The Great Atlantic & Pacific Company of Canada, Limited v. The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America
0098-99-R The Great Atlantic & Pacific Company of Canada, Limited, Applicant v. The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Responding Party.
0484-01-R The Great Atlantic & Pacific Company of Canada, Limited, Applicant v. The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: David C. Daniels, T.A. Zakrzewski, Pat Lacivita and Chris Appleton for the applicant; Harold Caley and Bud Calligan for the responding party.
DECISION OF THE BOARD; October 9, 2001
1These are two applications seeking a determination that The Great Atlantic and Pacific Company of Canada Limited (A&P) meets the criteria of “non-construction employer”. This decision concerns the preliminary motion brought by the United Brotherhood of Carpenters and Joiners of America (the Carpenters). The Carpenters submit that A&P may not maintain its application in Board File 0098-99-R because of its delay in bringing the matter on for hearing. In any event, the Carpenters submit, A&P is not entitled to maintain its first application to the extent that it wishes to rely on the definition of “non-construction employer” as it existed when the application was filed. Rather, the Carpenters submit, the matter should be heard, if at all, with regard to the definition of “non-construction employer” found in the Labour Relations Act, 1995 today.
2Board File 0098-99-R was commenced on April 12, 1999. Pleadings were completed and a meeting with a Labour Relations Officer was held. A&P did not seek to have the matter listed for hearing, nor did it ask to have the matter adjourned. There may have been, as counsel for the A&P submits, discussions with the Registrar and with the Labour Relations Officer, but there is no dispute that no steps were taken to schedule the matter or to adjourn it.
3At the time A&P 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.
4On December 29, 2000, amendments to the Act came into effect. The relevant provisions now 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.
5The amendments have no transition provisions. Both counsel agreed that the Interpretation Act is relevant, and in particular section 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 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.
6A&P wants the Board to consider its evidence and arguments having regard to both the “old’ and “new” definition of non-construction employer. Consequently, on May 9, 2001, it filed a second application, Board File 0484-01-R. In answer to the application form question, “the applicant says that it is a non-construction employer for the following reasons”, the applicant referred to the criteria in both the definitions of non-construction employer. However, A&P did not ask that both files be listed for hearing. Not surprisingly then, when this matter first came on for hearing on August 20, 2001, only the second application was listed. At that point, the Carpenters strenuously resisted A&P’s efforts to have both applications placed before the panel, and the hearing was adjourned to permit the parties to prepare their arguments on the Carpenters’ motion that A&P was precluded from resurrecting the first file on account of delay and on the basis that the Board was required to apply the new definition of non-construction employer, so there was no real point to having both applications before the panel.
7Both counsel were aware that this panel of the Board had already determined in two decisions that a proceeding that had commenced under the old definition would be concluded and adjudicated under the pre-amendment definition. I came to that conclusion in Metcalf Realty Company Limited, [2001] O.L.R.D. No. 2440 (June 19, 2001) where the Board had started to hear evidence before the new definition was proclaimed and in Cadillac Fairview Corporation Limited, (August 27, 2001, Board File 0730-99-R) where the application had been brought but the hearing had not commenced at the time the amendments were proclaimed. An application for judicial review has been brought with respect to the Cadillac Fairview Corporation Limited, supra, decision.
8Although counsel for the Carpenters courteously maintained his disagreement with the Board’s previous decisions, and reiterated his arguments, I am, respectfully, not convinced that my earlier decisions were wrongly decided. The reasoning of each can be found in paragraph 14 of the Cadillac Fairview, supra, decision:
- 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.
9The facts before me in this case are no different. A&P commenced a proceeding under the old legislation. Its substantive rights might well be affected by the change in definition. A&P is entitled to have its rights determined under the law as it existed when it commenced the proceeding.
10Turning now to the argument that the Board ought to dismiss the application for delay, counsel for the Carpenters acknowledged that the Board has rarely entertained such arguments. The Board is more accustomed to considering arguments about delay between the time an applicant knows or ought to have known about the facts giving rise to the claim and the actual commencement of the proceedings. In the Board’s view, the cases around delay in bringing proceedings are not helpful. The Board has typically been concerned about prejudice to parties, and prejudice to the speedy resolution of labour relations matters if an applicant delays unduly in advising the party opposite that he or she is aggrieved and intends to bring a proceeding. Delay in advancing a proceeding does not carry the same prejudice. The party opposite already knows that a proceeding has commenced, and the nature of that proceeding.
11Counsel for the Carpenters submitted that he assumed the first application was “dead” when A&P did not advance it, and that view was reinforced when the second application was brought. In the Board’s view, it was not reasonable for counsel to make such an assumption. Proceedings brought to the Board are typically disposed of one way or another, even if only by way of a sine die adjournment that terminates the proceedings when one year passes. In any event, counsel did not assert that he or his client had taken any steps in reliance on that assumption.
12Monte Carlo Carpentry [1982] OLRB Rep. June 914 is relied on by the applicant as a case in which the Board did not permit an applicant to continue an application for certification that was not processed by the Board, an error that the applicant did not bring to the attention to the Board for 8 months. In the intervening period, the bargaining rights for that bargaining unit has been granted by the Board to another union. That case is most exceptional. One of the two trade unions would have been prejudiced in a quite serious way whichever way the Board decided. The Board determined the union that had not brought the Board’s error to its attention in a timely way had been best placed to avoid the problem, and so, should be visited with the consequences of not doing so. In Dellbrook Homes [1988] OLRB Rep. Feb. 125 the Board similarly declined to hear a proceeding that had been dormant for a year. In that time span, bargaining relationships in the industry had altered, and a panel member had died. The Board found that the remedy sought by the applicant “would strike at the heart of bargaining relationships which have developed, flourished, and expanded within…” the industry. Again, the Board was required to balance the interests of parties where competing bargaining interests were at stake, and again, the Board visited the consequences on the party that could have prevented the delay from occurring. It is also worth noting that both of those cases arose in proceedings in which the Board has an express statutory discretion not to enquire further. Monte Carlo Carpentry, supra, was a request to reconsider the granting of a certificate; Dellbrook Homes, supra, was an unfair labour practices complaint. It is not at all clear to the Board that it enjoys such discretion in a “non-construction employer” proceeding.
13In any event, in this case, it is difficult to see what prejudice the Carpenters suffer by the delay. These proceedings are brought with the goal of ending the Carpenters’ bargaining rights and its ability to require A&P to continue to comply with the Carpenters Provincial ICI collective agreement. The longer this case continues, the longer the Carpenters enjoy those bargaining rights. Whatever prejudice one might find from a delay in advancing a case in other sorts of applications does not exist in this case. I decline to dismiss Board File 0098-99-R on the basis of delay.
14The application in Board File 0098-99-R will be heard having regard to the provisions of section 126 and 127 as they appeared prior to December 29, 2000. The parties were agreed that in the event I permitted both applications to continue, I would hear and decide the earlier application before considering the second.
15This matter will continue on November 27 and December 10, 2001 and on February 4 and 6, 2002 at the Board’s premises 505 University Avenue, 2nd Floor, Toronto, Ontario, commencing at 9:30 a.m.
“Mary Ellen Cummings”
for the Board