1306-99-R Metcalfe Realty Company Limited, Applicant v. The Carpenters’ District Council of Ontario of the United Brotherhood of Carpenters and Joiners of America; The Carpenters’ District Council of Toronto and Vicinity; Lake Ontario District Council; Carpenters District Council of Western Ontario; Ontario Acoustical and Drywall District Council and United Brotherhood of Carpenters and Joiners of America and Local Unions 18, 27, 93, 249, 397, 446, 494, 572, 675, 785, 1071, 1256, 1316, 1450, 1669, 1946, 1988, 2041, 2050, 2222, 2451 and 2486 of the United Brotherhood of Carpenters and Joiners of America, Responding Parties.

3611-99-R The Carpenters’ District Council of Ontario of the United Brotherhood of Carpenters and Joiners of America; The Carpenters’ District Council of Toronto and Vicinity; Lake Ontario District Council; Carpenters District Council of Western Ontario; Ontario Acoustical and Drywall District Council and United Brotherhood of Carpenters and Joiners of America and Local Unions 18, 27, 93, 249, 397, 446, 494, 572, 675, 785, 1071, 1256, 1316, 1450, 1669, 1946, 1988, 2041, 2050, 2222, 2451 and 2486 of the United Brotherhood of Carpenters and Joiners of America, Applicants v. Metcalfe Realty Company Limited; Thomas G. Fuller & Sons Limited and Thomas Fuller Construction Co. (1958) Ltd., Responding Parties.

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Michael S. Ruddy and Jan Haubrich for Metcalfe Realty Company Limited; N. L. Jesin, C. Calligan and Andy Root for the Carpenters; Simon Fuller for Thomas G. Fuller & Sons Limited; Bill Fuller for Thomas Fuller Construction Co. (1958) Ltd.

DECISION OF THE BOARD; June 19, 2001

1. On July 29, 1999, Metcalfe Realty Company Limited (Metcalfe) brought an application pursuant to section 127.2(1) of the Labour Relations Act, 1995 (the “Act”), seeking a determination that it met the definition of “non-construction employer”. Metcalfe seeks a declaration that the collective agreement between it and the United Brotherhood of Carpenters and Joiners of America (the Carpenters) is no longer binding upon it. During the course of the hearing, the Act was amended. The parties seek the Board’s determination about whether the amended Act applies to these proceedings, or the Act as it read when the application was filed.

2. At the time Metcalfe filed its application the relevant provision of the Act read as follows:

126 (1) …

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

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

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

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

3. The hearing is in process. Evidence has been started, but not completed. On December 29, 2000, amendments to the Act came into effect. The relevant provisions read as follows:

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

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

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

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

4. What is significant for this application is the change in the definition of “non-construction employer”. In its application Metcalfe identifies itself as a property owner and manager of commercial and residential buildings, which provides “expertise and services to the commercial real estate market including leasing, marketing, project financing, tenant co-ordination, operations and maintenance”. Metcalfe has also pleaded that its primary business is developing and leasing space in buildings it owns and manages. However, in its pleadings, Metcalf has acknowledged that in connection with its primary business, it earns revenues when it acts as a project co-ordinator on capital projects undertaken in buildings managed by Metcalfe but owned by another; on leasehold improvements for existing tenants and on leasehold improvements undertaken pursuant to a leasehold allowance. Without making any findings of fact, it would appear, having regard to the pleadings, and comparing the old and new definitions of “non-construction employer”, that Metcalfe’s chances for a successful determination are greater under the old definition.

5. The Act has no transition provisions to give guidance about the effect of the amendments on ongoing proceedings. Consequently, this issue falls to be determined using the traditional tools; the Interpretation Act, jurisprudence and relevant tests, in particular Driedger on the Construction of Statutes (3rd ed.) by Ruth Sullivan, (Butterworths , 1994).

6. The relevant provisions of the Interpretation Act reads as follows:

7. (1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except as in this Act otherwise provided,

(a) revive any Act, regulation or thing not in force or existing at the time at which the repeal or revocation takes effect;

(b) affect the previous operation of any Act, regulation or thing so repealed or revoked;

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, regulation or thing so repealed or revoked;

(d) affect any offence committed against any Act, regulation or thing so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof;

(e) affect any investigation, legal proceeding or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture or punishment,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act, regulation or thing had not been so repealed or revoked.

When other provisions substituted

(2) If other provisions are substituted for those so repealed or revoked,

(a) all officers and persons acting under the Act, regulation or thing so repealed or revoked, shall continue to act as if appointed under the provisions so substituted until others are appointed in their stead;

(b) all proceedings taken under the Act, regulation or thing so repealed or revoked, shall be taken up and continued under and in conformity with the provisions so substituted, so far as consistently may be;

(c) in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights existing or accruing under the Act, regulation or thing so repealed or revoked, or in any other proceeding in relation to matters that have happened before the repeal or revocation, the procedure established by the substituted provisions shall be followed so far as it can be adapted; and

(d) if any penalty, forfeiture or punishment is reduced or mitigated by any of the provisions of the Act, regulation or thing whereby such other provisions are substituted, the penalty, forfeiture or punishment, if imposed or adjudged after such repeal or revocation, shall be reduced or mitigated accordingly.

7. Summarizing the parties’ positions, Metcalfe submits that this proceeding should be continued under the provisions of the Act as they existed prior to the amendment because subsection 14(2)(c) of the Interpretation Act applies in the circumstances. Metcalfe submits that having brought an application for a determination that it is a “non-construction” employer, as that term was defined, it has an “accruing right” to have its application completed and determined under the law as it was when it brought the application. The Carpenters, in contrast, submit that the Board should be guided by subsection 14(2)(b) of the Interpretation Act. It disagrees that Metcalfe’s wish to have its status determined under a particular definition of “non-construction employer” is an accruing right. Consequently, the Carpenters submit, subsection 14(2)(b) directs the Board to take up and continue this application, with appropriate amendments to the pleadings, if necessary “in conformity with the provisions so substituted”, that is, with regard to the amended definition of “non-construction employer”.

8. The Carpenters submit that Metcalfe has no “accrued or accruing right” to a determination about its status under one particular definition of “non-construction employer” or another. Instead, counsel submitted, Metcalfe is an entity with a particular set of characteristics. On one day the legislature ascribes a particular status to that set of characteristics. For example, prior to any creation of the “non-construction” employer, Metcalfe’s characteristics gave it the status of an employer in the construction industry. The legislative enactment of the first non-construction employer definition gave it the opportunity to seek a determination that its characteristics gave it the status of non-construction employer. The amendments to the definition of non-construction employer may mean that Metcalfe’s characteristics no longer permit it to claim the status of non-construction employer, but Metcalfe has not lost a vested right. Counsel submitted that the courts have held that legislative change that affects status enjoys immediate prospective effect. To find otherwise, counsel for the Carpenters submitted, creates the real risk that the legislative change will never be implemented. For example, counsel submitted, from time to time the legislature has amended the definition of “spouse”, widening the class of relationships that attract such status. It would be absurd, counsel submitted, if the widened definition of spouse applied only to those persons who enter relationships after the date of proclamation. Instead, counsel submitted, the new definition applies to anyone in a relationship whose characteristics meet the new definition.

9. The Carpenters rely on the oft-cited case decision of the Supreme Court of Canada in Gustavson Drilling (1964) Limited, 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271. The Federal Parliament had amended the Income Tax Act at various points to permit drilling companies, and their successors to deduct from future earnings the costs of exploration. At the point Gustavson, supra, wanted to make the deduction, the Income Tax Act did not recognize it as a company entitled to make the deduction for past costs. Gustavson argued that at a point in the past, the Income Tax Act recognized it as such a company, and the right to make those deductions remained in perpetuity.

10. The majority of the Court disagreed:

It is immaterial that the appellant company had a particular status as the result of previous legislation. Parliament acting within its competence has said that as of 1962, and for the purposes of calculating taxable income in future years, the appellant has a different status.

11. In rejecting the argument that the company had a vested right to continue making the deductions that had been a consequence of its previous status, the Court wrote:

The mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued.

12. Counsel for the Carpenters argues that the situation before me is analogous. At one point in time, Metcalfe’s status was to be determined by the legislature’s then enacted definition of “non-construction employer”. A change in the definition of “non-construction employer” may well mean that Metcalfe will no longer be able to succeed in its application and meet the new definition, but there has been no impact on its vested rights. In contrast, counsel submitted, an employer who had been determined by the Board to be a “non-construction employer” under the old definition is safe from a challenge under the new definition because that employer does have vested rights, that cannot be taken away merely by the creation of a new definition.

13. Counsel for Metcalfe argued that his client’s right to a determination under the law as it existed crystallized at the point it filed its application in July of 1999. Counsel describes its rights as “accruing”, within the meaning of section 14(2)(c) of the Interpretation Act. Counsel provided the Board with a copy of Re Rai (1980), 1980 CanLII 1644 (ON CA), 27 O.R. (2nd) 425, which defined “accruing right”. In that case, the plaintiffs had brought an adoption application which was dismissed at trial. The Court of Appeal reversed the decision, but in the meantime, the relevant legislation had been amended to give jurisdiction over the subject matter to a different court. In determining whether the adoption application could be continued the Court interpreted the word “accruing”:

Some meaning must be given to the word “accruing” in subsection 14(1)(c) of the Ontario Interpretation Act. Manifestly, it cannot serve to preserve abstract rights, such as those which all members of the community or a class of the community enjoy. However, if procedural steps have been taken to enforce or establish a particular right, that right must be accruing. In the present case the appellants were entitled to have their application dealt with, not as a matter of pure discretion, but according to law. The Judge dealing with the matter had to make a judicial decision. So, I think it can be fairly said that their prospective right to adopt a child was an accruing right.

14. The Court of Appeal concluded that the adoption application could be continued in the court which, under the amendment, had jurisdiction.

15. Counsel also relies on an often quoted decision of the Saskatchewan Court of Appeal in Scott v. College of Physicians and Surgeons of Saskatchewan, [1992] S.J. 432. Dr. Scott was a physician who had been struck from the rolls in January 1987. In October of 1989 he applied to be re-admitted but was denied, because in September 1989, the relevant legislation had been amended to require that requests for re-admission be made within a year of being struck. Prior to the amendment, there had been no time limit. In anticipation of making the request for re-admission, Dr. Scott had been engaged in discussions with the College around the terms of his re-admission, which included paying the College’s costs of an earlier disciplinary hearing.

16. The starting point of the decision is the Court’s finding that Dr. Scott had a “right” to have his name re-entered, and this right was concrete and specific to him. The Court also concluded that the College had a congruent obligation to re-admit Dr. Scott. The Saskatchewan Interpretation Act provided that amendments to legislation did not “affect any right, privilege, obligation or liability acquired, accrued, accruing, or incurred under the Act, enactment or regulations so repealed or revoked …”. The Court went on to consider what meaning to give the term “accruing right” in the case before it:

In the context under consideration, I cannot think the legislature intended the term to mean that which may, in the sense of possibility, ripen into an acquired or accrued right or obligation at a future time. As will be readily apparent, the implications of that in relation to the effectiveness of repeal are simply too wide to be acceptable.

That coupled with the ordinary and grammatical sense of the language of the provision leads me to believe that by “accruing right” and “accruing obligation” the legislature meant one that will, rather than may, in time accrue. The word “accruing”, as it appears in the provision and applies to rights and obligations, is used in conjunction with “accrued”. The one houses the same basic idea as the other, separated only in time. The difference is merely one of tense. And so I conclude that “accruing” rights and obligations are those necessarily or inevitably, not possibly or even probably, arising in due course. In other words I am of the opinion that before a right—and its correlative duty—may be said to be “accruing”, the events giving rise to it or the conditions on which it depends for its existence, must have been set in train or engaged as inevitably to give rise in due course to the right and its corresponding duty.

It follows, in a case such as this, that the mere entitlement to take advantage of a statute cannot be taken to constitute an “accruing” right or to give rise to an “accruing” obligation. Put another way, it cannot be said that, because there is a right to be had, it is accruing. That would violate the language and render repeal altogether ineffective. Nor can entitlement combined with intention to take advantage of an enactment suffice. That, too, would distort the language and cut into the effectiveness of repeal. Entitlement and intention, coupled with a positive step toward realizing the right, is getting closer to the mark. But the taking of some step or the doing of some act, of whatever kind and however far removed, toward acquiring a statutory right is insufficient to turn what would otherwise have been nothing more than a mere “hope or expectation” into an “accruing right” or “accruing obligation”. The required element of inevitability is lacking.

17. The Court decided Dr. Scott had taken significant and substantive steps towards being admitted into the College prior to the amendment of the legislation which had “…incrementally brought the matter so near fruition…” that his was an accruing right worthy of protection.

18. In the case before me, Metcalfe submits that its position is even stronger. It did not merely intend to bring an application, and make preliminary enquiries, it had brought an application that was being heard, on the merits, when the legislation was amended. There could not, it submits be a clearer case for the application of the concept of an “accruing right” to have a matter determined on the basis of the legislation as it existed. Metcalfe points out that the Board has reached a similar conclusion in near identical circumstances.

19. In Windsor Essex Catholic District School Board, [2000] O.L.R.D. No. 440, a union had applied for certification in the construction industry. Three months after the application was made, the Labour Relations Act, 1995 was amended, adding the original “non-construction employer” provisions, set out above. The employer argued that it met the definition of “non-construction employer” and should be able to take advantage of the amendment in its defence to the application for certification. The Board concluded that the relevant law was that which applied at the time the application was filed. The filing of the application, in the Board’s view, completed all of the events which were relevant to the Board’s determination. To apply the new law to the application would give retroactive or retrospective effect to legislation, a result that should be avoided unless the legislation specifically so provides. The Board determined the issue on the principles concerning retroactivity and retrospectivity, not on the basis of vested rights.

20. Counsel for Metcalfe submitted that its client had organized its affairs, and made an application to the Board on the basis of the law as stood at that time. To require that this matter be concluded under a different definition of “non-construction employer” would be unfair, and contrary to the general principle that new law should not reach into the past and touch events past. Further, section 14(2)(c) of the Interpretation Act, as it and similar legislation has been interpreted by the courts, recognizes that having taken steps to assert a claim gives rise to an “accruing right” to have the matter determined in accordance with the legislation as it existed prior to the amendments.

Decision

21. Dreidger on the Construction of Statutes, devotes several pages to the challenges in determining how and when amendments to legislation apply. One of the considerations or principles of interpretation is that amendments are presumed not to interfere with vested rights. Starting at page 532, the author discusses the difficulties the courts have faced in determining what are vested or accrued rights:

In their efforts to determine what is a vested or accrued right, the courts focus sometimes on the common law presumption, sometimes on the language of the Interpretation Acts. Regardless of focus, the central problem is the same. The court must decide whether the particular interest or expectation for which protection is sought is sufficiently important to be recognized as a right and sufficiently defined and in the control of the claimant to be recognized as vested or accrued.

Some vested rights are easily recognized. Property rights, contractual rights, and rights to damages or other common law remedies are well-established categories. So are defences and immunities from suit. Generally speaking, these are “private law” rights with a respectable common law pedigree; their importance is taken for granted. Moreover, it is usually possible to identify specific point at which these rights arise and can be said to “belong” to a claimant. The acquisition of property rights, for example, normally occurs at a particular and well documented moment, in accordance with statutory or common law rules …

Outside these traditional categories it is difficult to predict when a given interest or expectation will be recognized as a vested or accrued right. There is a vast range of claims that may be made pursuant to a statute for benefits, authorizations exemptions, remedies orders and the like. The methods of establishing and enforcing those claims follow no fixed patterns. In each case the court must decide whether at the moment of repeal the individual's statutory claim was sufficiently defined and developed, and sufficiently in his or her possession to count as a vested right.

[emphasis added]

22. After setting out the various tests that courts have tried to develop to determine which rights are vested and accrued, the text concludes:

The vague and inconclusive character of these criteria is evident. They supply the language used by the courts to describe their conclusions but do little to determine outcomes. In the end the test suggested by Judge Bissonnette in Syndicat des Écoles [Syndicat des Écoles protestantes d’Outremont v. Outremont, [1951] K.B. 676] may be as precise as it is possible to be; a vested or accrued right is a claim or interest that cannot be defeated without causing a grave injustice. It is something that should be protected because to take it away as contemplated would be arbitrary or unfair.

[emphasis added]

The virtue of this definition is that it recognizes the value-laden exercise in which the courts engage when they assess whether something is a “right” that has vested” or “accrued”. In reaching their conclusions the courts consider the nature and importance of the interest affected, the reasonableness of the claimant’s expectations, the extent of the potential losses and offsetting gains and so on.

23. The author goes on to discuss the challenge in identifying what is an “accruing” right, a concept that is a creature of drafters of various Interpretation Acts, including Ontario’s. The author advises:

The courts would do well to abandon the attempt to define concepts like “accrued” or “accruing rights” in favour of an approach that is overtly policy-based. Whenever persons are disadvantaged in a disproportionate, unfair or arbitrary way for having

relied on the law as it stood when they made their plans, it is appropriate to permit the survival of the previous law subject to any indication of a contrary legislative intent.

[emphasis added]

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

25. In my view, although Metcalfe’s claim to continue its case is not as significant as the rights being protected in Re Rai and Scott, it is a significant claim that will likely be defeated if it is not permitted to “shelter” under the old definition of “non-construction employer”. Further, this is not a case in which the Board has to determine if the applicant has taken sufficient steps to take advantage of the legislation. Metcalfe had not only brought a claim; it is being adjudicated. It can be fairly said, to paraphrase Dreidger, that it would be unfair to Metcalfe not to permit it to rely on the law as it stood when it made its application. In my view, that is consistent with the approach and underlying principles relied on by the Board, particularly in the Windsor Essex Catholic School Board case, which has virtually identical facts.

26. I find that Metcalfe had an accruing right to seek a determination that it was a “non-construction employer” at the time the amendments were made. Having regard to section 14(2)(c) of the Interpretation Act I conclude, therefore, that this application should continue as if the relevant amendments to sections 126 and 127 had not been made.

“Mary Ellen Cummings”

for the Board