Ontario Pipe Trades Council v. Harris

Court File No.: 2020-00-U, 2028-00-U Date: 2001-05-28 Ontario Labour Relations Board

Re: 2020-00-U Ontario Pipe Trades Council, Applicant v. The Honourable Mr. Michael Harris Premier of Ontario and the Honourable Mr. Chris Stockwell, Minister of Labour, Responding Parties.

2028-00-U Ontario Sheet Metal Workers’ and Roofers’ Conference Sheet Metal Workers’ International Association, Applicant v. The Honourable Michael Harris, Premier and the Honourable Chris Stockwell, Minister of Labour, Responding Parties.

Before: R. O. MacDowell, Chair.

Appearances: Jim Fyshe for the Ontario Pipe Trades Council; Jerry Raso for the Sheet Metal Workers’ Union; Len Marvy, Paul Boniferro, Leslie McIntosh for the responding parties.

DECISION OF THE BOARD; May 28, 2001

I - Introduction: What this case is about, in general

1. This is an "unfair labour practice" proceeding filed under section 96 of the Labour Relations Act. The case involves two related applications, which for convenience will be dealt with together.

2. The complainants are trade union organizations. The responding parties are the Premier of Ontario and the Minister of Labour. There are no employers or employees named as parties to the complaint, and there is no particular collective bargaining relationship under review.

3. The complainant unions allege that the Premier and the Minister of Labour have contravened sections 70, 72, 73, or 76 of the Labour Relations Act. The relevant provisions of the Act include the following:

4. The following are the purposes of the Act:

5. To facilitate collective bargaining between employers and trade unions that are the freely‑designated representatives of the employees.

6. To recognize the importance of workplace parties adapting to change.

7. To promote flexibility, productivity and employee involvement in the workplace.

8. To encourage communication between employers and employees in the workplace.

9. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions.

10. To encourage co‑operative participation of employers and trade unions in resolving workplace issues.

11. To promote the expeditious resolution of workplace disputes.

12. (1) This Act binds agencies of the Crown other than,

(a) those that employ Crown employees as defined in the Public Service Act; and

(b) those that are designated under clause 29.1(1)(a) of the Public Service Act.

(2) Except as provided in subsection (1), this Act does not bind the Crown.

96. (1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

70. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

73. (1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

76. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

77. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

78. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

79. The unions' allegations will be explored in more detail later. At this point it suffices to say that the alleged misconduct occurred in connection with new legislation ("Bill 69") regulating collective bargaining in the construction industry. Bill 69 was introduced for first reading on April 25, 2000, was passed by the Legislature in amended form on November 27, 2000, and was proclaimed in force on December 16, 2000. Consultation in respect of this legislation occurred both before the introduction of Bill 69 and while the Bill was proceeding through the legislative process.

80. The unions complain that the dialogue surrounding Bill 69 was punctuated by "unlawful threats", and by what the unions describe as an "abuse of power".

81. The unions allege that the Premier breached the Labour Relations Act by supporting legislation that was advocated by employer supporters of the Progressive Conservative Party. That legislation would have the effect of eliminating certain "bargaining rights" that the unions had in respect of those employers (I will describe the origin of those bargaining rights later). The unions allege that the employers asked for this legislative relief, and that the Premier breached the Labour Relations Act by responding positively to their request.

82. This modification of existing bargaining rights also figures in the unions' complaint against the Minister of Labour.

83. According to the union complainants, the Minister breached the Labour Relations Act when he told certain unions that if they did not use a mechanism put into Bill 69 to facilitate the termination of the disputed bargaining rights, then the government would bring in other legislation in order to achieve that result - legislation which might have broader and more undesirable consequences from the unions' point of view. The unions say that this was an "unlawful threat": improper pressure to abandon their bargaining rights or face legislative consequences.

84. The unions seek by way of remedy: a "declaration" that the responding parties have acted unlawfully; a "cease and desist direction" prohibiting any further contraventions of the Act; and certain "publication orders", advertising the finding of illegality in newspapers throughout the province. There is no remedy sought in respect of any employer-employee relationship. Nor is any remedy sought (or available) in respect of the terms of Bill 69 itself, which has now been passed and proclaimed. And as we shall see later: the "other legislation" that was allegedly "threatened" did not materialize.

85. So at this point, the relief sought by the complainants is primarily declaratory.

86. That is what the unfair labour practice complaint is about. However, the case has an interesting twist, because the unions claim that none of the Board's adjudicators are actually capable of hearing the matter, because of a "reasonable apprehension of bias", that applies to all of them. The unions seek an acknowledgement from the Board to this effect.

87. No actual bias is alleged. However, the unions claim that the nature of the complaint and the identity of the responding parties raise a "reasonable apprehension of bias", because the Board's adjudicators do not enjoy sufficient independence from the government to be seen as "impartial" in a case such as this one. The unions assert that because of this "reasonable apprehension of bias", it would be a "denial of natural justice" for any Board adjudicator to deal with their complaint.

88. In other words, the unions say that there have been various breaches of the Labour Relations Act, over which the Board would normally have exclusive jurisdiction, but that in the particular circumstances of this case, the Board is not capable of dealing with the complaint. Accordingly, in File Number 2020-00-U the Pipe Trades Council seeks

"An order requiring this application to be heard by an adjudicator not appointed by the Ontario Government and who will appear to be impartial in deliberating upon the complaint."

In File Number 2028-00-U, the Sheet Metal Workers support that position - although neither union indicates how, or where, the Board would get such jurisdiction.

14. The unions insist that a hearing is necessary in order to deal with their complaint, which, they say, involves "subtle questions of fact, law, and labour relations policy, that require a hearing"; moreover, the material indicates that a number of witnesses might have to be heard from (perhaps including the Premier and the Minister of Labour), in order to determine whether the "facts" are as the unions claim them to be. However, the unions say that this enquiry cannot be conducted by the Labour Relations Board - the tribunal which, under the Labour Relations Act, has been given exclusive jurisdiction to determine questions of "fact and law and labour relations policy" (see sections 114 and 116 above).

15. This proceeding therefore presents a rather novel situation: the unions are asserting that the tribunal with which they have filed their complaint, does not actually have jurisdiction to deal with it.

16. The responding parties deny that there has been any breach of the Labour Relations Act, and maintain that the unions' pleadings do not even make out a prima facie case of illegality. In the respondents' submission, even if all of the unions' allegations are taken to be true (which the respondents deny), there would still be no breach of the statute.

17. In the respondents' submission, the behaviour identified by the applicants does not fall within the ambit of the Labour Relations Act, which, counsel asserts, has no application to these individuals, or in this situation. Even assuming that the legislation applies to the Crown (which the respondents deny), politicians cannot be found in breach of the Labour Relations Act because they have exercised their power to legislate, or have indicated an intention to do so. Nor is the Minister acting illegally when he engages in a dialogue with stakeholders in respect of legislation, or when he spells out the legislative alternatives. This is a realm of conduct to which the statute simply does not apply. And to the extent that the complainants rely upon speeches in the Legislature or Legislative Committees (as they do to a considerable extent), "parliamentary privilege" applies as well. See: sections 37 and 53 of the Legislative Assembly Act, and the decision in New Brunswick Broadcasting Co. v. Nova Scotia (1993), 1993 CanLII 153 (SCC), 100 D.L.R. (4th) 212.

18. On the apprehension of bias/natural justice point, the respondents assert that the Board is perfectly capable of dealing with this matter, just as it deals with numerous other matters where the Crown is properly a party - including the Crown in its capacity as employer. There is nothing novel about the Crown being a party before the Board (albeit not under the Labour Relations Act); and in the respondents' submission there is no plausible apprehension of bias, and thus no potential denial of natural justice.

19. The respondents maintain that this proceeding is a transparently "political" exercise in which the applicants are attempting to harass Ministers of the Crown, by frivolous litigation. It is an attempt to score "political points" in the guise of a legal proceeding, and, incidentally, to turn the Board into a political forum. The respondents assert that the complainant unions, unhappy with recent legislation, have launched vexatious legal proceedings in an effort to publicize their political grievances. Their case is about “politics” not “law”.

20. In the respondents' submission, this proceeding is an abuse of the Board's processes, which should be summarily dismissed.

21. In summary, then, for rather different reasons: all of the parties are urging the Board not to enquire into this complaint.

22. I have already set out the relevant provisions of the Labour Relations Act. However, for completeness, I might also mention section 16 of the Public Officers Act:

Where by any general or special Act any person or the occupant for the time being of any office is empowered to do or perform any act, matter or thing and such person or the occupant for the time being of such office is disqualified by interest from acting and no other person is by law empowered to do or perform such act, matter or thing, then he or she or any interested person may apply, upon summary motion, to a judge of the Ontario Court (General Division), who may appoint some disinterested person to do or perform the act, matter or think in question.

23. The Public Officers Act provides a mechanism for adjudicating issues where the individual charged with that responsibility is unable to act, and there is no alternative forum (see: Re Service Employees International Union, Local 204 and Johnson et. al. (1997), 1997 CanLII 12280 (ON CTGD), 35 O.R. (3d) 345). The significance of that legislation will become apparent later. However, as will be seen: the statute provides a process for determining the “disqualification issue” which the unions have put before the Board, as well as a forum with specific jurisdiction to grant the remedy they seek.

24. The provisions of Bill 69 are not directly relevant to the disposition of the unions’ complaint. That depends upon the application of the unfair labour practice provisions of the statute to the circumstances under review (assuming that the statute applies at all). However, in order to understand what the unions are complaining about, it may be helpful to say something about both the legislative framework governing the construction industry, and the way in which that framework was being changed by Bill 69.

25. This portion of the decision may seem tedious and technical. However, without some understanding of the legislative context and the recent policy debates, it is difficult to make sense of the pleadings - or the voluminous material filed in support of the unions' complaint (legislative debates, political statements, policy positions, letters to and from the Minister, newspaper clippings, and so on). Nor can one really appreciate the nature of the dialogue in which the Minister became involved - or what he was actually doing, which the unions find objectionable. For as will be seen later: this complaint is mostly about the process of "law making" - the process by which the government, through its Ministers, identifies problems, balances interests, and makes the policy choices that ultimately wind up in legislation.

26. The unions' complaint focuses on particular behaviour, said to be unlawful. However, I think that it is important to situate that behaviour in the broader context of legislative change, and the process by which such changes come about.

27. This general background is not really in dispute and is well known to any observer of the construction labour relations scene - although the complainant unions obviously do not agree that there was any "problem" warranting further legislative change, nor do they support the particular changes made by Bill 69. The complainants are among those unions that oppose Bill 69.

II - Some background on the regulation of collective bargaining in the construction industry

28. It is not disputed that the labour relations environment in the construction industry is very different from what one would find in the manufacturing sector. It is a setting which poses real challenges for the institutional parties, and for public policy as well. Thus, almost 30 years ago, Professor H.D. Woods observed:

There are special problems in union management relations in the construction industry. This is so because of the nature of the industry itself, which has produced a somewhat unique employer-employee relationship, and has contributed to the evolution of an unusual industrial relations system in construction. The resulting problem for public policy is complex and baffling, and has not yet been resolved to the satisfaction of the parties of interest or the public. However, in recent years there has been much activity in a number of jurisdictions directed to reshaping public policy in labour management relations as it applies to construction. There has been a growing awareness of the inadequacies of general labour relations policies when applied to this industry, and a realization that special legislation appears to be necessary.

(See: H.D. Woods, Labour Policy in Canada Macmillan Toronto 1973 at Chapter 7; and see generally: J.B. Rose, Public Policy, Bargaining Structure and the Construction Industry, Toronto Butterworths, 1980.)

29. This is not the place to examine the unique labour relations environment of the construction industry. It suffices to say that over the last few years, there has been a considerable volume of special legislation designed to address its problems, and provide a framework for growth and labour relations stability. Bill 69 is only the most recent example - further refining a province-wide bargaining scheme that was first introduced in 1978.

Where it all started: the 1978 amendments

30. The 1978 amendments provided for mandatory province-wide bargaining, by trade, through provincial employer and employee bargaining agencies ("EBAs"), designated by the Minister of Labour. The designated employee and employer bargaining agencies are umbrella organizations representing local unions and employers for collective bargaining purposes. Collective bargaining takes place, by trade, (i.e. carpenters’ union and carpentry contractors, electricians' union and electrical contractors, etc.) every three years with a view to concluding a provincial collective agreement. The provincial agreement applies to all unionized employers and employees within that trade, working in the ICI sector of the construction industry, anywhere in the province.

31. Under the provincial bargaining scheme, the bargaining process and the collective agreement are provincial in scope. Local bargaining and local arrangements are specifically prohibited. Regional and local variations may be recognized in provincial bargaining, and may be made part of the provincial collective agreement. However, there is no guarantee of that.

32. The original provincial bargaining scheme introduced in 1978 was "about provincial bargaining". The legislation did not change the pattern of bargaining rights held by local unions in one or more geographic areas throughout the province. Nor was the scheme "fully provincial", at all levels. The bargaining was conducted by the EBAs on a province-wide basis; but under the original 1978 legislation, the resulting collective agreement only applied, checkerboard fashion, in those geographic areas where a trade union had already acquired local bargaining rights by certification or voluntary recognition. The bargaining process was provincial, but the application of the collective agreement was not.

33. This aspect of the 1978 scheme created its own problems, which were studied by George Adams, then Chair of the Labour Relations Board. Mr. Adams' analysis and recommendations led to amendments in 1980, which prevail, with some modifications, today. It is those 1980 amendments - and their impact on bargaining rights - that are relevant to some of the issues in the instant case.

The amendments in 1980 - bargaining rights are extended province-wide

34. In 1980, bargaining rights were extended, by statute, province-wide, so that if a trade union had bargaining rights for an employer in any geographic area in the province, the union became the bargaining agent for all of the employees of that employer anywhere in the province. There was no obligation on the trade union to demonstrate a showing of support among any employees swept in to the province-wide scheme. Nor was there any application to the Board or elsewhere. The change was effected by legislative fiat: any union that had any ICI bargaining rights anywhere in the province, simply had those bargaining rights extended, by statute, so as to cover the whole province.

35. This was not really a "gift" of additional bargaining rights to trade unions - although some employers may have looked at it that way. Rather, it was a recognition that the economic market for many (but not all) construction employers in the ICI sector, was no longer confined to local areas, together with the belief that true province-wide bargaining would not work very well unless ICI bargaining rights and the provincial bargaining process were congruent. The Legislature decided in 1980 that geographic fragmentation made no sense: the system should be truly provincial at all levels.

36. As a result of the 1980 amendments, union bargaining rights were extended and the checkerboard was eliminated. At the same time, unions were obliged to organize workers on a provincial basis (see section 158 of the Act). In the result, by 1981, there was true province-wide bargaining, by trade, with contiguous province-wide bargaining rights in the ICI sector of the construction industry. In other sectors ("residential" for example), the situation remained much as it had been before - local and fragmented.

37. The introduction of provincial bargaining in 1978, and the amendments in 1980 were intended to improve the process of collective bargaining for ICI construction. It was a systemic answer to what were seen to be systemic problems. However, the statutory extension of bargaining rights in 1980, had a significant commercial impact on certain Toronto-based construction companies -- which have complained about it ever since. And since their concerns were ultimately addressed by Bill 69, it may be helpful to explain the origin of the alleged "problem" (from the employers' point of view - I repeat, the unions do not regard this as a "problem" at all).

The effect of the statutory changes on Toronto contractors: the new legislation as interpreted by the Board

38. In the 1960s and 1970s (i.e. prior to the introduction of provincial bargaining) a number of Toronto-based contractors had entered into what were described as "working agreements" with the local Building Trades Council - an umbrella body representing a collection of local unions. The legal character of these arrangements would later become the subject of much controversy. However, initially, they were merely an agreement to use union labour and apply union rates on local construction projects.

39. Like much else in the construction industry at that time, no one worried too much about whether the "working agreement" created some form of "legally binding" obligation, or alternatively, was merely a "gentlemen's agreement" to which the signatory parties were expected to adhere. From the parties' perspective, the "legality" of the arrangement did not matter. It was enough that it made sense, and contributed to labour relations stability.

40. Since construction trade unions were well organized in the Toronto area, and were an essential source of skilled labour, many Toronto contractors found it advantageous to sign the "working agreement" and adhere to its provisions. It was a sensible local arrangement. It also served to increase union density, so that most projects in Toronto were "done union" (i.e. involved unionized subcontractors, employing union members, working at collectively bargained rates).

41. However, with the introduction of more legal regulation in the construction industry, questions later arose about the actual legal status of the "working agreement" - and in particular, whether the "working agreement" could be considered a "collective agreement" or "voluntary recognition" agreement that created bargaining rights for various unions, through their affiliation with the Building Trades Council. There was also a debate about how many trade unions were actually bound by the "working agreement" through that affiliation: whether it was confined to the so-called "civil trades" or had broader application to other trade unions as well.

42. With the extension of collective bargaining province-wide in 1980, these questions assumed considerable importance, because if the "working agreement" created bargaining rights for a particular trade union in the Toronto area, those bargaining rights would automatically be extended, by statute, province-wide. A company that had signed the "working agreement" at some point, expecting it to apply only in Toronto, might find itself "unionized" province-wide, and bound by one or more provincial collective agreements. Accordingly, it became very important to know what the "working agreement" really was under the amended statutory scheme, as well as how many trade unions could claim whatever legal benefits flowed from the "working agreement".

43. These issues were the subject of litigation before the Board in a number of cases (see for example: M.J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50; Harbridge & Cross Limited, [1988] OLRB Rep. April 391; and Ellis-Don Limited, [1992] OLRB Rep. Feb. 147). I need not dwell on the details here. It suffices to say that in a series of decisions involving different parties, the Board concluded that under the new statutory scheme, the "working agreement" did provide a foundation for local bargaining rights - which were then automatically extended, by statute, province-wide. The Board also found that, through the auspices of the local Building Trades Council, the "working agreement" applied to more trade unions than the employers had asserted or believed to be the case.

44. These arguments, which prevailed post-1978, probably could not have been made under the earlier statutory provisions. Indeed, the extension of bargaining rights with the "working agreement" as a base, may have been an entirely unanticipated consequence of the particular legislative language used in 1978 and 1980. (I make no finding about that one way or the other.) But, from the employers' point of view, that provided cold comfort, given what they believed to be an adverse commercial impact on their businesses. Whether intended or not, and whether "a good thing" or not, the new legislation, as interpreted by the Board, affected the way that Toronto contractors could operate outside Toronto.

45. Not surprisingly, the affected contractors were not pleased to find that what they thought was a loose and local arrangement with some trade unions in the Toronto area, had resulted, years later, in their being plugged in to a series of provincial collective agreements that applied anywhere in Ontario where they sought to do business. General contractors were particularly concerned, because those provincial agreements typically limited the extent to which they could engage "non-union" subcontractors in any project for which the general contractors had responsibility. These jobs now had to be "union, wall to wall" anywhere in the province; and while that may not have been a burden in the heavily unionized environment of the Greater Toronto Area (where most of the work was "done union" anyway), the general contractors regarded it is as a significant limitation on their ability to do business outside Toronto, where there was serious non-union competition.

46. The general contractors claimed that, outside Toronto, it was much harder for them to bid a project if all of the subcontractors had to be unionized and bound by the provincial ICI agreements - unless those ICI agreements recognized local labour markets, provided for local wages and benefits closer to those of non-union competitors, and did not impose institutional limitations on the selection or mobility of labour. And as noted above: that outcome was by no means guaranteed. So these contractors wanted relief from what they believed to be an unwarranted extension of bargaining rights, that limited their ability to meet non-union competition.

Some other complaints about provincial bargaining

47. Nor were the Toronto contractors the only ones with concerns about the ramifications of province-wide bargaining. There were also objections from local unions and local employer groupings who decried the loss of local autonomy, or worried that provincial bargaining structures would not be sensitive to local needs. These parties (on both sides of the bargaining table) were uncomfortable about a system which gave predominant weight to the bigger, often Toronto-based organizations. Provincial collective bargaining meant a shift of power "to the center". (There is a flavour of that concern in the opening portions of the complainants' pleadings.)

48. In summary, then, while province-wide bargaining had many supporters, there were also vocal critics, who advocated changes to increase business flexibility and moderate what they saw as competitive disadvantages.

49. Let me be clear: I make no comment upon the "merits" of any of these complaints, save to note that unions had their own opinions, as well as some complaints of their own. It suffices to say that the current government was not averse to considering legislative changes, consistent with its own political agenda. However, government spokespersons (including the former Minister of Labour) indicated that they would prefer an "industry solution" to any perceived “problems” - by which was meant a consensus resolution arrived at by the parties themselves, either within the current legislative framework, or with the assistance of statutory change, to ratify what the parties themselves had agreed upon. If there were "problems" with provincial bargaining, the government encouraged the bargaining parties to try to solve those problems themselves.

50. That was the approach that had been used before - for example in 1978, when the Minister was exercising her authority to designate provincial employer and employee bargaining agencies. Under the statute the Minister's discretion seems completely unfettered. In practice, though, the "reforms" in 1978 involved a significant component of "voluntarism", with the legislation providing a legal envelope for arrangements that the parties had (mostly) already agreed upon.

The "related employer" issue

51. However, province-wide bargaining was not the only subject of debate in the construction industry, nor the only portion of the Labour Relations Act that some observers thought was in need of "reform". Among the critics of existing labour law, were employers who advocated a repeal of the "related employer" provisions of the Labour Relations Act (section 1(4)), so that they could "double breast" - which is to say, so that they could operate parallel but separately incorporated union and non-union businesses, which could then be used interchangeably depending upon local market conditions. In W.W. Lester (1978) Ltd. v. UA Local 740 (1990), 1990 CanLII 22 (SCC), 76 D.L.R. (4th) 389, the Supreme Court of Canada described the effect of related employer provisions this way:

As noted earlier, related employer provisions presently exist in the federal, British Columbia, Alberta, Manitoba, Nova Scotia, Ontario and Saskatchewan Labour Acts. Such provisions allow [labour] boards to address double breasting (where appropriate to do so) by giving the board the ability to declare that two employers are common employers, and to treat them as one employer for the purpose of the Act. This permits the Board to impose the collective agreement of a union company on the non-union company and thus to control the practice of double breasting.

The Board has also discussed the purpose of the related employer provisions in cases such as Industrial Mine Installations Ltd., [1972] OLRB Rep. Dec. 1029, and Brant Erecting and Hoisting, [1980] OLRB Rep July 945, Oct. 1353. In Brant Erecting, the Board observed:

Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by, or through, more than one legal entity. Where such legal entities carried on related business activities under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of the trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicles through which that activity is carried on. Legal form is not permitted to dictate or fragment collective bargaining structures; nor will alterations in a legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of [the successor rights provisions - now section 69] which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another. Section 69 has been part of the scheme of the Act since the made 1960s. Neither remedial provision requires a finding of anti-union animus; their primary application is to bona fide a business transactions which incidentally undermine or frustrate established statutory rights.

52. Section 1(4) of the Act represents a modification of commercial law concepts in order to meet the needs of labour law; so, for employers seeking to maximize corporate flexibility, the repeal of section 1(4) had obvious attractions. Small businesses, in particular, might welcome the repeal of section 1(4) so that business can be transferred freely from one family member to another without bargaining rights following along behind (a number of the Board's cases, over the years, have dealt with that scenario). However, for present purposes it is important to realize that the repeal of section 1(4) might also provide a "way out" for the unhappy Toronto contractors, since they too might be able to incorporate a non-union company to bid jobs outside Toronto, and thus escape the strictures of the provincial collective agreement.

53. In other words, reversing the "statutory extension" or overruling the Board's "working agreement decisions" were not the only ways to meet the Toronto contractors' complaint (assuming that the government was so inclined). A repeal of section 1(4) might do the job as well. Accordingly, there were several employer constituencies that might support this particular legislative change.

54. Of course, trade unions firmly resisted any modification to the statutory provisions which prevent an employer from avoiding its bargaining obligations by the simple expedient of incorporating a new company. Nevertheless, in light of the community debate about this issue, the Minister of Labour appointed a commission to study "the origin, purposes and application of section 1(4), with particular reference to its impact on the construction industry". That study was conducted by T.E. Armstrong, Q.C., a former Chair of the Board, and was submitted to the Minister in December 1999. (The report is found at Tab 6 of the documents filed in the Sheet Metal Workers complaint, File Number 2028-00-U.)

55. The point is: whatever lobbying may have been done, and whatever "problems" there may have been in one corner of the industry or another, and whatever the government's sympathies, or inclinations or preference for an "industry solution": changes to section 1(4) were very clearly "on the table" as an option for consideration. There was an active employer lobby in favour of repealing section 1(4), and an active union lobby arguing against it. It was an issue that was going to be addressed, one way or another - if only to decide, in the end, to leave things as they were. And the complaints of the Toronto-based contractors were also part of that debate, and something that the government might choose to address, one way or another.

The continuing debate about legislative change in the construction industry

56. It is also important to recognize that for the last decade, there has been an ongoing debate both with, and within, government about the general direction of labour law "reform", and the appropriate legislative framework for collective bargaining. Indeed, I think it is fair to say that, in the last 10 years, there has been an unprecedented volume of legislative change, as different Legislatures devised different responses to the "problems" as they saw them, or struck different points of balance between competing commercial and institutional interests. There have been many amendments to the Labour Relations Act in recent years, and many more proposed or talked about by one party or another (although, of course, this is a debate in which the Board is necessarily only an informed bystander).

57. The construction industry has not been ignored in this process. On the contrary, over the last couple of years, the government has turned its attention to the role of collective bargaining in the construction industry, and has engaged various stakeholders about their concerns. The government has also articulated broad goals that include the construction industry: improving competitiveness, promoting stability, and encouraging economic growth and job creation, and so on. Indeed, these goals appear expressly in the title to "Bill 31", which was passed in 1998, and includes an earlier round of amendments to the construction industry provisions.

58. In some respects, therefore, Bill 69 continues a process which began two years before.

Recent changes to the provincial bargaining scheme - the first steps: Bill 31

59. Bill 31 exempted from provincial bargaining employers that were engaged in the construction industry only in a manner that was incidental to their primary businesses (banks, industrial enterprises, school boards, municipalities and the like). (See sections 126 and 127.1 of the Act as it was in June 1998, and the revised definition of "non-construction employer" introduced by Bill 69.) In addition, Bill 31 provided a formula (now section 163.1 of the Act) by which economically significant projects could proceed under terms and conditions of employment different from those found in the provincial ICI agreement. If the proper procedures are followed, the project agreement prevails, and the provincial agreement does not apply to the local project.

60. The provisions respecting "project agreements" provide for a legislatively supported, local variation of provincially bargained ICI agreements, in order (so the statute says) to facilitate and encourage such projects, and thus promote jobs and growth. The provision respecting "non construction employers" refines the range of "players" to whom provincial collective bargaining applies. In both cases there is a limitation on the scope or reach of provincial bargaining.

Further changes to provincial bargaining: Bill 69

61. Bill 69, proclaimed in December 2000, introduces further changes to the provincial bargaining scheme. It permits further local departures from the ICI agreement, and makes regulatory changes in some other areas as well.

62. The main features of Bill 69 can be described quite briefly.

63. Bill 69 modifies the process of residential collective bargaining in the Greater Toronto Area, and imposes limits on the right to strike, so that there cannot be a repeat of the series of sequential strikes that tied up home building in the GTA a couple of years ago. Bill 69 also makes changes to section 1(4) of the Act, as it applies in the construction industry - adding some additional factors for the Board to consider, and prohibiting the Board from looking at other things (see section 126(3)).

64. However, it is important to note here that Bill 69, as passed, does not remove section 1(4) from the Act altogether. Although there were employer advocates for outright repeal, and repeal was certainly an option, that is not what the Legislature ultimately did.

65. Insofar as province-wide bargaining is concerned, Bill 69 adds a mechanism by which the employer EBA or a local grouping of unionized contractors may seek local modifications to the provincial agreement, if they can establish that they would be at a "competitive disadvantage" if obliged to apply those terms. As with "project agreements", these amendments provide a mechanism for local variation. (See new section 163.2.) Bill 69 also introduces new provisions which facilitate the movement of the unionized workers from one region to another without regard to local union rules, together with provisions that relieve employers of some of their obligation to hire only through the local union hiring hall (i.e. accept only those workers whom the local union chooses to dispatch - see new section 163.5).

66. The expressed intention of these amendments is to improve the "competitiveness" of unionized employers, by modifying the impact of provincial collective bargaining, and overcoming some of the "institutional frictions" facing them in the marketplace. Once again, for present purposes, the details of these changes do not matter. What does matter (and is evident from the material filed with the Board) is that the legislative outcome followed upon quite a bit of "communication" between the government and so-called "stakeholders" in the community, about what the government wanted to achieve, and how it might achieve it. (See for example Tab 7 of the Sheet Metal Workers' materials which details some earlier proposals for change.)

67. That is the general background for the continuing dialogue with the Minister, while Bill 69 was before the House - a dialogue to which the unions object insofar as it centred upon the provisions intended to effect a termination of certain bargaining rights affecting Toronto contractors (i.e. the bargaining rights that were "extended" in the manner described above).

How Bill 69 deals with the complaint of the Toronto contractors

68. As I have already noted: Bill 69 does not repeal section 1(4). However, Bill 69 does address the complaints of the (largely Toronto-based) general contractors who were unwillingly swept into provincial bargaining some years ago, by a combination of the legislated extension of bargaining rights in 1980, and Labour Relations Board decisions on the meaning of the "working agreement". But the legislative formula to eliminate those bargaining rights evolved, as Bill 69 passed through the legislative process, from first reading to final passage.

69. In the first reading [April 25, 2000] version of Bill 69, one finds a scheme by which the EBA (the designated provincial bargaining authority) can "abandon bargaining rights" on behalf of the local unions ("affiliated bargaining agents") that hold them. (See the first reading version of what is now section 160.1 of the Act.) Presumably, the EBA would be encouraged to do that, in order to meet the competitiveness concerns of various employers.

70. By the second reading [May 10, 2000] of Bill 69, this role for the EBA has been eliminated, and in its place has been substituted a formula whereby those bargaining rights can be eliminated by a decision of a majority of the local unions holding such bargaining rights. It is a group decision, vaguely reminiscent of the provisions governing project agreements. (See the second reading version of section 160.1 of the Act.)

71. Both of these formulas contemplate some degree of agreement on the part of union organizations to abandon bargaining rights. Without union acquiescence, nothing changes. However, by the third reading of Bill 69 [November 28, 2000], the need for union consent is eliminated. The final version of section 160.1 reads this way:

5.  (1) The Act is amended by adding the following section:

Deemed abandonment of bargaining rights

160.1 (1) The Lieutenant Governor in Council may, by regulation, deem bargaining rights held by an employee bargaining agency and its affiliated bargaining agents to be abandoned with respect to an employer or a class of employers.

Scope of regulation

(2) A regulation made under subsection (1) may apply with respect to all of Ontario or any part or parts of it.

Effect of regulation

(3) On the day a regulation made under this section comes into force,

(a) the affiliated bargaining agents of the employee bargaining agency referred to in the regulation cease to represent the employees of the employer employed in the industrial, commercial and institutional sector of the construction industry in the area to which the regulation applies;

(b) the bargaining rights vested in the employee bargaining agency under section 156 shall not be exercised for any purpose relating to the employer or class of employers referred to in the regulation in the area to which the regulation applies; and

(c) any provincial agreement to which the employee bargaining agency is a party that bound the employer or employers in the class of employers referred to in the regulation ceases to bind them in the area to which the regulation applies.

Abandonment of rights by other means not precluded

(4) This section shall not be interpreted to preclude the abandonment of bargaining rights by other means.

(2) Section 160.1 of the Act, as enacted by subsection (1), is repealed on the day that is one year after the day this section comes into force.

72. In the final version of Bill 69, the element of "voluntarism" has been completely omitted. The affected unions and employers are not expected, or required, to do anything. It is left to the Lieutenant Governor in Council to pass a regulation terminating specific bargaining rights; and upon the promulgation of such regulation, the bargaining rights described in the regulation are deemed to be abandoned.

73. It is not disputed that this provision, in its various incarnations, was intended to relieve certain Toronto contractors of the effects of the "bargaining rights extension" described above. Nor is it disputed that the proposed section 160.1 changed when it became clear through discussions with the affected unions that they would not "voluntarily" walk away from these bargaining rights. That was the expectation underpinning the earlier drafts of section 160.1; and when that understanding evaporated, the wording of the section was changed.

74. It is those discussions which, the unions allege, were punctuated by "unlawful threats" by the Minister of Labour. Nevertheless, I think that it is important to remember (as I have tried to illustrate above) that Bill 69 is not just "about" reducing the bargaining obligations of a few Toronto-based contractors, nor even "about" modifying section 1(4) of the Act. There is much more to Bill 69 than that. The Bill represents what might be described as a "rebalancing" of the provincial collective bargaining scheme in a number of ways.

75. Having sketched in the context, let me now return to the unions' allegations in a little more detail.

76. For while the setting is somewhat complicated, the allegations themselves are not.

III - The unions' allegations in a little more detail

77. The unions make allegations against both the Premier of Ontario and the current Minister of Labour. It will be convenient to look at those allegations separately - recognizing that some of them are denied, while others are said to be incomplete or a mischaracterization of what happened.

78. In approaching the complainants' pleadings, I have tried to distinguish between those submissions that merely complain about the provisions of Bill 69, and those submissions that allege concrete behaviour by the named respondents, that is said to be a violation of the Labour Relations Act. It is only the latter which might be the basis for a legal complaint against the respondents.

79. The complaint against the Premier is really quite simple.

80. The unions claim that certain Toronto based contractors made financial contributions to the Progressive Conservative Party of Ontario, and, in return, the Premier allegedly "promised" to restrict the bargaining rights that were rooted in the "working agreement", and were extended in the 1980s. The unions say that the Bill 69 provisions reversing this result (section 160.1) represent the "delivery" on that promise. They track the evolution of section 160.1 as it made its way through the Legislature, and assert that, throughout, the intention was to eliminate bargaining rights at the behest of a small group of Toronto-based companies.

81. However, apart from this alleged "promise", there is no specific unlawful behaviour attributed to the Premier in his personal capacity. Unlike the allegations against the Minister of Labour, it is not said that the Premier said or did anything in respect of the provisions of Bill 69 - other than to perform his role as Premier and head of Cabinet, to guide the legislation through the Legislature. In particular, there is no suggestion that the Premier engaged in some process of "bargaining" with stakeholders, or that he had any personal role in crafting or promoting legislative compromises.

82. It should also be noted that whatever might have been said in the political arena, and whatever "promises" might have been made in the context of an election campaign, it is the Legislature as a whole - not the Premier personally - that ultimately passes legislation. The Premier cannot do that on his own. Accordingly, even if one accepts that the Premier made a "promise" to some constituency, it is a "promise" that he could not keep without ratification by the Legislature.

83. I think it is fair to say that if the Premier and the Cabinet did not support legislative changes, they would not have gone forward. However, the passage of legislation - let alone a particular item in the package - cannot be attributed to the Premier alone. Nor is it easy to see how his participation in the legislative process can be considered an impropriety to which the Labour Relations Act applies.

84. I will return to that point later.

85. The allegations against the Minister of Labour arise from his interaction with members of the labour relations community, while Bill 69 was making its way through the Legislature. The unions focus, in particular, on the evolution of section 160.1, and the discussions surrounding that provision.

86. The unions acknowledge in their pleadings that over the last couple of years there have been extensive discussions between unions and contractors about how the provincial bargaining scheme might be improved, and how unionized contractors might be made "more competitive" when bidding for work against non-union competition. It is not disputed that these discussions touched on the complaints of the Toronto-based general contractors (whether or not there was any merit in those complaints). The discussions also touched on section 1(4). And no one seems to quarrel with the former Labour Minister's preference for an "industry solution" - or with the notion that the Minister can, and perhaps should, encourage dialogue between the labour relations parties, to see if they can compose their differences.

87. Furthermore, no one contends that it was inappropriate for the Minister to consult with stakeholders about pending legislation. Indeed, as anyone familiar with the legislative process will know, stakeholders typically complain that there is not enough consultation, or that they are not given enough information about the government's intentions, or that there is not enough time to respond, or that they do not have sufficient access to the Minister himself - as opposed to his officials.

88. None of those complaints can be raised in the instant case. Here the Minister was actively involved in the process of legislative change, and actively engaged employers and trade unions about the objectives, direction and mechanics of such changes. That is evident from the complainants’ materials, which for present purposes will be taken to be accurate.

89. However, as a Minister of the Crown and member of the government, the Minister of Labour was also responsible for crafting legislation that would protect and promote the public interest, as the government sees it. Ultimately, it was the government's responsibility to weigh these public and private concerns, and reach its own conclusion on the appropriate balance of interests.

90. The main thrust of the complaint against the Minister is the way that he dealt with section 160.1 of the Act - and with his response to the comments of some unions about the efficacy of that section.

91. As I have already explained: section 160.1 went through a metamorphosis while Bill 69 was proceeding through the legislative process. Early versions of the Bill contemplated an "abandonment of bargaining rights" initiated either by the EBA or by a majority grouping of affected trade unions; and one version of Bill 69 contemplated giving effect to an abandonment that was to be signified in writing, prior to the passage of the legislation itself. By contrast, the final version of section 160.1 permits the termination of bargaining rights by regulation, and does not require union agreement at all.

92. However, it has to be kept in mind that there were also other straws in the wind at the time that section 160.1 was being considered - one of which was the outright repeal of section 1(4). That, too, would have provided an avenue for the Toronto contractors to avoid bargaining rights outside Toronto. The two provisions did not go "hand in hand". But in some sense they were alternatives. (Certainly some unions thought so - as is evident from the material included with the complainants' pleadings.)

93. The complainants say that they were "threatened" by the Minister: they were told that if they did not abandon bargaining rights in the manner contemplated (and facilitated) by new section 160.1 (the first or second reading version), then they would face the prospect of the repeal of section 1(4). Conversely, if the conditions contemplated by section 160.1 were met prior to proclamation of Bill 69 (i.e. if the intended effect of section 160.1 were in fact assured), then there would be no repeal of section 1(4).

94. The unions say that in the shadow of this "threat", the Provincial Building Trades Council lobbied its construction union members to sign agreements abandoning bargaining rights for eight general contractors, insofar as those rights applied outside the Greater Toronto Area (i.e. to do what section 160.1 provided for, thereby reversing what had happened by legislation and Board decision some years ago). When those lobbying efforts foundered, the unions say that the Minister "threatened" to withdraw Bill 69, and bring in something else, which would include repeal of section 1(4).

95. According to the complainant unions, the Minister indicated that the situation of the Toronto contractors would have to be addressed, one way or the other, and if there was no "industry solution" involving "voluntary" action on the unions' part, there would be a legislative solution, because the government was committed to change things. Bill 69 was regarded as a "brokered deal", to which unions were expected to subscribe.

96. The parties disagree on the "forcefulness" of the Minister's comments - that is, whether the repeal of the related employer provision was a certainty, or a probability, or merely an "option"; moreover, once again it is obvious (as with the Premier) that the Minister, by himself, could not deliver any particular statutory outcome. The Minister could not repeal section 1(4). Only the Legislature as a whole could do that.

97. Accordingly, if this can properly be described as a "threat" attributed to the Minister, it is not the kind of "threat" that the Minister was able to carry out on his own. At most, he could urge his caucus colleagues to choose one path rather than another (as they did: the unions did not abandon their bargaining rights, section 1(4) was not repealed, and the termination of bargaining rights was effected in an entirely different way).

98. However, the unions' contention is that the spectre of the repeal of section 1(4) was held out as an inducement to persuade the affected unions to abandon bargaining rights in the manner contemplated (and facilitated) by section 160.1 of Bill 69. Similarly, the unions say that they were expected to endorse the other provisions of Bill 69. If its terms were rejected or did not work, less consensual measures would follow. According to the complainants: trade unions were being pressured to "voluntarily surrender" their legal rights in respect of a number of Toronto contractors.

99. It does not seem to be disputed that (perhaps subject to constitutional limitations) a sovereign Legislature is entitled to repeal section 1(4) or any other provision of the statute, and can extend, modify, or eliminate bargaining rights by statutory means - just as it did to the unions' benefit in 1980. The unions do not argue that the Legislature cannot change the law. What the unions do argue is that the Minister cannot "threaten" legislative change in an effort to induce them to exercise their existing rights in a particular way - even if that exercise is contemplated by pending legislation.

100. According to the complainants, the Minister cannot say, in effect, "look, you had better make this work, and use the legislative platform that we have provided for you, or we will simply legislate the desired outcome in other ways that you might find unpalatable".

101. The complainants submit that the Minister is not legally entitled to set up this "Hobson's Choice".

102. With this background then, I turn to some of the questions that the Board is asked to determine in this case.

IV – Can the Board consider this case at all? Is there a "reasonable apprehension of bias”?

105. Although the target of the unions' complaint is novel, the complaint itself is fairly narrowly framed, both in respect of the allegations made and the ultimate result should an adjudicator accept their submission that there has been a breach of the Labour Relations Act. The remedy requested is largely declaratory, and will have no significant impact on any real life labour relations situation. Or on the Board itself.

106. The "bias argument", by contrast, is much more significant, because it potentially affects all adjudicators at the Board, and any litigation involving the Crown (i.e. any litigation where a Minister or Ministry may be party, or can be said to have an interest in the outcome).

107. These are serious administrative law issues, with serious consequences (institutional and legislative) far beyond the unusual circumstances under review in the unfair labour practice complaint.

108. The unions note that all of the adjudicators on the Labour Relations Board are appointed by Order in Council ("OIC"), with remuneration fixed at the time of appointment. The term of the OIC is (typically) for three years; but beyond that, there is no security of tenure. The OIC can be, and often is, renewed (sometimes a number of times). However, there is no guarantee of reappointment.

109. The unions claim that because all Board adjudicators are appointed in this way, their continued employment, beyond each three-year term, depends upon the support of the Premier and the Minister of Labour, who, it is said, can either promote or veto any reappointment. The unions argue that the continued employment of an adjudicator therefore depends upon remaining in the good graces of the respondents - or, at least, that there is a reasonable apprehension that such would be the case.

110. The unions argue that a disinterested observer would reasonably conclude that all Board adjudicators would have a personal interest in the outcome of this particular case, because of who the respondents are, and the nature of the allegations raised; and that no Board adjudicator could be expected to approach the task impartially. While no actual bias is alleged, the unions assert that an informed outsider would reasonably be concerned about the ability of any adjudicator to decide this case fairly, without regard to extraneous considerations like the possibility of reappointment.

111. The unions further point to a draft "contract of employment" which was produced in the context of "Agency Reform", and was part of a package of initiatives recently announced by Management Board of Cabinet. The unions assert that this document forms part of the institutional environment to which reference may properly be made.

112. The document is entitled "Appointment Agreement for Regulatory and Adjudicative Agencies", and is expected to be signed by all OIC appointees. The agreement purports to bind the adjudicator to "any government policies, directives, or guidelines, set forth from time to time", and contemplates the removal of any OIC appointee on three months notice, whenever there is an "amalgamation", "abolition", "reorganization" or "restructuring" of agencies (all undefined terms), or at any time "for cause" - leaving it unclear what any of this might mean in practice. The unions note that the Hewat case, referred to below, arose in the context of "downsizing" at the Labour Relations Board, so that the prospect of OIC revocation or non-renewal is by no means hypothetical: the Board has gone through a number of organizational changes in recent years.

113. The unions contend that this proposed agreement affects the adjudicators' expectation of tenure, because it would make them much more vulnerable to removal, with only uncertain prospects of redress. Although the agreement is not in force, the unions contend that all adjudicators at the Board will be well aware of, and affected by, what is "on the horizon". In this regard, the unions assert:

"In February 2001, the Provincial Government announced plans to create a new "super tribunal" which will replace, among other bodies, the Ontario Labour Relations Board. In a subsequent appearance before a sub-section meeting of the Canadian Bar Association, Minister Stockwell did not deny that the transition from a multiplicity of boards to a single board might result in a loss of appointments by at least some existing Board members. Indeed, he made it clear that none of the present members of the affected boards can assume that they will be appointed to the new Board."

114. According to the unions, the proposed reorganization of tribunals gives job security concerns a particular resonance, which highlights both the lack of longer tenure, as well as the prospect of removal. According to the unions, the Minister has specifically said that some adjudicators "may not make it" to the new tribunal; and in the unions' submission, that is something which a reasonable observer might plausibly believe would influence existing adjudicators. The "tenure for a term" that adjudicators enjoy, is, in fact, much more fragile than might at first appear.

115. In the union's submission, the elements of "institutional independence" and "individual impartiality" are intertwined in this case, given the nature of the allegations, the identity of the respondents, and the recent institutional currents affecting the future of all tribunal members. The unions suggest that when these facts are viewed cumulatively, the situation would create, in a reasonable observer, serious misgivings as to whether any Board adjudicator would approach this case in a sufficiently disinterested way.

116. The complainants’ focus, therefore, is on the "tenure" (or lack of it) of the Board adjudicators in the particular setting in which they find themselves - given the nature of the case, the identity of the respondents, and ongoing proposals for institutional change. The complainants say that, in the circumstances, the adjudicators' statutory functions are secondary to their role as "employees" - with the normal concerns and fears that any "employee" would be expected to have about job security.

117. The foundation of this argument (and the unexamined premise), of course, is that all publicly appointed adjudicators would be, or would be thought to be, sufficiently interested in the "reward" of a future appointment, that it would interfere with a dispassionate analysis of the case. The assumption is that the preferred career path of the lawyer/adjudicators on the Board is more public appointments, upon which they are then dependent. Or to put the matter colloquially: "toeing the government line" is the best way for an appointee to advance his career as a "labour relations neutral" (if not in reality, then at least in the reasonable apprehension of the informed bystander). And in this regard the unions make no distinction between someone appointed and reappointed many times, someone whose appointment will soon expire, and someone newly appointed with much of his/her term yet to run.

118. Counsel for the respondents does not quarrel with the character of the OIC appointments, which, they point out, are specifically contemplated by section 110 of the Labour Relations Act. However, counsel notes that the OICs are for a fixed term, and cannot be arbitrarily revoked. During that term the appointee has unassailable "tenure". The three-year term means just that. In addition, there is an oath of office in which each adjudicator undertakes to perform his/her duties "faithfully, truly and impartially".

119. Counsel for the respondents also points out that there is nothing new about the Board having to deal with cases involving the Crown as a party (albeit not under the Labour Relations Act). The Ministry of Labour is an interested party in all appeals under the Occupational Health and Safety Act. Under the Employment Standards Act, the Board sits in "appeal" from the order of Ministry of Labour investigating officers, so that the Ministry of Labour appears as a party in those appeal proceedings as well (conducted as a trial de novo). Because the Occupational Health and Safety Act applies to the Crown, one or more Ministries may be a party in proceedings under that Act. The Crown, as employer, (represented by Management Board of Cabinet) can also appear as an applicant or respondent in proceedings arising under the Crown Employees Collective Bargaining Act. And so on.

120. The situation of which the unions complain - the Crown/government having an interest in the proceeding, and the Crown/government making periodic appointments of adjudicators - is far from unusual. In fact, it is quite common, and foreseeable, and, more to the point, prescribed by statute. Yet no one has ever suggested that tribunals where the Crown appears as a party are fundamentally defective, because Ministers of the Crown may influence appointments or reappointments. Nor has anyone suggested that the government cannot bind the Crown to general legislation that applies to everyone else (which is what brings the Ministries before the Board like everyone else) - or cannot reform or amalgamate tribunals for that matter.

121. With respect to the proposed "employment contract", counsel notes that it is currently only a draft document; and that no one has yet been asked to sign it. It should not be assumed that this draft will look the same when it is finalized, or that it will be applied to all tribunals in the same way, or that the specific characteristics or adjudicative functions of particular tribunals will be ignored. In this regard, counsel submits that the unions' concerns are purely speculative. The "contract" to which the unions refer does not yet exist. So the draft is not relevant.

122. The respondents stress that the assessment of "apprehension of bias" and "institutional independence" are legal determinations, applying administrative law principles developed by the Courts, not the impressions of political partisans; and that an administrative tribunal like the Board need not have the trappings or tenure of a Court. If common law principles apply at all (which the respondents do not concede), it is necessary to apply them flexibly, and in context, and having regard to the structure, functions, and community setting in which the tribunal operates.

123. That context includes a statute that says that the appointments are by the Lieutenant Governor in Council - which, counsel says, sets the appropriate standard of independence, whatever might be the case at common law. And it is legislation prescribing the duties of the Crown, which may bring the Crown before the Board as a litigant in various ways.

124. The complainants and the respondents both rely upon the same relatively recent jurisprudence emanating from the Courts at various levels; so let me turn briefly, and generally, to the current state of the law.

125. The parties appear to be in agreement that the starting point for any "bias analysis" is the classic statement found in Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (SCC), which was later adopted in Canadian Pacific Limited v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3:

"… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the adjudicator], whether consciously or unconsciously, would not decide fairly"."

126. There seems to be no dispute that this is the "test" that has been applied to questions of both "personal" and "institutional" bias. Where the parties part company, is what this test means for a tribunal like the Labour Relations Board in circumstances like those of the present case -- and in particular, whether the tribunal members have sufficient security of tenure, sufficient financial security, and sufficient institutional independence to determine an unusual case like the present one. In this regard, the Board was referred to quite a number of cases, including: Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 CanLII 145 (SCC), 122 D.L.R. (4th) 129; R. v. Valente 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; R. v. Genereaux (1992), 1992 CanLII 117 (SCC), 88 D.L.R. (4th) 110 (SCC); 2747-3174 Quebec. Inc. v. Quebec (Regie des permis d'alcool) (1996), 1996 CanLII 153 (SCC), 140 D.L.R. (4th) 577 (SCC); Katz v. Vancouver Stock Exchange (1995), 1995 CanLII 703 (BC CA), 128 D.L.R. (4th) 424 (BCCA); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623; Re Hewat et al. and the Queen in Right of Ontario (1998), 27 O.R. (3d) 16 (OCA); and most recently CUPE et al v. Ontario (Ministry of Labour) (2000), 1985 CanLII 2211 (ON HCJ), 51 O.R. (2d) 417 (OCA).

127. Viewed as a whole, what these cases suggest is that the Courts have taken a pragmatic and functional approach, weighing the institutional attributes of the tribunal under review (including its expertise), the functions that it is designed to perform, and the community that it serves. The Courts are also interested in the actual practice of the tribunal: the way that it operates, and its actual relationship and interaction with government and the regulated community. Based upon that assessment, the Courts have sometimes found a reasonable apprehension of bias, because of the institutional arrangements surrounding the tribunal or its appointees. But such findings are relatively uncommon, because the Courts recognize that tribunals are creatures of legislation with specific functions that distinguish them from Courts - even when they perform functions that are quasi-judicial and look like what a Court does (cf. the analysis in Tomko v. N. S. Labour Relations Board (1977), 1975 CanLII 183 (SCC), 1 S.C.R. 112.). Too much intervention would blunt their effectiveness, and undermine their very rationale.

128. Moreover, even if a "reasonable apprehension of bias" is identified, it does not follow that the tribunal is deprived of jurisdiction. There may still be a countervailing argument that any defect, as viewed from a common law perspective, is overridden by the statutory scheme itself, or by the "necessity" of having cases determined by the specialized tribunal that the Legislature has created and constituted to perform the task at hand (see for example, the discussion in Re Latimer and Bray (1974), 1974 CanLII 698 (ON CA), 6 O.R. (2d) 129 (OCA); Brosseau v. Alberta Securities Commission (1989), 1989 CanLII 121 (SCC), 57 D.L.R. (4th) 458; and Re E. A. Manning Limited et. al. and Ontario Securities Commission (1994), 1994 CanLII 10560 (ON CTGD), 18 O.R. (3d) 97 (Ontario Div. Ct.).

129. In other words, aside altogether from what might constitute a "reasonable apprehension of bias", there is also a body of judicial authority supporting the Legislature's right to override such common law notions of natural justice. The respondents rely upon this latter line of cases, stressing that the benchmark is the statutory scheme which, counsel argues, should be given precedence over common law norms.

130. Against this background (and having reviewed these cases and others), it is, quite frankly, very difficult to predict what content the Court will now give to the "informed bystander test" (necessarily an artificial construct), or when notions of independence, natural justice, or reasonable apprehension of bias will "trump" the particular statutory scheme prescribed by the Legislature. Nor is it clear what happens in such cases – particularly where the tribunal in question has ostensibly been given exclusive jurisdiction to decide things (applications to the Court under the Public Officers Act?).

131. That said, since the unions' concern is with a tribunal member's employment, prospects of employment, and tenure, it is worth looking briefly at how the Courts have examined some of these issues.

132. It is clear that a member of a tribunal need not be appointed for life. Fixed term appointments are permissible and quite common - provided that they really do give "tenure for a term", and are not effectively "at pleasure" (see the Regie case, supra, and the remarks of Le Dain, J. in Valente). It seems to me therefore that, prima facie, the fixed term OIC appointments enjoyed by adjudicators at the Labour Relations Board would ordinarily meet this test of "tenure". They are for a stipulated term, they are not "at pleasure", and the Ontario Court of Appeal has made it clear in Hewat, that they cannot be revoked arbitrarily or without cause.

133. Now, that situation might well be different if an adjudicator were obliged to sign some "contract" like the draft agreement referred to in the unions' complaint. It would be open to a Court to conclude that such contract totally undercuts the principle of "tenure", bringing the adjudicator's status much closer to an "appointment at pleasure" - something that might well be problematic for a tribunal like the Labour Relations Board, which is regularly obliged to adjudicate cases involving the Crown. But the fact is: the document in question is only a draft. There is no evidence that anyone - and certainly no one at the Board - has been obliged to sign an agreement in this form. So, I agree with counsel for the respondents that the document is irrelevant for present purposes.

134. I have not been able to find any authority for the proposition that the term "tenure" as used by the Courts, includes some right or expectation (let alone guarantee) of reappointment - which here would mean a new OIC from the Lieutenant Governor in Council. However, the decision in Re Sethi and Minister of Employment and Immigration et al. (1988), 1988 CanLII 9445 (FC), 50 D.L.R. (4th) 669 (Federal Trial Division), reversed at (1988), 1988 CanLII 5696 (FCA), 52 D.L.R. (4th) 681 (Federal Court of Appeal) [a pre-Matsqui case] does touch on the question of reappointments in a setting that is reminiscent of the one in this case. For there, as here, there was the spectre of tribunal restructuring, and there as here, a litigant argued that this disqualified existing tribunal members from hearing cases involving the Crown.

135. In Sethi, there was a Bill before the federal Parliament which would have abolished the Immigration Appeal Board, and mandated the discharge of its members without compensation - despite the fact that the terms of their appointments had not yet expired. At the same time, there was an expectation that at least some of the existing adjudicators would receive new appointments to the new tribunal that Parliament proposed to create. While this legislation was before the House, a litigant before the IAB raised an "apprehension of bias" argument, asserting that the current members of the tribunal could not be expected to be impartial as between the claimant and the Crown, because the Ministry of Employment and Immigration was a party in the case, and the Minister of Employment and Immigration also held the power of appointment to the new tribunal.

136. This argument found favour in the trial division of the Federal Court where Reed, J. observed:

"The present Board members have been put in a position where they have every reason to think that their immediate financial future is unsettled and in the hands of the government. That same government is opposing the applicants claim for refugee status, the question which is before the Board…The question is whether the facts are such that a reasonably well informed person would have a reasonable apprehension that the members of the Board, in the present circumstances, might be likely to try to please the government, by favoring its position over that of the person opposing the government. I think such exists".

However, the Federal Court of Appeal reached a different conclusion, because (in its view) any informed observer would be aware that the passage of legislation creating the new tribunal was uncertain, and because "the mere expression of a government's intention toward an administrative tribunal cannot …give rise to a probability that the tribunal will react to those intentions in a particular way, relative to the decisions it is required to make", and because

If the Minister opposes an application or appeal, it is because there is a genuine disagreement to be resolved by the Board, not because the Minister, or the government, has an interest personal to the individual concerned. The Board knows all that, and so does the informed right minded person. In my opinion, no informed, right minded person could conclude that members of the Board would in fact please the government if they decided that disagreement unfairly…. It follows that no informed right minded person, viewing the situation from outside, would think it more likely than not that the Board will not deal fairly with its applicants and appellants because of the government's intentions as expressed in Bill C-55… …

137. I recognize that in Sethi the Ministry was not in the same position as the Minister in this case. It was a protagonist rather than a respondent. Nevertheless, I am not aware that the result or reasoning in Sethi has been rejected. Moreover, what is significant for present purposes, is that well informed judges, looking at the law, differed quite fundamentally on how the test in Committee for Justice and Liberty should be applied - which is to say, what the "informed bystander" would be expected to know or think about how a government appointee facing dismissal, but anxious to stay on (an assumption), would likely react. Yet the content which the Courts give to this artificial construct is absolutely critical to the result.

138. Sethi illustrates the kind of uncertainty and judicial division of opinion to which I have already referred. What is clear, though, is that the Federal Court of Appeal was not prepared to say that the fact of government appointment and a presumed interest in reappointment would fuel a reasonable apprehension of bias claim - a claim which could, of course, be made in any situation where the Crown appears as party and also has a role in selecting the adjudicators.

139. On the other hand, the involvement of a Minister (as opposed to a "Ministry") in a proceeding can itself give rise to concerns - as is illustrated by the decision of the New Brunswick Court of Appeal in Chipman Wood Products (1973) Ltd. v. Thompson [1996] N.B.J. No.35 (decision issued August 14, 1996). In Chipman, the Minister appeared on behalf of a party before a tribunal whose members were appointed by the Cabinet of which the Minister was a member, and the other side successfully claimed that the Minister's involvement in the case raised a reasonable apprehension of bias, that tainted the tribunal's decision.

140. So the Minister's personal role in a proceeding may well matter.

141. Be that as it may, I do not think that there is any case precisely like the present one, nor would it serve much purpose to multiply the examples. Because, on balance, I do not think that the Board is obliged to reach any final conclusion on this point - for a number of reasons.

142. It is evident that the law in this area remains quite unclear, and is in a state of evolution (compare the quite differing views of the Ontario Divisional Court and the Ontario Court of Appeal in the CUPE (Minister of Labour) case; and see also the quite differing views of the British Columbia Court of Appeal and the Supreme Court of Canada in Ocean Port Hotel Limited v. General Manager, Liquor Control of British Columbia (1999), 1999 BCCA 317, 174 D.L.R. (4th) 498, recently reversed by the Supreme Court of Canada on March 22, 2001 (with reasons to follow), 2001 SCC 52, [2001] S.C.J. No. 17. This is an area in which learned judges can differ - just as the Trial Division and the Federal Court of Appeal did in Sethi. Which perhaps illustrates the difficulty that a tribunal faces, when invited to embark upon this kind of enquiry into uncertain territory.

143. Given that legal uncertainty, it seems to me that the appropriate approach for the Board is one of caution and restraint - especially in an unusual case like this one. Where the "outside law" is uncertain, I think the Board should lean towards doing the job that the Legislature has assigned it to do - at least in the absence of clear and definitive judicial authority preventing the Board from doing so. (I note parenthetically that the complainant unions did not seek any Court order prohibiting the Board from proceeding, and did not seek relief under the Public Officers Act, which would seem to provide both a vehicle for addressing their legal issue, and the authority to grant them the specific relief requested.)

144. In the instant case, therefore, I do not think that the Board should lightly conclude that its entire complement of adjudicators is precluded from hearing the case - particularly when that proposition may have far-reaching ramifications for a whole range of situations and case types within the Board's adjudicative authority. For, quite frankly, while the context and the involvement of the Minister as a respondent makes this case exceptional, it is a very short step between the Minister's involvement as a party, and Ministerial involvement as a party - which happens all the time.

145. It is not at all unusual for the Crown (the government) to be a party in proceedings before the Board; and there can be no doubt that Board adjudicators are appointed by the government for fixed terms. So if that paradigm is problematic, it is problematic in a lot more important settings than the one identified in the instant case.

146. I am also mindful of the fact that this "preliminary” legal issue is one of "pure administrative law" - which is to say, it is not an area where the Board has any particular expertise, nor an area where the Board is entitled to any judicial deference. Indeed, despite the unions' suggestion to the contrary, I have some doubt whether a Court would be much influenced by the Board's legal opinion on its own independence. This is the kind of question that is more authoritatively and finally determined in a judicial forum - which is a more appropriate place for addressing this kind of issue.

147. I do not suggest that the Board should shrink from its duty to decide issues that have been put before it for determination. However, where the answer is unclear, and the consequences are significant, I think that the Board should lean towards performing the functions which the statute has placed within its area of responsibility - fully recognizing that the Courts may intervene on review should they so choose. Fully recognizing too, that the "institutional facts" for that purpose may have to be filled out much more fully and carefully than has been done so far.

148. Finally, I do not think I can ignore either the nature of the unfair labour practice allegations raised in this case (i.e. the merits), or the fact that it is the complaining party that is urging the Board not to inquire into its own complaint. When that curiosity is factored in with the other aspects of the case, it seems to me that what this case really calls for is a conclusion - leaving it to either party to seek whatever judicial intervention seems appropriate. And, if the Board does render a final determination on the merits of the case, as the statute empowers it to do (bias issues aside), then that will probably enhance the parties' legal options.

149. For all of these reasons, I am persuaded that I should make a decision on the respondents' motion to dismiss without a hearing - that is, determine whether the Labour Relations Act actually applies to the respondents, and determine whether the allegations, if true, would constitute a prima facie breach of the Labour Relations Act.

V - Does the Labour Relations Act apply to the Crown in this context, and do the unions' allegations, assuming them to be true, fit within any of the unfair labour practice provisions relied upon in the complaint?

150. I will return later to whether the behaviour that the unions are complaining about, actually "fits" within any of the sections of the Labour Relations Act that the unions rely upon. The unions say that it does, and the responding parties say that it does not. However, it seems to me that there is a much more formidable hurdle for the complainants to overcome, namely: whether the Labour Relations Act applies at all in this context. For as noted above, section 4 of the Labour Relations Act reads as follows:

151. (1) This Act binds agencies of the Crown other than,

(a) those that employ Crown employees as defined in the Public Service Act; and

(b) those that are designated under clause 29.1(1)(a) of the Public Service Act.

(2) Except as provided in subsection (1), this Act does not bind the Crown.

151. This formulation may be usefully compared to section 47(1) of the Human Rights Code which provides:

This Act binds the Crown and every agency of the Crown.

152. Section 4 of the Labour Relations Act is a restatement of the common law principle of "Crown immunity", which, in turn, is given specific statutory expression in section 11 of the Interpretation Act:

153. No Act affects the rights of Her Majesty, Her heirs or successors unless it is expressly stated therein.

In their text Liability of the Crown, Third Edition, Carswell, Scarborough, 2000) Professors Hogg & Monahan describe the effect of that section as follows:

The rule is that the Crown is not bound by statute except by express words or necessary implication. What this means is that general language in a statute, such as "person" or "owner" or "landlord", will be interpreted as not including the Crown, unless the statute expressly states that it applies to the Crown, or unless the context makes it clear beyond doubt that the Crown must be bound.

153. There is nothing in section 4 of the Labour Relations Act that overrides this provision of the Interpretation Act. On the contrary, section 4 of the Labour Relations Act restates and reinforces the principle of Crown immunity. It says, quite unequivocally, that the Labour Relations Act has no application to the Crown.

154. The Courts have consistently recognized that, at common law, a Minister is a "servant" of the Crown (see for example: Rawer v. Rachandran, [1970] A.C. 962 (P.C.) at 973; Bank Voor Handel v. Administrator of Hungarian Property [1954] A.C. 584 (H.L.) at 616; McKenzie-Kennedy v. Air Council [1927] 2 K.B. 517 at 523; and see again: Hogg and Monahan, Liability of the Crown. The Proceedings Against the Crown Act supports the same proposition. Ministers of the Crown are the embodiment of power in the executive branch of government. It is Ministers who direct, and are responsible for, the work of the civil servants in the various Ministries for which the Minister is responsible.

155. When a Minister is addressing legislative issues, crafting policy, and interacting with interest groups in respect of legislation that is currently before the Legislature, it would take very strong evidence to suggest that he was not acting as a Minister of the Crown. And here, of course, there is really no doubt about what the Minister was doing: he and his officials were engaging the union constituency to see what legislative platform might be acceptable and would also achieve the policy objectives that Bill 69 envisaged. The fact that some trade union organizations were opposed to that legislative direction, does not alter the character of what the Minister was doing.

156. Moreover, I do not think that it is open to the unions in this case to claim that the Minister (let alone the Premier) was "off on a frolic of his own", or was not acting in his Ministerial capacity in respect of the ongoing debate on collective bargaining policy or the legislation then pending before the Legislature. Indeed, the thrust of the unions' "intimidation" allegation depends upon the assumption that the Minister was acting in a governmental capacity, "threatening" legislative change of which the unions do not approve. The thrust of their allegation against the Premier is that he was somehow instrumental in crafting offensive (to the complainants) legislation, or piloting that legislation through the Legislature. In this sense, the case is very much "about" the respondents' legislative and governmental role.

157. Now, as I have indicated earlier: as matter of legal process, neither the Premier nor the Minister alone can effect legislative change; only the full Legislature can do that. And when Ministers are in the Legislature, actually debating or voting on government Bills, they are acting in their "legislative" rather than their "executive" capacity. But it is simply not possible to claim that the behaviour complained about here, is disconnected from Mr. Stockwell's role and responsibilities as a Minister of the Crown and legislator; and it is perhaps indicative of that conclusion, that so much of the material relied upon by the complainants consists of statements by the Minister in respect of the then ongoing legislative process - including statements by the Minister (and other members of the Legislature) made in legislative committee meetings and in the legislative debates. And, of course, the only complaint against the Premier concerns his legislative role as head of government: it is said that he has somehow acted improperly by supporting legislation that favored a particular interest.

158. Whether or not any of these allegations are "true and provable" in the precise terms found in the complaint, it is the Premier's legislative or governmental role that is in issue. Likewise, the Minister of Labour.

159. In my view, the behaviour attributed to the respondents falls within the scope of their role as Ministers of the Crown, and that brings them squarely within the ambit of section 4 of the Labour Relations Act, read together with section 11 of the Interpretation Act. Thus - to borrow the text writers' explanation - when one encounters the word "person" in the unfair labour practice (or other) provisions of the Labour Relations Act, one must remember that the word "person" does not apply to the Crown or to a Minister of the Crown. Which, as a practical matter, means that these sections do not apply to the respondents in the situation under review.

160. On that basis alone, this complaint must be dismissed.

161. Simply put: the Labour Relations Act does not apply to the responding parties.

162. Nevertheless, if I am wrong, and if the Labour Relations Act really does apply in some general sense, does the behaviour complained of actually fall within the ambit of any of the sections of the Act upon which the complainants rely? Were the words of those sections ever intended to capture the kind of activity of which the unions complain in this case? Is that a sensible or probable construction of the legislative intention?

163. I might begin by observing that the focus of the legislation is on the collective bargaining relationship between employers and employees (see the "Purposes" of the Act stipulated in section 2). The Act is designed to facilitate such relationships, and prevent employers from using their superior economic power to frustrate the process of collective bargaining, or penalize employees who choose to join a trade union. The Act does not regulate the independent actions of third parties, however "anti-union" those actions might be. The third parties must be directly linked in some way to an employer or to some employer-employee relationship, and the third party must be acting on behalf of the employer to accomplish an improper end.

164. There is no employer named as a responding party. Nor is it said that the Crown, or the Premier, or the Minister is an "employer" or acting in the capacity of an "employer" (i.e. even if the Labour Relations Act applies to them). Certainly these Ministers of the Crown are not "employees" of an employer, or "agents" of an employer in any commonly accepted legal sense.

165. Accordingly, under the unfair labour practice sections of the Act, the question boils down to whether the behaviour complained of fits within the specific prohibitions (i.e. the words: "coercion", "intimidation", etc.) enumerated in each of those sections, and whether, in each case, the Minister and/or the Premier, by engaging in that behaviour, can be said to be "acting on behalf of an employer".

166. In order to fall within these words, I would have to conclude that by encouraging, supporting or warning of legislation that may benefit a defined employer constituency, individual Ministers are somehow "acting on behalf of" those particular employers - rather than in the "public interest" as they see it; and I would have to conclude that "threatening legislation" (to accept the unions' description for a moment) is "intimidation", "coercion" or "interference" within the meaning of the Labour Relations Act. But, on this construction, any legislation or government action which benefits a defined employer group, would meet the test of these unfair labour practice provisions. So would the acceptance of any submission from any employer lobby group: it could be said that the government or the Minister with responsibility for the legislation was "acting on behalf of" those who proposed or might benefit from the change.

167. Yet, when legislating, the Legislature is presumptively acting in the public interest in pursuit of objectives thought to be socially or economically desirable; and it is difficult to see how "threatening" to change the law (which the Legislature is entitled to do), is somehow unlawful under existing law. Nor do I think it matters that the impetus for such legislative change is some action or inaction by persons in the community – that is, that such persons are exercising existing rights, or refusing to exercise existing rights in a particular way. And to repeat: no single parliamentarian or Minister can change the law anyway, so the Minister's "threat" (if that is what it was) amounted to no more than a prediction of a lawful outcome - or perhaps an indication of a legislative direction that he himself would be inclined to support.

168. None of this activity fits, or was ever intended to fit, within the unfair labour practice provisions of the Labour Relations Act; and I do not think that it serves any purpose to parse each sentence and scrutinize each word and comma, (i.e. reading the statute like a Martian with a dictionary) to see whether, on some linguistic construction, the words could be stretched to cover the behaviour under review. In my view, it is perfectly plain that the sections were never intended to cover what the unions are complaining about here; and in this respect the unions' complaint is simply misconceived.

169. In this regard, I think it is useful to recall the comments of the Ontario Court of Appeal in Roman Corporation Ltd. v. Hudson's Bay Oil & Gas Ltd. et al (1971), 1971 CanLII 44 (ON CA), 23 D.L.R. 292. In that case, the plaintiff complained of a telegram from the government, indicating its intention to prohibit a proposed business deal, and to enact the legislation necessary for that purpose. The plaintiff alleged that this communication (the "threat" of legislation) constituted a variety of torts, including wrongful procurement of breach of contract, conspiracy, intimidation, and unlawful interference with economic interests. The plaintiff complained that the government was unlawfully pressuring him and others to refrain from doing what, as the law then stood, they had every right to do. However, the Court held that the government was protected by parliamentary privilege which was described this way:

The object of the privilege is, of course, not to further the selfish interests of the Member of Parliament but to protect him from harassment in and out of the House in the legitimate activities in carrying on the business of the House; consideration of the interest of the public in this regard overbears the usual solicitude in our law for the private individual. Viewed in this manner, and that approach, I think, all of the actions of the respondents complained about, and specifically the sending of the telegram and the issuing of the press release were not more and no less than the legitimate and lawful discharge by the respondents of their duties in the course of parliamentary proceedings as Ministers of the Crown and Members of the house.

170. This case involved the defence of "Parliamentary Privilege" which the Crown here asserts as an independent reason why this complaint cannot proceed. However, in my view, the case is also helpful in determining the content of the words like "threat", "intimidation", "interference" or "coercion" found in the Labour Relations Act.

171. What the case suggests, once again, is that an expression of intent to legislate, or the support for particular legislation, or a warning about pending or possible legislation, should not be construed as "intimidation", "coercion", or "unlawful interference"; and further, that supporting legislation that may benefit some element in the community, cannot be considered to be "acting on behalf" of that element within the meaning of the Labour Relations Act. Government Ministers are presumptively seeking, and acting on behalf of, the public interest; and if the public (or a particular interest group) should disagree, there is a remedy at the ballot box.

172. Having carefully considered this novel situation, I have concluded that the behaviour in question, even if accurately stated in the complaint, does not, and was never intended to, fall within any of the sections upon which the complainants rely. It is political, or legislative, or governmental action, intimately intertwined with the legislative process, which is not justiciable under the Labour Relations Act. To borrow the words of the British Columbia Labour Relations Board in somewhat similar circumstances, the statements in question were "clearly in pursuance of, or an elaboration upon, an established governmental policy". (See: Association of Commercial and Technical Employees, Local 1728 vs. Dr. Patrick McGeer, [1979] 3 Can LRBR 454.)

173. As the Saskatchewan Labour Relations Board said in Re Saskatchewan Power Corporation, [2000] S.L.R.B.D. No.3, file #207-9, "in the role as a legislator, government is able to suspend the [Labour Relations] Act and change the rules of bargaining mid-stream, as it did on this occasion"; and in my view, a government is equally able to announce its intention to do so, if, in the government's opinion, there is a "problem that needs fixing" and it looks like it is not going to be "fixed voluntarily". Indeed, the circumstances of the instant case more strongly favour the respondents' position, because the impugned discussion and debate involved pending legislation that was then already proceeding through the Legislature - legislation to which stakeholders were invited to respond, and wanted to respond, both inside and outside the Legislature.

174. Not to put too fine a point on it, a sovereign Legislature is entitled to change the law respecting collective bargaining rights, and government Ministers are entitled to identify the options and their intentions, and none of this constitutes interference or intimidation or coercion or acting on behalf of employers within the meaning of the unfair labour practice provisions of the Labour Relations Act. It is open to a Minister of the Crown to say, in effect, "we expect that rights will be exercised in a particular way so as to produce what we have determined to be a socially desirable outcome, and if existing rights are not exercised in that way, we may change them, or produce that outcome by other legislative means". The Legislature is entitled to change the law; and I think that it is open to a Minister to advise parties about what he intends to urge the Legislature to do.

175. For the foregoing reasons, even if the Labour Relations Act applies to the respondents, I do not think that the words of the statute actually capture the behaviour which the unions are complaining about.

176. For all of these reasons, then, this complaint is dismissed.

VI - Some final observations

177. I do not wish to leave this matter without some brief concluding comments.

178. This is, by any standard, a most unusual case. There is no obvious answer to how one should respond when the complaining party asserts that the Board has no jurisdiction to hear its own complaint, based on wholly external legal rules that are today in a state of considerable uncertainty; and, at the same time, the responding parties are, for different reasons, also asserting that the Board should not hear the matter.

179. It is rather unusual for the Board to have a case put before it in which all of the parties are urging the Board not to deal with the matter.

180. I have therefore tried to address the issues before me, in a manner which, in my view, is most consistent with the overall scheme of the Labour Relations Act, the particular expertise of the Board, and the special responsibility that the Board has for the interpretation and administration of that legislation.

181. That said, I am also mindful of the fact that the issues raised in this case are not wholly within the realm of labour law, or within the exclusive purview of the Board. Indeed, insofar as the "apprehension of bias/institutional bias" arguments are concerned, these have been wholly the creation of the Courts - for the most part in the last 5 years or so.

182. Accordingly, if I am wrong with respect to the apprehension of bias/natural justice issue, the Courts may so declare and the foregoing result may be a nullity. The Board neither can nor does assert any particular expertise in this area; so that if the Board, as currently constituted, is incapable of hearing a case involving politicians, or Ministers, or the Crown itself, then the Courts will so rule. However, even in that eventuality, the Court will have the benefit of the Board's statement of the legislative and labour relations context, which the Court may wish to consider for the purposes of other Crown-related cases, and for the purpose of appointing outside adjudicators to undertake the tasks that the Board itself cannot perform.

183. On the other hand, if there is no "administrative law problem" with the Board's jurisdiction, I have now rendered a final determination in accordance with the scheme of the Labour Relations Act, as I read it. That decision is as subject to the judicial review as any other determination of the Board applying the statute to a particular set of facts. With that final determination, the unions can, if they so wish, challenge the Board's decision on judicial review; and the Courts can set the decision aside, in whole or in part, or give whatever other directions the Courts may consider appropriate.

184. In either case, the parties will have access to the Courts for a definitive interpretation of how "the law" might apply to this unusual complaint.

185. The Courts will have the "last word", should the parties so request and should the Courts themselves choose to intervene.

“R. O. MacDowell”

for the Board