Fish, Food v. Allied, 2019 NLSC 9

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Fish, Food and Allied Workers-Unifor v. Federation of Independent Sea Harvesters of Newfoundland and Labrador , 2019 NLSC 9 Date : January 23, 2019 Docket : 201801G1253 Between: Fish, Food and Allied Workers-Unifor Applicant And: Federation of Independent Sea Harvesters of Newfoundland and Labrador First Respondent And: Association of Seafood Producers AND ALL FISH BUYERS Second Respondent And: Labour Relations Board Third Respondent Before: Justice Donald H.

Burrage On Judicial Review From: A Decision of the Labour Relations Board, File [2018] L.R.B.D. No. 2 dated the 19 th day of January 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 21, 2018

Appearances: Thomas J. Johnson, Q.C. Appearing on behalf of the Applicant Kyle R. Rees Jeremy D. Loeb Appearing on behalf of the First Respondent No appearance On behalf of the Second Respondent Megan S. Reynolds Appearing on behalf of the Third Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick , 2008 SCC 9 ; Newfoundland & Labrador (Treasury Board) v. N.L.N.U. , 2006 NLTD 124 ; Burke v. N.A.P.E., 2008 NLTD 199 ; Canada (Minister of Citizenship and Immigration) v. Khosa , 2009 SCC 12 ; University of St. Michael’s College v. UTFA , 2011 CarswellOnt 17325 , [2011] O.L.R.D.

No. 872 ; Newlab Clinical Research Inc. v. N.A.P.E. , 2004 NLSCTD 61 ; Niagara Peninsula Beverage & Hotel Employees Union v. U.A.W., Local 199 Building Corp. , 1977 CarswellOnt 908 , [1977] O.L.R.B. Rep 472 ; White et al v. Canadian Union of Shinglers & Allied Workers , 1996 CarswellOnt 4175 , [1996] O.L.R.B. Rep. 215 ; Euclid-Hitachi Employees Assn. v. Euclid-Hitachi Heavy Equipment Ltd. , 1994 CarswellOnt 1545 , [1994] O.L.R.B. Rep. 1514 STATUTES CONSIDERED: Fishing Industry Collective Bargaining Act , R.S.N.L. 1990 c. F-18 ; Labour Relations Act , R.S.N.L. 1990, c.

L-1 ; Labour Relations Act , 1995, S.O. 1995, c. 1 ; Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT BURRAGE, J.: introduction [ 1 ] This is an application by Fish, Food and Allied Workers-Unifor (FFAW) for judicial review of a decision of the Labour Relations Board (the “Board”), dated 19 January 2018, wherein a majority [1] of the Board concluded that the Respondent, the Federation of Independent Sea Harvesters of Newfoundland and Labrador (FISH-NL) is a properly constituted “association”, as defined in section 2(1) (

a) of the Fishing Industry Collective Bargaining Act , R.S.N.L. 1990 c. F-18 (the “ Act ”). At issue is whether the Board’s decision was reasonable. [ 2 ] While named as the Second Respondent, the Association of Seafood Producers (ASP) did not take a position on the application. Nor did the Third Respondent, the Labour Relations Board. Its role was to provide clarification of the record, as necessary. BACKGROUND [ 3 ] The FFAW is an “association” within the meaning of the Act .

It is certified by the Board as the bargaining agent of fish harvesters in the province, excluding the communities north of Makkovik. [ 4 ] The ASP is a processor’s organization within the meaning of the Act . [ 5 ] The FFAW and ASP are signatories to a Master Collective Agreement, signed on 30 January 2015, in which the FFAW is

recognized as the sole and exclusive bargaining agent of fish harvesters in the province, excluding communities north of Makkovik. [ 6 ] On 30 December 2016, FISH-NL filed an Application for Certification with the Board, along with supporting documents, seeking to certify “[a] all commercial inshore fish harvesters in the Province of Newfoundland and Labrador, excluding communities north of Makkovik.” In this application FISH-NL thus sought to displace the FFAW as bargaining agent, commonly referred to in labour relations as a displacement application. [ 7 ] In its Application for Certification, FISH-NL claimed to have 2,372 card carrying members, comprised exclusively of inshore fish harvesters in Newfoundland and Labrador. [2] [ 8 ] On 19 January 2017, the FFAW filed a preliminary objection with the Board to the Application for Certification.

The objection was brought pursuant to

section 48 of the Act . The relevant portions of this

section read, as follows: 48.

(1) An association, a processor or processors' organization may apply to the board for a determination of a matter referred to in subsection (1.1).

(1.1) Where (

a) in a proceeding before the board under this Act a question arises as to; or (

b) on the application of an association , processor or processor's organization to the board or a referral by the minister to the board to determine whether , … (

d) an organization or association is a processors' organization or an association ; [emphasis added] [ 9 ] The FFAW argued that FISH-NL was not an “association”, as defined by the Act , and therefore had no standing to bring its Application for Certification. [ 10 ] An “association” is defined in section 2(1) (

a) of the Act , as follows: 2. (1) (a) "association" means a local or provincial organization or association of fishers, or a local or provincial branch of a national or international organization or association of fishers within the province or a council of associations that has as one of its purposes the regulation in the province of relations between processors and fishers through collective bargaining , whether or not that organization or association also contains other persons who are employees as defined by the Labour Relations Act , but does not include an organization or association of fishers or a council of associations that is dominated or influenced by a processor; [emphasis added] [ 11 ] The Board determined that the term “association” under the Act can be used interchangeably with the term “union” under the Labour Relations Act , R.S.N.L. 1990, c.

L-1 ( LRA ), when considering jurisprudence relevant to the FFAW objection. Pursuant to section 2(1)(

w) of the LRA a trade union, or union, has as one of its purposes … “the regulation in the province of relations between employers and employees through collective bargaining…”. Neither the parties, nor this Court, take any issue with this determination. [ 12 ] The matter was heard on 9 February 2017. On 21 February 2017 a majority of the Board rejected the preliminary objection and concluded that FISH-NL is an “association”, as defined by section 2(1) (

a) of the Act . the evidence [ 13 ] The relevant evidence underpinning the Board’s decision may be summarized, as follows. [ 14 ] The FISH-NL office is located at 5 Job Street, St. John’s, NL. It is a local organization within the meaning of section 2(1) (

a) of the Act . [3] [ 15 ] The founding convention for FISH-NL was held at the Albatross Hotel, Gander, NL on 27 October 2016. It was attended by approximately 104 fish harvesters. [ 16 ] Those who attended paid a $20 attendance fee to help defray the cost of the convention. This was not a membership fee for joining FISH-NL. The attendees were required to complete a registration card with their name, mailing address, employer and professional fish harvester number.

Attendees were given a name tag and those identified as fishers had their name tags stamped with a distinct stamp that said “FISH-NL”. [ 17 ] Only those identified as fishers were permitted to nominate candidates to the FISH-NL executive, vote on the election of officers, or participate in the adoption of the FISH-NL Constitution and membership card.

[ 18 ] Those who attended the convention voted to approve the FISH-NL Constitution.

Article 2 of that Constitution states the Purposes and Objectives of FISH-NL, as follows:

Article 2. PURPOSES AND OBJECTIVES 2.01 FISH-NL has as its purposes and objectives: (

a) the advancement of the social, economic and general welfare of its members; (

b) the improvement of income, betterment of working conditions and overall employment conditions of members; (

c) the continued professionalization of the Newfoundland and Labrador fishing industry for the long-term benefit of its members. [4] [ 19 ]

Article 3(

c) of the Constitution, under Statement of Principles, provides: (

c) Harvesters: FISH-NL is a harvesters’ organization and does not represent individuals or corporations in any way related to the fishery, except for harvesting. [5] [ 20 ] The Constitution of FISH-NL does not specifically state that one of its purposes is “the regulation in the province of relations between processors and fishers though collective bargaining”, the language used in the definition of an association under the Act . [ 21 ]

Article 5 to the Constitution provides that the executive board “shall be elected at the founding meeting and every second Annual General Meeting thereafter.”

Article 5.02 provides that elections shall be held by secret ballot, “one member one vote.” [ 22 ] At the convention, five individuals were elected to the FISH-NL executive, three of whom are professional fish harvesters: Boyd Lavers, Richard Gillett and Jason Sullivan. [ 23 ] Minutes were taken at the convention by Jason Sullivan, who confirmed their accuracy. These minutes, recorded, inter alia , the following: The meeting was called to order at 11:03 am by the Chair. Jim Bennett introduced himself and explained his background and credentials.

He then proceeded to explain the procedure of forming a new association, the Federation of Independent Sea Harvesters of Newfoundland and Labrador (FISH-NL) to represent fish harvesters and the process of submitting an application to the labor board in order to become the certified bargaining agent for the fish harvesters of Newfoundland and Labrador. A motion was moved by Jason Sullivan and seconded by Johanna Ryan-Guy to adopt the agenda. The motion was unanimously carried.

Ryan Cleary takes the podium to provide a overview of how the movement towards new representation for fish harvesters was initiated and outline the support that was displayed at the two provincial rallies. The Chair then calls on Merv Wiseman to begin the process of the Election of Officers. [ 24 ] It was the uncontradicted evidence of Jason Sullivan that the purpose of FISH-NL was to negotiate better prices with processors in the province and that FISH-NL hoped to represent all inshore harvesters. According to Mr.

Sullivan, there was no confusion as to the purpose of FISH-NL and that all in attendance knew, from information in the press and from general information in the community, that the purpose of the meeting was to form a new union of fish harvesters [6] [ 25 ] Mr. Sullivan testified that “improvement of income”, as it appears in the Constitution, can be obtained through better negotiation of fish prices. [ 26 ] Those who attended the founding convention unanimously voted to accept the wording of the proposed FISH-NL membership card.

This card contains the following language: I hereby request and accept membership in the Federation of Independent Sea Harvesters of Newfoundland and Labrador (FISH-NL). I authorize FISH-NL to use this card for the purpose of an application to the Labour Relations Board to represent me. [7]

[ 27 ] However, nobody became a member of FISH-NL at the founding convention. Blank membership cards were distributed to fishers after the convention was concluded for execution by fish harvesters after 1 November 2016. The number of cards and harvester’s name was recorded, so that the cards could be tracked. [ 28 ] The delay in signing members was deliberate. The Collective Agreement between the FFAW and the ASP expired in January 2017.

By waiting until the “open period” in the FFAW Collective Agreement, FISH-NL hoped to maximize its membership numbers. [ 29 ] Membership cards were signed between 2 November 2016 and 30 December 2016, the date when the FISH-NL certification application was filed with the Board. As such, none of those who attended the 24 October 2016 convention of FISH-NL, and voted at this convention, were members of FISH-NL at the time. [ 30 ] Mr. Ron Woodman worked as an organizer with FISH-NL from 24 October 2016 to 30 December 2016. He is an experienced political organizer and helped plan the founding convention for FISH-NL.

Following the convention he attended two meetings in Labrador and 10 - 16 meetings on the island, recruiting members and collecting membership cards in FISH-NL. [ 31 ] Mr. Woodman testified that he was certain that some individuals who were present at the founding meeting eventually became members of FISH-NL. However, he was either unable or unwilling to name them. He agreed that some of those who voted at the founding convention may not have become members of FISH-NL. [ 32 ] There was no evidence of a meeting of members after the founding convention of FISH-NL, to ratify those decisions taken at the convention.

The Standard of Review [ 33 ] The parties are in agreement that the standard of review to be applied to the decision of the Board, where in this case the Board is asked to interpret legislation falling within its bailiwick, is that of reasonableness (see Dunsmuir v. New Brunswick , 2008 SCC 9 ; Newfoundland & Labrador (Treasury Board) v. N.L.N.U. , 2006 NLTD 124 ; Burke v. N.A.P.E., 2008 NLTD 199 ). [ 34 ] The parameters of the reasonableness standard are discussed in Dunsmuir (at para. 47 ): 47.

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 35 ] In a similar sentiment we have the following guidance from the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Khosa , 2009 SCC 12 (at para. 59 ): 59. Reasonableness is a single standard that takes its colour from the context.

One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" ( Dunsmuir , at para. 47 ). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [ 36 ] I agree that reasonableness is the appropriate yardstick against which to measure the decision of the Board in this instance.

Does the Board’s determination that FISH-NL is an “association” within the meaning of the Act , fall within the range of possible, acceptable outcomes available to it? analysis and DISPOSITION [ 37 ] The FFAW submits that the Board’s decision that FISH-NL is an association was not reasonable, in that it unreasonably strayed from the definition of “association” in the Act . [ 38 ] There are two main prongs to its argument.

That the Constitution of FISH-NL does not state as one of its purposes the regulation in the province of relations between processors and fishers through collective bargaining, and, in any event, there was insufficient extra-constitutional evidence to support such a purpose. Second, that irregularities in the formation of FISH-NL are fatal to its existence. In particular, as it had no members at the founding convention it could not come into being as an entity.

Further, there is no evidence that those at the convention eventually became members of FISH-NL, and in any event, no action was taken by members to ratify those decisions taken at the convention. [ 39 ] For its part, FISH-NL submits that the FFAW’s argument is premised on a technicality and that the Board was reasonable when it adopted a purposive view of the definition of “association”, having regard to the rationale for the Act .

The FISH-NL Constitution [ 40 ] The FFAW argues that the Board committed a reviewable error when it inferred that one of the purposes of FISH-NL was the regulation in the province of relations between processors and fishers through collective bargaining, when this purpose was not set forth in the FISH-NL Constitution. The FFAW submits that FISH-NL’s stated purposes are more akin to a professional lobbying group. In the alternative, the FFAW argues that the Board’s conclusion cannot be substantiated, based on the evidentiary record before it.

[ 41 ] The FFAW emphasizes the importance of the Constitution as a public document, to advise members, potential members and others, as to the purposes of the association. It submits that a Constitution is not a mere formality, but a public declaration of the organization’s intentions and goals. It is a means by which potential members are put on notice and informs their decision on whether or not to join.

According to the FFAW such a clear statement of purpose is particularly important in cases of “raiding”, such as this, where the newly formed organization wishes to displace an existing bargaining agent. [ 42 ] In the alternative, the FFAW argues that the Board could not rely on extra-constitutional statements of purpose, as there is no evidence that “members” of FISH-NL were aware of these statements. The FFAW observes that there is no evidence regarding who, of those in attendance at the founding convention, subsequently became members.

Further, according to the FFAW the Board could not rely on publicity and media reporting to determine FISH-NL’s purpose, when such reporting was not placed in evidence. [ 43 ] In University of St. Michael’s College v. UTFA , 2011 CarswellOnt 17325, [2011] O.L.R.D. No. 872 , the UTFA applied for certification under the Labour Relations Act , 1995, S.O. 1995, c. 1 . At issue was the status of the UTFA as a trade union, defined as an “organization of employees formed for purposes that include the regulation of relations between employees and employers.” [ 44 ] St.

Michael’s College argued, in part, that the UTFA did not meet the definition of a trade union, as its Constitution did not include such a purpose. [ 45 ] Regarding the absence of the statutory purpose language in the UTFA Constitution, the board concluded (at paras. 11-12): 11.

Equally, I cannot find that the mere absence of the explicit wording "the regulation of relations between employees and employers" from UTFA's constitution is fatal when the constitution does contain the purpose of "promoting the welfare of the current and retired faculty" and there is a long history of UTFA negotiating what replicates a collective agreement for its members. Equally significantly, St.

Michael's College did not point to a single Board case where such a disparity in the language concerning the purpose of the organization was of such significance that the applicant could not prove its trade union status . 12. Given the long history of UTFA, the fact that it is a viable organization with a constitution, regularly elected officers with regularly scheduled meetings, and has negotiated several MOAs with U of T dealing with terms and conditions of employment, I find that UTFA is a trade union within the meaning of the Act .

As noted previously, the parties have a Labour Relations Officer's meeting and a further hearing scheduled to deal with the outstanding status disputes and the final description of the bargaining unit in the event that they are unable to resolve those differences. [emphasis added] [ 46 ] The FFAW observes that, unlike FISH-NL, which is a fledging organization, the UTFA had a long history of negotiating for its members.

It was this history which permitted the board in that case to conclude that the UTFA is a trade union. [ 47 ] In the present case, in reaching its decision the Board was alive to the fact that, unlike the FFAW Constitution, the FISH-NL Constitution did not specifically state that one of its purposes was regulation in the province of relations between processors and fishers through collective bargaining. [ 48 ] However, when considered in the context of the totality of the evidence before it, the Board concluded that not having the purpose specifically stated in its Constitution was not fatal to a finding that FISH-NL was an “association” under the Act : 103.

The board recognizes the undisputed evidence of Mr . Sullivan and the minutes of the founding meeting of FISH-NL, which stated as follows: The meeting was called to order at 11:03 am by the Chair. Jim Bennett introduced himself and explained his background and credentials.

He then proceeded to explain the procedure of forming a new association, the Federation of Independent Sea Harvesters of Newfoundland and Labrador (FISH-NL) to represent fish harvesters and the process of submitting an application to the labor board in order to become the certified bargaining agent for the fish harvesters of Newfoundland and Labrador. 104.

The purpose of the founding meeting was clear to all who attended: it was to form a new association, FISH-NL, to represent fish harvesters and to explain to those in attendance the process of submitting an application to the labour relations board for FISH-NL to become certified as a bargaining agent for fish harvesters of Newfoundland and Labrador. 105.

The majority of the panel was satisfied that this was sufficient for the purposes of this application for certification to satisfy the board that there was no doubt in the mind of those who attended the founding meeting and those who subsequently became members of the association that the purpose of the group was to regulate through collective bargaining the relations between processers and fishers in the province of Newfoundland and Labrador. 106.

The majority of the panel took note of the publicity - on radio, television and internet - that it was generally common knowledge in the province at all times material to the founding meeting that the purpose of FISH-NL was to take on or "raid" FFAW and become

the bargaining agent for inshore fish harvesters in the Province. While a specific statement in the FISH-NL constitution, similar to the one in the FFAW's constitution, would have been preferable to ensure clarity to anyone who enquired, nevertheless the majority of the Board was satisfied that there was no confusion and that the main purpose of FISH-NL's existence had been reflected in the minutes of the founding meeting.

Not having the purpose stated in the constitution was not fatal to finding that FISH-NL was an "association" under FICBA when the panel considered the constitution as a piece of the totality of the evidence, namely the minutes of the founding meeting (which showed that the purpose of the association was discussed at the meeting) and the general knowledge in the community of why the meeting was taking place. [ 49 ] The foregoing approach is consistent with that in St. Michael’s College , in which the board concluded that the absence of express wording as to purpose in the constitution of the UTFA was not fatal.

While the evidence in each case may vary, this case supports the proposition that evidence other than the Constitutional language may be relevant in discerning purpose. [ 50 ] In reliance on Newlab Clinical Research Inc. v. N.A.P.E. , 2004 NLSCTD 61 the FFAW argues that it would be unreasonable for the Board to disregard statutory requirements. In Newlab the Court concluded that the Board’s decision to sidestep strict adherence to the signing authority provisions under s. 135 of the Labour Relations Act was patently unreasonable (the pre Dunsmuir standard). The Court concluded that the requirements of

section 135 were mandatory and in the case of subparagraph 135 (

d) were “unusually specific”, in that it identified the manner in which authorization must be given, “by resolution passed at a meeting of the trade union.” As this requirement had not been met, the Board’s decision was set aside. [ 51 ] The FFAW argues that Newlab is instructive for two reasons; a party cannot opt out of specific legislative requirements through extra-legislative actions; and where the requirements have been established by the legislative, they cannot be ignored or interpreted out of existence through a so-called “pragmatic approach”. [ 52 ] No quarrel can be taken with the outcome in Newlab . However, the specific requirements of

section 135 , above, stand in stark contrast to the legislative definition of an “association”. In the Act, the requirement necessary to form an “association” is clear enough, namely that it have as one of its purposes the regulation of relations between processors and fishers through collective bargaining. The legislation is silent, however, on how this requirement is to be met. Unlike

section 135, above, which is very prescriptive, the Act is silent on the criteria to be used by the Board in deciding whether the definition of association has been met in a given case. Greater latitude is thus afforded to the Board deciding this question. [ 53 ] The definition of “association” in the Act does not state that the purpose must be set forth expressly in the organization’s Constitution. While the Board concluded that this would have been preferred, I am satisfied that it was open to the Board to discern the purpose of FISH-NL from the totality of the evidence before it.

The Board took this approach and there was ample evidence in support of its conclusion. There was also evidence to support the conclusion that some of those who attended the founding convention became members of FISH-NL. In any event, those who became members knew from the language of the membership card that FISH-NL’s purpose was to engage in collective bargaining on their behalf. [ 54 ] In particular, the Board had before it: • the undisputed evidence of Mr.

Sullivan that the purpose of FISH-NL, to form a new association to represent fish harvesters, was explained to those in attendance at the founding convention; • the foregoing purpose is reflected in the minutes of the founding convention; • Mr.

Woodman, who worked as an organizer for FISH-NL was certain that some individuals who were present at the founding convention eventually became members of FISH-NL. • the language of the membership card as adopted at the founding convention expressly authorized FISH-NL to represent the member “for the purpose of an application to the Labour Relations Board.” By signing this card, those who became members were thus aware that the purpose of FISH-NL was to seek Certification as bargaining agent on their behalf. [ 55 ] The Board’s decision that FISH-NL was formed for the purpose of regulating relations between processors and fishers through collective bargaining is thus defensible in respect of the facts before it.

The decision was reasonable. The Formation of FISH-NL [ 56 ] The FFAW argues that there was no evidence before the Board to establish that those who attended the founding meeting eventually became members of FISH-NL, or that those who eventually became members ratified the actions taken at the founding convention. As such, the FFAW argues that FISH-NL did not come into existence, as an association, or otherwise. [ 57 ] While it is true that was no evidence of ratification, it will be recalled that Mr.

Woodman was certain, without naming names, that some of those at the founding convention became members of FISH-NL. As the organizer and participant in the membership drive, he was in a position to know. [ 58 ] In any event, the FFAW argues that the Board acted unreasonably in its failure to adhere to the five-step test for the formation of FISH-NL, after explicitly adopting this test in its decision (paragraph 100): 100.

The panel unanimously agreed that the jurisprudence supports the application of the 5-step test for showing that a union or association is a viable entity under the Labour Relations Act or FICBA , as adopted by this board in Commissionaires and that this method is the preferred method to create a trade union (under the LRA ) or association of fishers (under FICBA).

The panel also unanimously recognized the line of jurisprudence that does not require strict adherence to the specific order in which the five steps are taken, as long as those steps are taken contemporaneously or otherwise ratified thereafter by the membership of the organization …

[ 59 ] The five steps as identified in the jurisprudence are, as follows: 1. A Constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour of labour relations) and the procedures for electing officers and calling meetings; 2. The Constitution should be place before a meeting of employees for approval; 3. The employees attending such meeting should be admitted to membership; 4. The Constitution should be adopted or ratified by the vote of said members; 5.

The Officers should be elected pursuant to the Constitution, [ 60 ] The FFAW argues that FISH-NL failed to comply with steps one [8] , three, four and five, above, and that the Board acted unreasonably in glossing over these “requirements” in favour of a “pragmatic approach”. [ 61 ] While acknowledging that there is precedent for the proposition that strict compliance with the five-step process is not mandatory, the FFAW argues that the extent of non-compliance is often minimal. By way of example, in Niagara Peninsula Beverage & Hotel Employees Union v.

U.A.W., Local 199 Building Corp. , 1977 CarswellOnt 908 , [1977] O.L.R.B. Rep. 472 the five steps occurred out of order, but at the same meeting. [ 62 ] In response, FISH-NL argues that completion of the five steps, in whatever order, is not a pre-requisite to the creation of an association. Significantly, no such requirement is set forth in the Act .

While the five steps are one way an association (or trade union) may be formed, there is no single procedure that must be followed. [ 63 ] FISH-NL argues that the date of its Application for Certification, 30 December 2016, is the material date with regard to its status as an association. On that date, FISH-NL filed a Statutory Declaration, confirming that it had 2,372 members, all of whom were self-employed fishers residing in the province.

The membership card signed by these members authorized FISH-NL to use the card for the purpose of an application to the Board to represent the member. [ 64 ] In support of its argument, FISH-NL refers to White et al v. Canadian Union of Shinglers & Allied Workers , 1996 CarswellOnt 4175 , [1996] O.L.R.B. Rep. 215 (at paragraphs 42 and 68 ): 42. There are two characteristics which are fundamental to the existence of a trade union, and which reflect the fundamental elements of the Labour Relations Act . First and foremost, a trade union must be an "organization of employees".

This reflects the fundamental separation in the Act between employers and employees. Second, its purposes must include "the regulation of relations between employers and employees". This reflects the principle of representation and collective bargaining. The issue in this case was whether the CUSAW was an "organization of employees formed for purposes that include the regulation of relations between employees and employers". The evidence in that respect reveals the following. 68. I return now to the founding of the CUSAW.

Notwithstanding the "five step" jurisprudence which establishes one way to form a "trade union" ( Local 199 UAW Building Corporation , [1977] OLRB Rep. July 472; Canteen of Canada Limited , [1978] OLRB Rep. Sept. 802), there is no single procedure which must be followed to create a trade union. All that is required is that two or more "employees" agreed to be bound by an ascertainable constitution for purposes which include the regulation of relations between employees and employers (see, for example, Niagara Veteran Taxi , [1979] OLRB Rep. Sept. 889; Lavalle Tool & Mould Ltd. , [1987] OLRB Rep.

Oct. 1281; Ontario Hydro , [1989] OLRB Rep. Feb. 185). The minimum number of people required to form a trade union is two, regardless of the size of the potential bargaining unit(

s) which the organization may pursue ( Ontario Hospital Association ( Blue Cross ), [1981] OLRB Rep. June 763). [emphasis added] [ 65 ] In St. Michael’s College , as to the so-called five step guideline, the board observed (at para. 8): 8. … Although raised in written submissions, St. Michael's College did not vigorously pursue its "five-step argument" in its oral submissions.

Leaving aside that the so-called "five-step guideline" (as repeatedly noted by the Board) is not a statutory requirement or precondition of trade union status , in view of the long history of UTFA and its involvement in negotiating terms and conditions of employment with U of T, its constitution, its officers, and their repeated election and UTFA's regular meetings in accordance with that constitution and bylaws, such an argument in the face of the clear Board jurisprudence is not sustainable.

There can be no doubt that UTFA is a viable organization capable of carrying out its obligations under the Act . [emphasis added] [ 66 ] FISH-NL further refers to Euclid-Hitachi Employees Assn. v. Euclid-Hitachi Heavy Equipment Ltd. , 1994 CarswellOnt 1545 , [1994] O.L.R.B. Rep. 1514 , where some 39 employees attended a meeting for the purpose of establishing a trade union. Those present voted to adopt a Constitution, which was read aloud at the meeting. They also elected officers of the association. No membership cards were signed at or before the meeting.

However, over the next several weeks all those in attendance signed applications for membership in the association. [ 67 ] In concluding that the association met the requirements of a trade union, the board in Euclid-Hitachi observed that the term

“trade union” is given a broad definition (at para. 26): 26. In keeping with the statutory purpose of ensuring that employees can freely exercise the right to organize by choosing, joining andbeing represented by a trade union of their own choice, and the varying levels of sophistication of those who might seek to exercise thisright, the term "trade union" is given a broad definition. The statute requires only that there be an "organization" of "employees" formedfor certain purposes. It does not specify a procedure by which this is to be accomplished.

Nevertheless, to provide some measure ofguidance to the labour relations community, and to assist employees in exercising their statutory rights, the Board developed theprocedure set out in Local 199 U.A.W. Building Corporation. In the view of the majority of this panel, however, that procedure wasintended to be facilitative rather than restrictive; it was intended to assist employees in achieving the goal of self-organization, rather thanto restrict them in the exercise of that right. [emphasis added] [68] As it relates to the so-called “five step procedure” the board observed (at paras 28 – 30): 28.

As the Board has noted on numerous occasions, the five step procedure set out in Local 199 U.A.W. Building Corporation is notan exhaustive guide to the ways in which a "trade union" may be brought into existence. Over the years, the Board has found many otherprocedures to have been sufficient (see e.g. Caterair, supra and Ontario Hydro, [1989] OLRB Rep. Feb. 185), and it has been cautionednot to go beyond the statutory definition in determining whether an entity qualifies as a "trade union" within the meaning of the Act (seeC.S.A.O. National (Inc.) v.

Oakville Trafalgar Memorial Hospital Association et al, (ON CA), [1972] 2 O.R. 498(C.A.)). 29. Thus, in Ontario Hydro, supra, after noting the status of a trade union as an unincorporated association of individuals boundtogether by contract, the Board stated: ...the only essential prerequisite to the existence of an unincorporated association of individuals is that two or more such individuals haveagreed to be bound by the terms of an identifiable constitution.

We were not referred to any judicial authority for the proposition thatsuch an agreement will not be effective unless the parties to it have employed ratification votes, membership oaths or other formalitieswhich are unnecessary to the formation of other contracts at common law. Nothing in the Labour Relations Act appears to authorize theBoard's insisting on such formalities. The Board cannot go beyond the reasonable meaning of the provisions of the Act in imposing"requirements" in this regard. 30.

In this case, it is clear that a group of employees attended the January 22nd meeting for the purpose of forming a "trade union".Those employees then agreed to a constitution which includes as one of its purposes the regulation of relations between employees andemployers. The employees then elected officers for the purpose of running the association. Later, the same employees signedapplications for membership in the association. The fact that those applications were not completed until a few weeks after the othersteps had been taken is not critical in our view.

We are satisfied that the Euclid-Hitachi Employees Association is a "trade union" withinthe meaning of the Act. [emphasis added] … [69] As noted, in the final analysis the Board concluded that it preferred to take a pragmatic rather than technical approach to theformation of FISH-NL, concluding that it was brought into existence by the will of its membership (paras. 109 - 110). 109.

Based on the above, and because FISH- NL argued that three members of the FISH-NL executive were inshore fishers andtherefore members of FISH-NL, the majority agreed with FISH-NL's argument that there was sufficient evidence before it to show thatFISH-NL was brought into existence by the will of the membership - at the very least by those three members who had become memberof the executive at the founding meeting and who, based on their appearances in public and statements to the press, appeared to bemembers of FISH-NL.

The majority of the board did not wish to take too technical approach to the formation and wanted to ensure amore pragmatic assessment where latitude was given. 110. Further, the majority wished to emphasize that the fact that FISH-NL refused to disclose its membership in evidence at thehearing follows a long-standing practice and policy of the board and other labour relations boards across Canada. This practice is wellknown to the parties to this application.

The panel in this application unanimously accepts this well-known practice and policy of notdisclosing union membership, particularly not to a competing trade union. [70] Did this approach fall within the range of alternatives reasonably available to the Board? I conclude that it did. [71] The five-step procedure is a creature of labour relations jurisprudence and not a creature of statute. It was developed as ameasure of guidance to the labour relations community, a facilitative procedure.

As the board observed in Euclid-Hitachi the process isnot prescriptive and there is nothing in the governing legislation which authorizes it to insist on such a formality. [72] There is nothing in the language of the definition of association, or the Act, to insist on the formality of the so-called five steps. The Board was therefore left to determine on the evidence before it whether or not FISH-NL represented two or more individuals whohad come together for the purpose of regulation in the province of relations between processors and fishers through collectivebargaining.

Without insisting on the formality of the five-step guidelines, the Board concluded, based on the evidence before it thatFISH-NL met this requirement. In my view, it was open to the Board to reach this conclusion. Disposition

[ 73 ] The application of the FFAW is dismissed. As FISH-NL is the successful party, it is entitled to its costs against the FFAW on a party party basis pursuant to Column III of Rule 55. _____________________________ Donald H. Burrage Justice