The Cadillac Fairview Corporation Limited v. United Brotherhood of Carpenters and Joiners of America, 2001 CanLII 16492

Ontario Labour Relations Board

0730-99-R The Cadillac Fairview Corporation Limited, Applicant v. United Brotherhood of Carpenters and Joiners of America and its Locals and Affiliates, Responding Parties.

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Michael D. Failes, Julie McAlpine, Peter Barbetta, David Handley for the applicant; Harold F. Caley and Charles Calligan for the responding parties.

DECISION OF THE BOARD; August 27, 2001

1. On June 8, 1999 the Cadillac Fairview Corporation (Cadillac Fairview) brought an application pursuant to section 127.2 (1) of the Labour Relations Act (the Act) seeking a determination that it meets the definition of “non-construction employer”. Cadillac Fairview seeks a declaration that the collective agreement between it and the United Brotherhood of Carpenters and Joiners of America (the Carpenters) is no longer binding upon it.

2. This matter came on for hearing on August 22, 2001. Between the time this application was filed and the matter came on for hearing, the definition of “non-construction employer” was amended by the Legislature. The Carpenters have brought a preliminary motion seeking a determination that Cadillac Fairview may not maintain this application relying on the “old” definition of non-construction employer.

3. This is not a case of first impression. In Metcalf Realty Company Limited, [2001] O.L.R.D. No. 2440 (June 19, 2001), this same panel of the Board considered a very similar set of circumstances. Both parties agreed that the decision was relevant, but counsel made some different arguments, and presented their slightly different facts.

4. As set out above, this application was filed on June 9, 1999. Hearing dates were set on three different occasions and adjourned for a variety of reasons including counsel availability and an interest in seeing the outcome of similar cases that were proceeding at the Board. Ultimately, the applicant requested that the matter be brought on for hearing, and it was scheduled. The only significant factual distinction between this case and Metcalf Realty is that this hearing had not begun at the time the definition of non-construction employer was amended. In Metcalf Realty, the Board had begun hearing evidence by the time the amendment was introduced.

5. At the time Cadillac Fairview filed its application the relevant provision of the Act read as follows:

126 (1) …

“non-construction employer” means a person who is not engaged in a business in the construction industry or whose only engagement in such business is incidental to the person’s primary business

127.2 (1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.

(2) On the application of a non-construction employer, the Board shall declare that a trade union no longer represents the employees of the non-construction employer employed in the construction industry if, on the day the application is made, the non-construction employer does not employ any such employees represented by the trade union.

(3) Upon the Board making such a declaration under subsection (2), any collective agreement binding the non-construction employer and the trade union ceases to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.

6. On December 29, 2000, amendments to the Act came into effect. The relevant provisions read as follows:

126 (1) “non-construction employer” means an employer who does no work in the construction industry for which the employer expects compensation from an unrelated person.

127.2 (1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.

(2) On the application of a non-construction employer, the Board shall declare that a trade union no longer represents the employees of the non-construction employer employed in the construction industry.

(3) Upon the Board making such a declaration under subsection (2), any collective agreement binding the non-construction employer and the trade union ceases to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.

7. The amendments have no transition provisions. Both counsel agreed that the Interpretation Act is relevant, and in particular section 14:

8. (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 offence 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.

When other provisions substituted

(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.

8. Counsel for the Carpenters suggested that the starting point ought to be Bill 139 which amended the Labour Relations Act. Section 22(2) reads as follows:

The definition of “non-construction employer” in section 126 of the Act, as enacted by the Statutes of Ontario, 1998, chapter 8, section 16, is repealed and the following substituted:

“non-construction employer” means an employer who does no work in the construction industry for which the employer expects compensation from an unrelated person.

9. Counsel argued that the choice of the word “repeal” signalled an intention by the Legislature that the new definition would apply from that point on, to all fact situations, whether or not a proceeding had commenced. To “repeal” a definition, counsel argued, was to annul, revoke or abrogate the definition. Counsel submitted, that in the circumstances, all the Board need do is follow the direction in section 14(2)(b) of the Interpretation Act and “take up” these proceedings and continue them, applying the new definition of non-construction employer to any evidence led.

10. Although counsel indicated a respectful disagreement with the analysis and outcome in Metcalf Realty, he also submitted that the facts before me are different. This case has not begun. Not only has no evidence been led, but the parties did not appear before the Board until after the new definition had been promulgated. In those circumstances, counsel argued, it cannot be said that Cadillac Fairview has an accruing right to have the matter heard and decided under the old definition. Counsel argued that the Legislature has clearly demonstrated an intention to have the new law apply from the date of its proclamation, and the Board should give effect to that intention.

11. Counsel for Cadillac Fairview disagreed with the proposition that repeal of a statutory provision, in itself, causes a party to lose an accrued or accruing right. Counsel relied on Re Bell Canada and Palmer, 1974 CanLII 2512 (FCA), 42 D.L.R. (3d) 1. The head note accurately sets out the issue and conclusion of the Federal Court:

Where a statute confers certain rights upon members of the citizenry together with the procedural machinery to enforce such rights, if the procedure to enforce the rights in a particular case has commenced, the subsequent repeal of the statute and substitution therefor by another statute conferring similar substantive rights but an entirely different procedure does not terminate either the substantive or the procedural rights acquired under the repealed statute.

12. In reaching that decision, the Court referred to the parallel provisions in the federal Interpretation Act. The Court concluded that if they applied at all to the circumstances, about which the Court was not certain, they could not have the effect of taking away the right to pursue a substantive right. In that case, the applicants had commenced legal proceedings to enforce a right provided by the statute, and notwithstanding the repeal and substitution of that provision, the applicants could continue their action.

13. Although the Re Bell Canada and Palmer case was not referred to in Metcalf Realty, that decision had an extensive discussion about the circumstances in which the courts will recognize a right as having accrued, and therefore, being worthy of protection, in the face of legislative change. At paragraph 25 I wrote:

I have outlined the cases relied on by both parties in some detail to highlight that the rationale in each manifests, appropriately, a clear policy basis. When the courts have examined whether to preserve a claim, account has been taken of the nature of the claim asserted, and how far along the applicant was in making the assertion when the law changed. At the risk of oversimplification, in Gustavson Drilling, the Supreme Court of Canada concluded that an unexercised claim to an ongoing income tax deduction was not worthy of protection. In Re Rai, supra, the Court of Appeal preserved an application brought to adopt a child that risked being defeated by a change in the law, that happened during the course of the proceedings. In Scott, the Court protected a physician’s attempt to regain his right to practice in circumstances where he had taken significant steps towards making the application, but had not made the application. In both Re Rai and Scott, supra, the courts concluded that the applicants had taken sufficient steps to claim an important right that would have been defeated by a change in the law occurring after they asserted their claim.

14. I do not share the view of counsel for the Carpenters that the Board’s task is a simple matter of looking at the Interpretation Act, to determine which provision most closely approximates the circumstances. The courts, in both Re Bell Canada and Palmer and the cases cited in Metcalf Realty, have looked to see if any substantive rights are affected by legislative change, and if so, whether those rights are worthy of protection. Most telling, I think, when a party has taken legal steps to assert that right, and commenced a proceeding, the courts have typically ensured that the proceeding is continued under the terms of the legislation before it was amended.

15. Where the legislature intends an amendment to affect outstanding proceedings, it has so signalled. Counsel for Cadillac Fairview gave the Board an example of such a revision, found in Bill 7’s 1995 amendments to the Labour Relations Act, at section 3(2):

A proceeding continuing after the new Act comes into force shall be decided as if the new Act had been in force at all material times. The presiding person or body shall apply the substantive provisions of the new Act as well as the procedural rules established under it.

16. Although counsel for the Carpenters offered me the opportunity to consider these issues again, I remain convinced that a party who has commenced a proceeding at the Board is generally entitled to see it completed and adjudicated under the law as it was when the proceeding commenced. I appreciate that the Board has not started to hear evidence, as it had in Metcalf Realty. I am satisfied that it is enough that the proceeding had been commenced under the old definition of construction employer.

17. This application will be heard having regard to the provisions of section 126 and 127 as they appeared prior to December 29, 2000.

18. This matter will continue on December 19 and 21, 2001, commencing at 9:30 each day at the Board’s premises, 505 University Avenue, 2nd Floor, Toronto, Ontario.

“Mary Ellen Cummings”

for the Board