Ontario Labour Relations Board
0377-01-R Canadian Telephone Employees Association, Applicant v. Certen Inc., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; May 23, 2001
This is an application for certification made pursuant to the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). In the application, the applicant raised the issue of whether the employment relationship between the responding party and the employees in the bargaining unit falls within federal or the provincial jurisdiction. The applicant takes the position that it is within the federal jurisdiction, and has brought proceedings under the Canada Labour Code, RSC 1985 ch. L-2 (the "Code").
The responding party has responded to the application taking the position that the employment relationship of the responding party and the employees in the bargaining unit falls within provincial jurisdiction. A representation vote has been conducted and a majority of employees who cast ballots voted in favour of the applicant. The responding party asserts that the Board must now issue a certificate, as it has no option to do otherwise under section 10 of the Act.
The applicant requests that the Board defer the final consideration of this application until proceedings before the Canada Industrial Relations Board ("CIRB") are complete. It asserts that there is otherwise a danger of conflicting decisions respecting constitutional jurisdiction. This argument, and the cases cited by the applicant are not really on point. If two certificates were to issue, the applicant would suffer no prejudice. If the applicant were successful before one Board and not the other, it would have representation rights in some fashion. If it was unsuccessful before both Boards, that would not be because of the order in which applications were dealt with. If neither Board was prepared to apply the doctrine of issue estoppel to constitutional questions, (or to apply some other doctrine which would prevent a party from raising a constitutional issue, see for example Rogers Broadcasting Ltd. [2000] OLRB Rep. Mar/Apr 384), then this result would only happen if both Boards decided to proceed on the same question and came to different results. The Board notes that, until the parties reach (if they do) the Supreme Court of Canada, any application for judicial review of the two Boards' decisions would proceed through different court systems.
The applicant's real position, it appears to this Board, is that it wants the more extensive relief which may be available under the Code. That is, it is not satisfied with simple representation rights for the employees in the bargaining unit. It perceives, quite correctly, that there is a danger in obtaining a certificate from this Board since the issuing of the certificate may prejudice its application for more extensive remedies from the CIRB.
It is not for this Board to comment on what will or should go on before the CIRB. The applicant may chose to seek whatever rights and remedies in whatever forum it sees fit. It is for that other forum, in this case the CIRB, to determine what is appropriate under its governing statute. While the applicant has won the overwhelming support of the employees in this bargaining unit in a representation vote, it has raised a constitutional issue. That is, there is still a question about the constitutional ability of the Board to issue a certificate to the applicant for this bargaining unit. That matter would have to be litigated before the Board could finally dispose of this application. The question, then, is whether to commence that process now, or wait for the progress or outcome of the application before the CIRB.
There is a prejudice arising from delay. The applicant is presumably prepared to bear that prejudice. However, there is also a prejudice to employees in the bargaining unit. On the other hand, the applicant could have simply pursued its primary position by filing its application under the Code, and not filing this application, and all parties would still be left in the same position that they are today.
The Board is master of its own procedure. In the circumstances of this application the Board is prepared to adjourn the hearing into the constitutional issue for a limited period of time. This matter will be held in abeyance until September 24, 2001. The Board directs the applicant to advise it of the status of the application before the CIRB on or before that date. This Board will require more detail about the application before the CIRB than the applicant has provided to date if it wishes to delay this application beyond that date. If on September 24, 2001 either party wishes to proceed, it should be prepared to estimate the number of days of hearing the evidence and argument on the issue will take, and to suggest a protocol for the exchange of pleadings, documents, and other material before the hearings commence. The parties should also have regard to section 109 of the Courts of Justice Act RSO 1990 ch. C-43.
I will remain seized of this application for the purposes of any matters up to the commencement of the hearings.
"David A. McKee"
for the Board