense committed against any Act, regulation or thing so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof;

(e) affect any investigation, legal proceeding or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture or punishment,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act, regulation or thing had not been so repealed or revoked.

(2) If other provisions are substituted for those so repealed or revoked,

(a) all officers and persons acting under the Act, regulation or thing so repealed or revoked, shall continue to act as if appointed under the provisions so substituted until others are appointed in their stead;

(b) all proceedings taken under the Act, regulation or thing so repealed or revoked, shall be taken up and continued under and in conformity with the provisions so substituted, so far as consistently may be;

(c) in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights existing or accruing under the Act, regulation or thing so repealed or revoked, or in any other proceeding in relation to matters that have happened before the repeal or revocation, the procedure established by the substituted provisions shall be followed so far as it can be adapted; and

(d) if any penalty, forfeiture or punishment is reduced or mitigated by any of the provisions of the Act, regulation or thing whereby such other provisions are substituted, the penalty, forfeiture or punishment, if imposed or adjudged after such repeal or revocation, shall be reduced or mitigated accordingly.

15. Where an Act is repealed and other provisions are substituted by way of re‑enactment, amendment, revision or consolidation,

(a) all regulations, orders, rules and by‑laws made under the repealed Act continue good and valid in so far as they are not inconsistent with the substituted Act until they are annulled and others made in their stead; and

(b) a reference in an unrepealed Act, or in a rule, order or regulation made thereunder to such repealed Act, shall, as regards any subsequent transaction, matter or thing be held and construed to be a reference to the provisions of the substituted Act relating to the same subject‑matter and, if there is no provision in the substituted Act relating to the same subject‑matter, the repealed Act stands good and shall be read and construed as unrepealed in so far, and in so far only, as is necessary to support, maintain or give effect to such unrepealed Act, or such rule, order or regulation made thereunder.

15. The requirement in section 10 of the Interpretation Act that statutes be interpreted liberally does not mean that statutes are to be given retroactive effect absent specific requirement in the Act to do so. Sections 14 and 15 protect rights under repealed statutes, statutory provisions or revoked regulations. In this case, there was no statutory duty of fair representation prior to January 1, 1998 which can be protected.

16. The only way that this application can continue is if the application discloses a prima facie violation of section 74 of the Act, based on the trade union's conduct subsequent to the coming into effect of the amendments to the Education Act on January 1, 1998. Since the applicant remains an employee of the School Board and a member of the trade union, the trade union continues to have an obligation to represent the applicant. That representation obligation has been governed by section 74 of the Act since January 1, 1998.

Having decided that, all that remains are the allegations relating to the conduct of the trade union after January 1, 1998

II. Do the remaining issues make out a prima facie violation of the Act or, in the alternative, should the Board exercise its discretion not to inquire any further into the complaint?

3. I cannot dismiss this allegation based on no prima facie violation of the Act. In order to do so, I must be able to find, based only on a review of the submissions of the applicant, that there could be no violation of the Act. I am unable to do so. There are allegations made by the applicant that, if left unanswered, might lead to a find of a violation of the Act. However, the Board will exercise its discretion not to inquire into the allegations if there is a satisfactory explanation provided by the respondent trade union which is not refuted by the applicant. That is the case here and I will exercise my discretion not to inquire any further into this complaint for the reasons set out below.

4. The first matter about which the applicant complains is that the April 5, 2001 arbitration was cancelled and turned into a negotiation session. As is indicated by the documents provided by the trade union, the April 5, 2001 arbitration was not cancelled. The arbitrator chosen by the parties, Mort Mitchnick, was not available to physically attend at the arbitration due to a commitment he had. That commitment was as a mediator in the strike that was at that time in progress by CUPE, Local 4400 against the Toronto District School Board. Mr. Mitchnick did not cancel the arbitration. He contacted the parties and suggested that he be available by telephone should he be able to assist the parties. The parties decided to use the day to attempt to resolve the issues that gave rise to the arbitration. By so doing, the respondent trade union was not acting in any way contrary to the provisions of the Labour Relations Act, 1995, as amended (the “Act”). In fact, given the difficulty of the arbitrator to attend, the respondent trade union acted in an extremely reasonable and rational manner in attempting to use the day to resolve the matter.

5. The second matter about which the applicant complains is the settlement of the matter which was accepted by OECTA on his behalf. He states that the settlement was “nowhere near his demands”. It is well settled law that a trade union acting on behalf of its member has the authority to make a settlement of a grievance over the objection of the grievor. When it does so, it does not automatically violate the Act [see York University, [1980] OLRB Rep. March 383, Superior Ambulance, [2001] OLRD No. 4138]. While there may be circumstances where the decision to do so may be a violation of the Act, such as a situation where the decision to settle is motivated by bad faith, there is no such allegation present here. In fact, OECTA considered the prospects for success at arbitration, the likelihood that a remedy at arbitration would exceed what was provided for in the offer, the risk that the School Board would in any event initiate further litigation before the College of Teachers and decided to accept the School Board’s final offer. In doing so, OECTA acted reasonably and responsibly and in accordance with the obligations owed to the applicant.

6. There is one additional matter upon which I will comment. Throughout the submissions of the applicant there is reference made to his Acadian heritage and the reluctance of the parties to communicate with him in French. I wish to advise the applicant that the Ontario Labour Relations Board offers services at all levels to the citizens of the Province of Ontario in French as well as English and that it is open to him, at any time, to communicate with the Ontario Labour Relations Board in French. It probably did make sense, as the applicant also states throughout his submissions, given the parties and the fact that the employer is an English-based school board rather than a French-based school board that his application was in the English language. There is no requirement, however, that it be so.

“Stephen Raymond”

for the Board