Court File and Parties
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 v. Canadian Merchandising Employees Union, Intervenor.
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; October 1, 2001
Decision
These three applications under the Labour Relations Act, 1995. S. O. 1995 ch.1 (the “Act”) were the subject of a decision dated August 24, 2001. Following the argument and decisions recorded in that decision, the hearings in this matter resumed on August 17 and September 17 and 18, 2001. On these three days, the Board heard evidence from two witnesses called by Supply Chain Express Inc. as to the nature of a portion of its operations, and whether Supply Chain Express Inc. has become involved in interprovincial trucking on a continuous and regular basis. Their evidence dealt with a business Supply Chain Express Inc. has commenced carrying freight between Quebec and Ontario. The witnesses testified that it has done so virtually on a daily basis since April or May of 2001. The matter is set to resume on October 30th and 31st 2001. Counsel for Supply Chain Express Inc. stated that she had one more witness whose evidence would take less than half a day in total. The applicant was the only other party who indicated an intention to call witness, whose evidence, counsel advised, would be even briefer.
The Board is aware that Divisional Court has indicated it will hear the application for judicial review filed by Supply Chain Express Inc. before October 30th 2001. If the motion is unsuccessful, obviously the Board will continue the hearings and likely conclude evidence and argument by October 31st 2001.
If the application is successful, I indicated to counsel on September 18, 2001 that the hearings would proceed on October 30th and October 31st, 2001 in any event. At the very least, all relevant parties agree that the proceedings involving Wilson's Truck Lines Limited and Wilson Logistics Inc. will proceed before this Board to their conclusion. I asked counsel to be prepared to address certain questions. If the issue of whether Supply Chain Express Inc.'s operations are governed by provincial or federal legislation must be determined by the Canada Industrial Relations Board ("CIRB"), and assuming that the CIRB does determine that its labour relations are and have been since April or May of 2001 governed by federal legislation, what effect does that have on these proceedings?
Does this mean that Supply Chain Express Inc. (and presumably the Canadian Merchandising Employees Union) cease to be parties to these proceedings in any fashion? Is this Board deprived of the ability to adjudicate an allegation that Supply Chain Express Inc. violated the Labour Relations Act, 1995 in November of 1999, a time when it acknowledges that it was governed by provincial legislation? Even if this Board can do so, does this affect any possible remedy? For instance, it might be possible to find that Supply Chain Express Inc. had violated the Act in refusing to hire an individual. In such a case, however, is the Board not prevented from ordering the employer to employ or to offer to employ that individual? Can this Board award damages for a violation of the Labour Relations Act, 1995 if one occurred in November of 1999? Would the damages continue to accrue beyond the date on which the nature of the operations of Supply Chain Express Inc. changed? Prospective relief in the related employer application is probably foreclosed, but is it possible, or desirable, to adjudicate the merits of that application as of the day it was filed? Is an application alleging a sale of a business, which would after all be a finding of fact at a single point in time in 1999, different?
With respect to the collective agreement between the Canadian Merchandising Employees Union and Supply Chain Express Inc., the application for termination (Board File No. 0459-00-R) seeks a declaration under section 66 of the Act that the union was not entitled to represent the employees of the employer in the bargaining unit on the day it entered into the collective agreement, i.e. February 26 and 27, 2000. If the business of Supply Chain Express Inc. changed in April or May of 2001 such that its labour relations are now governed by federal legislation, would that fact have any effect on the termination application?
Regardless of which tribunal determines the question of the constitutional jurisdiction of the labour relations of Supply Chain Express Inc., these issues must be addressed to determine what can or should be done with remaining days set for hearing, and with which parties.
The hearings will resume on October 30th, 2001.
“David A. McKee”
for the Board