Indexed as:

Colautti Construction Ltd. v. I.U.O.E., Local 793

Between

Colautti Construction Ltd., Applicant

and

International Union of Operating Engineers, Local 793,

Employees Association of Colautti Construction Ltd.

and the Ontario Labour Relations Board, Respondents;

And Between

Employees Association of Colautti Construction Ltd.,

Applicant

and

International Union of Operating Engineers, Local 793,

Colautti Construction Ltd. and The Ontario Labour Relations

Board, Respondents

[1986] O.J. No. 1211

18 O.A.C. 62

86 CLLC 12379

86 CLLC para.14,065 at 12379

2 A.C.W.S. (3d) 127

Actions Nos. 526/85 and 1040/85

Supreme Court of Ontario - High Court of Justice

Divisional Court - Toronto, Ontario

Saunders, Sutherland and Ewaschuk JJ.

Heard: May 14 - 16, 1986

Judgment: November 20, 1986

R.G. Colautti and B.P. Nolan, for Colautti Construction Ltd.

M.S.F. Watson, for the Employees Association.

A.M. Minsky, Q.C., for International Union, Local 793.

S.T. Goudge, Q.C., for Ontario Labour Relations Board.

Reasons for judgment delivered by Saunders J., dismissing the applications; concurred in by Sutherland J. Dissenting reasons for judgment delivered by Ewaschuk J.

SAUNDERS J.:-- We are here concerned with two applications for judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1980, c. 224, in which we are asked to quash decisions of the Ontario Labour Relations Board (the "Board") and to grant related relief. The issues arise out of two applications to the Board for certification as bargaining agents for some of the employees of Colautti Construction Ltd. (the "Employer") by the International Union of Operating Engineers, Local 793 (the "Union") and by the Employees Association of Colautti Construction Ltd. (the "Association"). The result of the proceedings was that the Board certified the Union after having denied status to the Association. The two separate review applications before us are brought by the Employer and the Association respectively and are based on the procedures, findings and conclusions of the Board.

Background facts

Before stating the specific issues, I consider it necessary to set out the background facts at some length in order to put the issues into context.

1. The Employer is a construction contractor in the Ottawa area with about fifty employees. Prior to July, 1984, no trade union had been certified to act as bargaining agent for any of its employees.

2. On June 22, 1984, the Union filed an application for certification with the Board in respect of the operators and mechanics of the Employer. The Board set July 4, 1984, as the terminal date for the filing of membership evidence. On that day, certain employees sent to the Board a petition expressing their wish not to be represented by the Union.

3. As a result of the receipt of the petition and other matters raised in the reply of the Employer, the Board scheduled a hearing on July 30, 1984. At the hearing, there was some disagreement between the parties with respect to the list of employees filed by the Employer. As a result, the Board authorized a Board officer to inquire and report upon the list of employees filed and the composition of the bargaining unit. The matter was then adjourned to October 18, 1984.

4. Prior to the Board officer submitting his report, the Union, on September 4, 1984, requested the leave of the Board to withdraw its application. On September 5, 1984, the Board dismissed the application. While it had the discretion to do so, the Board did not impose a bar to any subsequent application for certification.

5. The Union, on September 4, 1984, filed a second application for certification of the employees of the Employer. It was identical to the first application except for the number of employees said to be in the bargaining unit. The Board, on this application, fixed the terminal date for filing of membership evidence at September 20, 1984.

6. On September 21, 1984, the Board received from the Association an intervention in the certification application by the Union and a separate application for certification. What were described as applications for membership in the Association were also enclosed. The Board sent out a notice of hearing which detailed the issues to be raised at the hearing including the membership evidence of the Association.

7. On November 15, 1984, the Board hearing was held with respect to the two applications for certification. Two principal issues, among others, were raised. First, the Board was asked to determine whether it should have exercised its discretion under s. 103(2)(i) of the Act not to entertain the Union's application. Secondly, the Board was asked to consider the form and sufficiency of the Association's membership evidence.

8. On the second issue, it was noted that the documentary evidence filed in support of the Association's intervention and application consisted of signed receipts for an amount of $1.00. It was submitted that the receipts were not accompanied by applications for membership in the Association and did not, themselves, constitute such applications. Counsel for the Association requested leave to call oral evidence whereby he intended to show that applications for membership were received at the same time as the $1.00 was paid and that the filed receipts were issued. After hearing and considering the submissions of the parties with respect to this request, the Board ruled that such oral evidence would not be permitted. Accordingly, in the view of the Board, since it had failed to establish it had representation rights respecting any employees, the Association was without status in the proceedings. Following this decision, the Board reserved its decision on the issues raised in the reply of the Employer to the second application by the Union. The decision of the Board with respect to those matters was rendered on May 14, 1985.

9. After giving its reasons for denying status to the Association, or to an employee who had signed the intervention, the Board made the following decisions:

(a) It refused to exercise its discretion to refuse to entertain the second application because of the withdrawal and subsequent dismissal of the first application.

(b) It determined the description of the appropriate bargaining unit. (There was no dispute before us on that determination.)

(c) It authorized a Board officer to inquire into and report on the list and composition of the bargaining unit and on the duties and responsibilities of a specific employee.

10. The written report of the Board officer was submitted on June 20, 1985 and circulated amongst the parties who were invited to make representations.

11. As a result of representations received, a formal hearing was held on October 21, 1985. On October 23, 1985, the Board issued a decision which amended the description of the bargaining unit. (This decision is not in controversy.)

12. A further hearing was held before a Board panel differently constituted. The purpose of this hearing was to receive representations with respect to the Board officer's report and the Union's entitlement to certification based on the membership documents filed. In an oral decision rendered at the hearing, the Board certified the Union as bargaining agent for the employees of the Employer. The oral decision was confirmed in written reasons released on October 29, 1985. The Board confirmed that there were twenty-five employees in the bargaining unit. Proper and sufficient membership evidence was filed by the union with respect to fourteen of those employees. Therefore, the Board determined that the Union had filed membership evidence on behalf of more than fifty-five percent of the employees of the Employer in the bargaining unit. In accordance with the Act, certificates were issued to the Union retroactive to October 21, 1985.

The applications for judicial review before us were supported by extensive affidavit material which, among other things, dealt with evidence of the circumstances surrounding the membership drives, the formation of the Association, the certification applications and the hearings before the Board. The admissibility of affidavit evidence on judicial review applications is extremely limited (see Keeprite Workers' Independent Union et al. and Keeprite Products Ltd., (1980) 29 O.R. (2d) 513; and Re Securicor Investigations & Security Ltd. and Ontario Labour Relations Board et al., (1985) 50 O.R. (2d) 570). Counsel for both the Union and the Board objected to the admissibility of most of the affidavit evidence. Some of that evidence is clearly inadmissible and some is admissible. I do not propose to deal with the matter further because I consider the issue to be academic. In addition to the facts already set out, the Association relied on two additional facts which were supported by the affidavit material. They were:

(1) that the Association was formed in July, 1984. The petition opposing the first application by the Union was submitted before the Association was formed by employees who had instructed a solicitor to form and organise the Association; and

(2) that the Association membership cards were divided into two equal parts. One part might be described as an application for membership in the Association and the other as a receipt by the Association of the sum of $1.00 from a member. When the Association submitted its application for certification in September, 1984, it sent in the receipt forms, having given the membership application forms to the employees. This mistake occurred by reason of an inadvertent slip on the part of the solicitor for the Association.

The above two facts were not disputed by either the Union or the Board and on that basis I propose to take them into account in considering the issues.

The issues:

The two application were heard together. I have summarised the issues as presented to the court by counsel in the form of four questions.

(1) In refusing to allow the Association to adduce oral evidence of membership, did the Board abrogate its statutory and common law duty to hear all of the evidence of the parties in a fair hearing?

(2) In refusing to allow evidence of membership, did the Board misinterpret rule 73(2) and, if so, was that misinterpretation an error of law going to jurisdiction?

(3) Did the Board err in not refusing to entertain the second application by the Union?

(4) Did the Board err by refusing to include in the bargaining unit two employees who were absent from work on the application date?

A further issue on the propriety of the Board completing the process with a different panel was presented but was abandoned in the course of argument.

Principles to be applied:

The Board is a creature of statute and must act within the powers given to it by the Legislature. The Act contains two privative clauses protecting the actions of the Board from review (Sections 106 and 108). Accordingly, based on current and developing jurisprudence, the Board must be correct in determining its jurisdiction but its decisions within the ambit of that jurisdiction may only be interfered with if there has been a denial of natural justice or if the decision is patently unreasonable or gives a meaning to words that they cannot reasonably bear. In particular, the members of the Board, as a group of experts, are knowledgeable in the field of labour relations and their policy and views on such matters are entitled to respect and to curial deference.

The need for caution and curial deference is particularly applicable when certification applications are being considered. These applications are sensitive and difficult. They often occur in a highly volatile and emotional atmosphere where peer pressure plays a large part. A review of the decisions of the Board over the years indicates that the Board considers it important that the certification process be completed as quickly as posssible consisent, in each case, with allowing the employees and also the employers to express their wishes. The Board has developed rules and policies designed to make the process expedient and certain. While at first blush some of its policies may appear to be draconian, their purpose is to determine the issues quickly and to avoid protracted litigation on membership issues. More importantly, membership is a private matter and for obvious reasons the membership status of each individual employee is kept confidential. The need for confidentiality is recognised in s. 111 of the Act and the process for certification as set out in the Act and regulations are consistent with that need. As a result, the normal procedures of tribunal must give way to a certain extent. Relevant evidence may be inadmissible and cross-examination and production restricted or prohibited. Natural justice must be approached with these considerations in mind.

This is not to say that the power of the Board is unlimited. It must keep within the Act and regulations. It must not deny natural justice or make decisions that are patently unreasonable or give meaning to words that they cannot reasonably bear. However, in assessing whether it has acted outside of those standards, the foregoing considerations must be recognised.

Association membership evidence issue:

The first two questions to be considered concern membership in the Association and may be dealt with together. At the hearing on November 15, 1984, the Board had before it the receipts from the Association and was aware that in the first application by the Union, a petition in opposition had been filed by some employees.

The Board, in effect, refused to allow the Association to adduce oral evidence of membership and denied status to the Association. From there on, it dealt with the matter as solely between the Employer and the Union although the Association was given notice of the next hearing.

In order to consider the membership issue and subsequent questions, it is necessary to set out in full part of the Act and regulations made under it.

The first duty of the Board is set out in s. 7(1) of the Act as follows:

7(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

Clause 103(2)(j) provides that the Board has power:

103(2)(j) ... to determine the form in which and the time as of which evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signification that is not presented in the form and as of the time so determined;

In carrying out its duty, the Board was subject to ss. 102(13) of the Act which provides:

102(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

As to members and membership in a trade union, clause 1(1)(l) of the Act provides:

1(1)(l) "member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning;

Finally, reference is made to rule 73(1) and 73(2) of the Board's Rules of Procedure which are part of the regulations made under the Act. Those rules provide:

73.--(1) Evidence of membershp in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

(a) The criteria for membership

An issue was raised in the course of argument that the use of the word "includes" rather than the word "means" in the statutory definition of "member" did not confine members to only those who had applied for membership in the Association and had paid dues.

General principles of statutory interpretation require the broader meaning. The word "includes" indicates that the definition is not exhaustive and that other criteria might constitute membership. Accepting that view as a correct interpretation of the definition, it does not, in my opinion, assist the Association. While it may be that in another case evidence other than evidence relating to applications for membership and payment of dues might be accepted, the only matters that were drawn to our attention that the Board could possibly have considered in this case were the receipts and the existence of a petition in the earlier proceeding. The petition was not evidence of membership in the Association. The signatories on the petition were employees who had instructed a solicitor to form and organise the Association. That, in my opinion, having regard to the often changing views on membership, is not evidence that each of those persons was, on the relevant date, or ever, a member of the subsequently created Association. Furthermore, the Board decided that the petition was not before it. The petition was filed on the first application and was not transferred to the second application. The Board had the power to make that decision and in my view it was correct in so doing. The decision was certainly not patently unreasonable. The Board was, therefore, left with the receipts as the only evidence of membership in the Association.

While nothing more need be said on the statutory definition of "member", I would like to add that I respectfully disagree with my colleague, Mr. Justice Ewaschuk, on his approach to that definition. In my view, the definition must be considered together with s. 103(2)(j) of the Act. The Board has the power to determine the form in which evidence shall be presented. That has been done in rule 73(1) which requires written evidence and in 73(2) which forbids oral evidence except to identify and substantiate written evidence. While the Board has no specific power to determine the nature of the evidence, its power to determine the form and time of presentation will inevitably substantially restrict the nature of the admissible evidence at a particular hearing. Confidentiality is key to the process ruling out direct oral evidence or indirect hearsay evidence. Certainty and expediency are important which justifies specific and well recognized practice. The Board must do its best in often difficult, sensitive and sometimes violent situations to determine the true wishes of the employees. Lengthy disputes over membership are undesirable in such situations. For some time, the Board has based its ascertainment of membership only on written evidence of applications and payment of dues which information it has kept confidential. While the method may be considered draconian and crude and may impinge on equitable principles in some cases, the method appears to be generally accepted by both employers and unions in the absence of any better method. In my opinion, it is not without significance that counsel for the Association did not raise the issue of the interpretation of the definition or suggest that the foundation for membership was other than an application and payment of dues.

(b) The refusal to permit oral evidence

When at the hearing on November 15, 1984, counsel for the Association discovered for the first time that a mistake had been made, he requested permission to call oral evidence that applications for membership had been received at the time the dollar was paid to the Association. It does not appear from the Board's reasons that he asked at that time that such evidence be admitted under the exception in rule 73(2).

The Board rejected the request. It found that the receipts did not reveal the purpose of the payment although earlier it had expressed the view that the dollar was presumably paid on account of membership dues or initiation fees. The Board further found that there was no evidence that the applications for membership had been made. The Board said in paragraph 11 of its reasons:

The form of receipt in evidence herein is acknowledgement by the intervener of payment of one dollar from someone purported to be a member of the intervener. There is nothing on the face of the receipt to identify the purpose of the payment and, in particular, it does not acknowledge the payment as being in respect of dues or fees of the intervener. Even if the receipt acknowledged that the payment of one dollar was in respect of dues or fees, the Board still would not have before it written evidence that the employees to whom receipts were issued have applied for membership in the intervener. Clearly, the receipts are not sufficient alone to satisfy both requirements of section 1(1)(l) of the Act and section 73(1) of the Rules of Procedure.

The Board recognized that oral evidence could be admitted under the exception in rule 73(2) to substantiate ambiguous documentary evidence. Here the Board found, in effect, that there was no written evidence of applications for membership which might be substantiated.

In refusing to hear further evidence, the Board was acting within its jurisdiction in interpreting and applying its constituent statute and regulations to the membership issue. While one might not agree with the Board conclusion that there was no written evidence of applications for membership and payment of dues, I am unable to say that the conclusion is patently unreasonable.

Board rule 84 provides that no proceeding is invalid by reason of any defect in form or of any technical irregularity. Here, there was a finding by the Board that there was an absence of evidence. In my opinion, such absence is neither a defect in form nor a technical irregularity.

The Board is required to give full opportunity to the parties to present their evidence (s. 102(13)). It was submitted that there was a tension between that requirement and rule 73. Rule 73 was made pursuant to the power to determine the form of evidence in s. 103(2)(j). There was no attack on the validity of the provisions of the Act and regulations. They all must, and can, be read together. Parties have a full opportunity to present their evidence in the form and at the time determined by the Board consistent with the powers conferred on it under the Act.

In this case, the Board applied the provisions of the Act and regulations to an evidentiary issue in a manner that was not patently unreasonable. In such circumstances, there was not, and could not be, a denial of natural justice.

I should refer to one further matter on this issue. The Association relied on an earlier decision of this court in Re Fisher et al. and Hotel, Clubs, Restaurants, Tavern Employees' Union, Local 261, et al. (1980), 28 O.R. (2d) 462. In that case, there was some written evidence of membership before the Board and the court decided that further evidence should have been permitted to give full opportunity to the parties to present evidence as required by what is now ss. 102(13). It is an unquestioned requirement that written evidence be before the Board prior to the hearing. This case is different from Re Fisher. In this case, the Board found that there was no evidence of membership applications so that there was nothing to substantiate. If that decision cannot be interfered with, it is the end of the matter.

Should the Board have entertained the second application for certification by the Union?

The Board had a discretion under s. 103(2)(i) of the Act to refuse to entertain the second application for certification by the Union. On September 4, 1984, the Union requested leave to withdraw its first application and that application was dismissed by the Board on the following day. At that time, the Board had the discretion to bar the Union for any period not exceeding ten months from making a new application. It did not do so which is not surprising as neither the Employer nor the Association was notified or participated in the withdrawal request which resulted in the dismissal.

At the November 15, 1984 hearing, the Employer asked the Board to exercise its discretion and not entertain the second application. The Board refused to do so on policy grounds. The following are extracts from the reasons of the Board:

Where no bargaining rights are already held for employees affected by the application for certification in question, it has been the Board's long standing policy and practice to exercise its discretion under s. 103(2)(i) to bar a new application when an earlier one has been dismissed where the employees' wishes have been tested in a representation vote and the applicant has lost the vote. In those cases, the Board automatically applies a six-months time bar when dismissing the application following the taking of the vote. Where the views of the employees in the bargaining unit have not been ascertained, in other words, where no representation vote has been held, the Board will not impose a bar as a general rule.

. . .

Where the Board has directed the taking of a representation vote and the applicant requests leave to withdraw its application before the vote is taken, the Board will dismiss the application.

. . .

If the applicant files a fresh application within six months from the date of the dismissal of the first one, the Board will require the applicant to show cause why the Board should entertain the new application.

. . .

The Board has made exceptions to its general approach in exercising its discretion to bar fresh applications in circumstances which might be described as unsuccessful applications for certification made within a very short period of time.

In giving its reasons the Board cited a number of its decisions. It concluded:

None of these grounds for refusing to entertain a second application for certification after an earlier, unsuccessful one are present in the instant application. Nor is the fact that the Board had not actually issued its decision dismissing the applicant's first application by the time that it filed the second one of itself grounds for prohibiting the second application. See the Board's decision in The Bristol Place Hotel, [1979] OLRB Rep. June.

Counsel for the Employer had argued that having regard to the petition in the first application, the Union was seeking to avoid having the true wishes of the employees disclosed in a representation vote by withdrawing the original application and immediately filing a new application.

The Board held that the petition in the earlier proceeding was not in evidence before it and as I have already said, I consider that to have been a correct decision. Furthermore, there had been no finding in the prior proceedings as to the voluntariness of the petition. The Board felt that it could not import its findings in the earlier proceeding to the procedure then under consideration. Counsel for the Union submitted that the Association had chosen to apply for certification and that it could have, in addition, filed a new petition in opposition or have had the petition in the first proceeding transferred to the second proceeding. I am not sufficiently familiar with the practice of the Board to know if the latter action could have been taken, but the submission was not disputed. The Employer had nothing to do with any course of action taken by the Association or by the employees. It had to take the situation as it found it. It was submitted that the existence of the first petition should be taken into account in considering whether the ascertainment of the true wishes of the employees had been frustrated. It was contended that the existence of the petition in the first proceeding, of which the Board was aware, was sufficient to put the Board on inquiry. The Board dealt with this point as follows:

The Board does not agree with counsel that the effect of the applicant filing the instant application following upon dismissal of the prior one frustrates the determination of the true wishes of the employees. The membership evidence filed by the applicant is evidence which supports an inference that the employees who applied for membership in the applicant wished at that time to have the applicant represent them in a collecive bargaining with the respondent. Absent any evidence which rebuts that inference or raises a doubt that, at the terminal date of the application, the employees still wished to have the applicant represent them, the Board will act upon the evidence. The Board will certify the applicant without a representation vote if it is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the applicant. The Board will direct that a representation vote be taken if not less than forty-five per cent and not more than fifty-five per cent of the employees in the bargaining unit are members. If more than fifty per cent of the ballots cast are cast in favour of the union, section 7(3) of the Act mandates the Board to certify the applicant. If less than forty-five per cent of the employees are members of the applicant, the application will be dismissed. No matter which result prevails, the Board will have ascertained the true wishes of a majority of the employees pursuant to the statutory majoritarian standards. It cannot be said in those circumstances that the Board's failure to give account to a document [the petition in the first application] which is not before it is failing in its duty to ascertain the true wishes of the employees with respect to the application. Furthermore, when this application was made, any employees who were opposed to it could have expressed their opposition in writing, by filing a petition or, as they appear to have attempted to do, put their support behind a competing trade union. Since the intervener's application was dismissed for the reasons given above and since there was no other statement in opposition to the application for certification which would raise doubt as to whether the applicant continued to enjoy the support of the employees for whom it has filed membership evidence, that evidence must be accepted as proof of the true wishes of the employees who are members of the applicant.

The Board applied its policy in deciding to entertain the application. It decided that the petition was not evidence before it and that it had no evidence to cast doubt on the membership evidence of the Union on the terminal date. Under the Board policy, there were no circumstances which would require a refusal to entertain the application. I am unable to say that the decision was patently unreasonable. As the Employer had a full opportunity to argue the issue before the Board, there was no denial of natural justice.

Composition of Bargaining Unit

The Board was required to ascertain the employees in the bargaining unit. The Employer attacks the Board's finding because two employees were not included. They were not at work on the date of the application. One was on vacation and the other was away due to illness.

Employment in the construction industry is of a transient nature. The Board has adopted a policy of determining the bargaining unit in that industry by ascertaining those employees who are at work on the date of the application. Different methods are used in different industries. Once again, the policy may appear to be draconian but it has been instituted because of the transient nature of the industry and the need to have a certain method in order to avoid protracted disputes. The method has been in place for a number of years and is well recognized. For example, it is known that bad weather or lay-offs may have a significant effect on an application by a union. The determination of the members of the bargaining unit was within the jurisdiction of the Board and I am unable to say that the application of its policy to the situation of the Employer was patently unreasonable.

As a result, I am not persuaded that the court should intervene in any of the decisions made by the Board in the course of certifying the Union. Both applications are dismissed with costs to the Union payable by the applicants. Counsel for the Board did not ask for costs.

SAUNDERS J.

SUTHERLAND J.:-- I agree.

EWASCHUK J. (dissenting):-- These applications for judicial review of a decision by the Ontario Labour Relations Board (the "Board") to certify the respondent union raise two basic issues. The first issue is whether the Board erred in law in a patently unreasonable manner in construing s. 1(1)(l) of the Labour Relations Act R.S.O. 1980 c. 228 (the "Act"), which defines "membership" in a union, and in construing s. 73 of R.R.O. 1980, Reg. 546 (the "Regulation" or the "Rules of Procedure"), which outlines the form of proof permissible to establish membership in a union.

The second issue is whether the Board lost jurisdiction by breaching the doctrine of natural justice when it denied the applicants the right to participate in the second application for certification made by the respondent union.

FACTUAL BACKGROUND

Colautti Construction Ltd. is a contractor in the City of Ottawa doing mainly sewer and water main construction. It has approximately 50 workers falling into four categories of employees: labourers, drivers, operators and mechanics.

Until 1984, Colautti was a non-union company. In the spring of 1984, the respondent international union, which is an operating engineers union, began an organizing drive of Colautti employees who fell into the categories of operators and mechanics. It appears that the labourers and drivers were not within the contemplated bargaining unit of the respondent union. Eventually, the organizing drive led, on June 22, 1984, to an application for certification by the respondent union.

Concurrent to the organizing drive by the respondent union, certain Colautti employees began to organize their own trade union of all employees. This local union has been styled the "Employees' Association of Colautti Construction Ltd." (the "Employees' Association").

Subsequent to the respondent union's appLication for certification, the Employees' Association filed in a timely manner a petition in opposition to the application for certification. In addition, the Employees' Association also filed individual statements of various employees to the effect that they did not wish to join the respondent union.

On July 30, 1984, the Board convened to hear the application for certification. It soon became evident that several employees had signed both the applications for membership to join the respondent union and the petition in opposition to the respondent union. Because of these overlapping employees, the Board decided to appoint a board officer to inquire into and report on the true state of affairs of Colautti's employees.

The respondent union, on September 4, 1984, then applied to withdraw its application for certification, assumedly on the realization that it did not have the support of 55 per cent of the employees in the proposed bargaining unit. Concurrent to its application to withdraw, the respondent union filed a new application for certification. On September 5, 1984, the Board granted leave to the respondent union to withdraw its first application.

The Employees' Association had, in the interim, held various organizing meetings. In response to the respondent union's second application for certification, the Employees' Association filed its own application for certification together with written materials as to membership.

On November 15, 1984, the Board began its hearing into the concurrent applications for certification. At the start of the hearing, the Board announced that the membership evidence filed by the Employees' Association did not meet the requirements of both s. 1(1)(l) of the Act, and s. 73 of the Regulation. The Board decided that the membership forms appeared to be receipts and not membership cards.

At the hearing, counsel for the Employees' Association stated that a clerical error had been made in filing the wrong portion of the membership cards. He then asked leave to file a blank form showing both parts of the membership card and further asked leave to adduce oral evidence of a witness who was present when the membership cards were filled in. This witness apparently had the other part of his membership card with him.

The Board refused to allow the Employees' Association to call oral evidence and ruled that the Association had no status before the Board since it had not filed proper evidence as to membership. Consequently, counsel for the Association was forced to retire from the hearing.

The Board continued hearing the application of the respondent union. Although the Board's Chairman was the same chairman who had heard the first application for certification which was later withdrawn, the Board decided that it could not consider the fact the Employees' Association had filed a petition of opposition against the respondent union. The Board, of course, also decided that it could not consider the membership documentation filed by the Association. The only evidence then left with the Board was that of the respondent union. As a result, the Board, on October 29, 1985, rendered its decision granting certification to the respondent union without the necessity of holding a representation vote.

LEGAL ISSUES

(1) Misconstruction of the Statute and the Regulation

In the instant case, the Board was compelled to construe both s. 1(1)(l) of the Act, and s. 73 of the Regulation. In determining whether the Board erred in its construction of these provisions, a court must defer to the construction placed upon the provisions by the Board, especially since the Board was construing its constituent statute and regulations. As a result of the need for curial deference to a specialized tribunal, a court can only reverse a specialized tribunal, such as the Board, if it is has construed its own statute or regulation in a patently unreasonable or absurd manner.

In this case, I conclude that the Board has construed s. 1(1) (l) of the Act in a patently unreasonable or absurd manner. Section 1(1)(l) provides:

1(1)(l) "member, when used with reference to a trade union includes a person who, (i) has applied for membership in the trade union, and (ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union, and membership has a corresponding meaning". (emphasis added)

A careful review of the Board's reasons indicates that the Board construed s. 1(1)(l) of the Act as requiring two mandatory elements of proof to establish membership in a union: (1) an application for membership, and (2) payment of $1 for initiation fees or monthly dues of the trade union. In that regard, the Board, at p. 6 of its reasons, states:

When section 1(1)(l) and subsections (1) and (2) of section 73 of the Rules of Procedure are read together, they make it clear, that the Board must have written evidence of two acts by persons who are claimed to be members of the trade union in question. First, the board must have written evidence that the persons have applied to become members of the trade union. Second, the Board must have written evidence that the persons have paid at least one dollar on their own behalf in respect of initiation fees or monthly dues of the trade union.

This statement by the Board is patently wrong. Neither s. 1(1)(l) of the Act or s. 73 of the Regulation straightjackets what evidence is capable of establishing proof of membership in a trade union. Instead, s. 1(1)(l) of the Act uses the expansive verb "includes" and not the limiting verb "means" in affording a partial definition of membership in a trade union. It is patently unreasonable to construe s. 1(1)(l) as requiring a fixed form of proof as to membership in a trade union. "Includes" does not mean "means" and it was absurd for the Board to have so read s. 1(1)(l).

Nor does s. 73 of the Regulation restrict the form of proof as to membership in a trade union. Of course, a mere regulation could not, in any event, restrict the plain wording of an Act. However, a reasonable reading of s. 73 indicates that it does not restrict proof of membership in a trade union. Instead, s. 73 simply requires that proof of membership must be in writing and signed by the employee which requirement is authorized by s. 103(2) of the Act. Indeed, s. 73 even provides for the admission of oral evidence to identify and substantiate the written evidence of proof of membership in a trade union.

It should be noted that s. 103(2)(j) of the Act provides that the Board has the power to determine the "form" in which and the time at which evidence of membership in a trade union must be presented to it. "Form" relates to such matters as written or oral evidence, sworn or unsworn evidence, certified or uncertified evidence, witnessed or unwitnessed evidence but not the substantive content of the evidence. Section 102(13), in contrast to s. 103(2)(j), requires that the Board give full opportunity to the parties to any proceedings to present their evidence. That section provides:

From this it is clear that the hearing of evidence is mandatory while the making of rules regarding practice and procedure is permissive. In my view, any interpretive conflict between s. 102(13) of the Act and s. 73 of the Rules of procedure must be resolved in favour of s. 102(13).

Further reference is made to s. 103(2)(c) of the Act, which provides:

103.--(1) The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

. . .

(c) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not ...

This provision may well temper any interpretation of Rule 73 as well as any interpretation of s. 1(1)(l) of the Act. Obviously, the Board is generally entitled as a tribunal and not as a court to accept evidence otherwise strictly inadmissible in a court of law. Thus, the Board has more flexibility in receiving evidence than has a court so as to better discharge its statutory duties.

Finally, it should be noted that neither the Act nor the Regulation provides a statutory form of proof of membership in a trade union. The lack of a fixed statutory form further supports the conclusion that s. 1(1)(l) of the Act and s. 73 of the Regulation do not require an exclusive manner of proving membership in a trade union. Instead, membership in a trade union can be proved in a written fashion that reasonably leads to the probable conclusion that the employee in issue belongs to the trade union. A membership receipt can prove membership just as easily as an application for membership and payment of $1.

(2) Doctrine of Natural Justice

It is readily accepted by all parties that a denial of natural justice by the Board will result in loss of jurisdiction requiring the quashing of its decision to certify the respondent union. Thus, the question to be answered is whether the Board here lost jurisdiction in refusing the Employees' Association standing to challenge the application for certification by the respondent union.

It is quite apparent that the question of standing is necessarily related to the Board's earlier error in misconstruing the effect of s. 1(1)(l) of the Act and s. 73 of the Regulation.

Here, the written material filed with the Board by the Employees' Association prior to the terminal date clearly constituted some evidence of membership in a trade union other than the respondent union by those employees signing the membership cards (see the Appendix for a certified copy of the membership card). Obviously, the Board was struck by the difference between the cards before it and the written material it usually reviews. However, proof is not immutable and can take any form permitting of justifiable inference. The Board was not entitled to react in a mechanical fashion and demand the black-white proof it was accustomed to. Instead, the Board was required to use whatever reasoning powers it possessed to determine whether the materials constituted some evidence of membership in the Employees' Association.

The written cards filed with the Board were dated a short time prior to the terminal date. The cards were signed by employees styled as members of the Employees' Association. These facts, in themselves, constituted some evidence that the signatories were members in an organization opposed to that of the respondent union. Furthermore, the Board itself, at p. 3 of its reasons, found that the signed materials indicated "receipts for an amount of $1.00, presumably paid on account of membership dues or initiation fees". Even on the Board's erroneous view that s. 1(1)(l) of the Act required proof of payment for membership dues or initiation fees, the written materials provided some evidence of that fact. If the Board was of the opinion that the written materials were ambiguous on this point, it was under a duty to permit the Employees' Association to call oral evidence, as permitted by s. 73(2) of the Regulation (to "substantiate" the materials), and as required by s. 102(13) of the Act.

The Board totally misconceived its statutory obligation, under s. 7 of the Act, to determine actual membership of the employees in the proposed bargaining unit. Here, there was evidence that the total membership in each proposed union involved overlapping of membership on the part of some employees. The Board was thus under a statutory duty to ascertain the true wishes of the employees.

The Board ignored the fact that even s. 7(2) of the Act does not require automatic certification of an applicant union where more than 55 per cent of the employees in the proposed bargaining unit are members of the union. Instead, the Board, even in that case, may direct that a representation vote be taken. Here, the common chairman was aware that a petition in opposition had previously been filed and that a clerical error had been made in filing the supposedly wrong materials. Both these facts, together with the evidence of overlapping membership, clearly required the Board to direct the holding of a representation vote - a very democratic practice - to determine the employees' actual membership in either the respondent union or in the Employees' Association. If the written materials raise a doubt as to membership, the Board as a matter of routine practice directs the holding of a representation vote: United Steelworkers of America v. Baltimore Aircoil Interamerican Corporation, [1982] O.L.R.B. Rep. 1387 at 1404. In the instant case, the facts indicated an abundance of real doubt and cried out for a representation vote. Yet the Board unjustifiably departed from its sensible and equitable practice followed in other cases.

Here, the Board's decision to deny standing to the Employees' Association constituted a denial of natural justice in view of the Board's duty under s. 102(13) of the Act to give the parties a full opportunity to be heard: see Re Fisher et al. and Hotels, Clubs, Restaurants Tavern Employees' Union, Local 261 et al. (1980), 28 O.R. (2d) 462, 110 D.L.R. (3d) 393 (Div. Ct.). The Employees' Association in the present case had filed a prior petition of opposition and had filed timely written materials constituting some evidence of membership in the Association. Thus, the Board was required to consider these facts and to hear submissions as to whether there was doubt as to actual membership by some employees in the respondent union. By denying the Employees' Association a full opportunity to be heard on these issues, the Board breached the rules of natural justice and lost jurisdiction.

As stated at the outset, the principle of curial deference to administrative bodies is well-accepted. Deference surely encompasses respect for evidentiary assessment, but that assessment and the resulting deference must be based on a reasonable review of relevant and probative factors. However, the Board here failed to make any evidentiary assessment whatsoever of the submitted written materials as it was legally required to do. Thus there is no decision to which curial deference is owed.

Conclusion

In the result, I would allow the applications and quash the Board's decision to certify the respondent union.

EWASCHUK J.

APPENDIX

EMPLOYEES ASSOCIATION OF COLAUTTI CONSTRUCTION LTD. (E.A.C.C.L.)

Name: ["name and Date: July 24/84 Address: address omitted"]* Amount Received: $1.00

E.A.C.C.L. [signature omitted]* Per: [illegible signature] ---------------------- --------------------- Member's signature

CERTIFIED TO BE A TRUE COPY OF THE MEMBERSHIP CARD OF [name omitted]*, dated this 19th day of September, 1984.

BLANEY, PASTERNAK, SMELA & WATSON

Per: J.M. Huston

*omitted pursuant to s. 111(1) of the Labour Relations Act