Millen et al v Hydro Electric Board (Man) Date:, 2016 MBCA 56

Citation: Millen et al v Hydro Electric Board (Man) Date: 20160531 et al, 2016 MBCA 56 Docket: AI15-30-08416 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : BARRY MILLEN, TERRI FORDHAM, ) P. A. Gall, Q.C. , RICK LESIUK, FLOYD STONEHAM, ) C. L. Monnin and MICHEL PAUL PILOTTE and MERIT ) L. J. Wihak CONTRACTORS ASSOCIATION OF ) for the Appellants MANITOBA ) ) J. L. Mayor and (Plaintiffs) Appellants ) O. V. Fernandes ) for the Respondent ) Manitoba Hydro-Electric - and - ) Board ) MANITOBA HYDRO-ELECTRIC BOARD, ) K.

L. Gibson and THE HYDRO PROJECTS MANAGEMENT ) C. J. Frost ASSOCIATION, THE ALLIED HYDRO ) for the Respondent COUNCIL OF MANITOBA, LOCAL ) The Hydro Projects UNION 99 OF THE INTERNATIONAL ) Management Association ASSOCIATION OF HEAT AND FROST ) INSULATORS AND ALLIED WORKERS, ) T. M. Marques and LOCAL UNION 2034 OF THE ) S. L.

Carson INTERNATIONAL BROTHERHOOD OF ) for all other Respondents ELECTRICAL WORKERS and LOCAL ) UNION 987 OF THE INTERNATIONAL ) Appeal heard: UNION OF OPERATING ENGINEERS ) March 16, 2016 ) (Defendants) Respondents ) Judgment delivered: ) May 31, 2016 On appeal from 2015 MBQB 91 , 317 ManR (2d) 276 STEEL JA [ 1 ] This is an appeal from a judgment staying the action of the plaintiffs on the ground that the Manitoba Labour Board (the Board) has exclusive jurisdiction over the subject matter of the action. [ 2 ] The plaintiffs launched a constitutional challenge in the Court of Queen’s Bench to the tendering policy of the Manitoba Hydro-Electric Board (Hydro), which requires bidders on certain Hydro projects to agree to terms which compel the contractor’s employees to obtain membership in, and pay dues to, specific unions designated by the collective agreements.

The plaintiffs take the position that those tender requirements breach the Canadian Charter of Rights and Freedoms (the Charter ). [ 3 ] The motion judge granted the stay, finding that the essence of the action revolved around the

interpretation of certain provisions within the collective agreements in question, and that came within the exclusive jurisdiction of the Board. [ 4 ] I find that she was correct in her

interpretation and application of the law. Facts

[ 5 ] The facts of this matter are largely undisputed.

The motion giving rise to this appeal was brought pursuant to Rule 21.01(3) of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, and was decided on the basis of the pleadings with the facts taken as true. [ 6 ] The facts of the case are succinctly set out in the reasons of the motion judge, which are reproduced as follows (at paras 2-7): The two collective agreements that are the subject of the claim are the Burntwood Nelson Agreement (the “BNA”), which covers all major hydro-electric construction projects in northern Manitoba, and the Manitoba Hydro Contracted Transmission Line Collective Agreement (the “TLA”), which covers the proposed Bipole III project.

That project will create a transmission line spanning 1,300 kilometres from northern Manitoba to southern Manitoba. Both agreements contain clauses which require individuals who work on the projects to join, and pay dues to, one of the unions that is a party to the agreement. Under the BNA, those unions are members of the Allied Hydro Council, which is named as a defendant.

Under the TLA, individuals who work on the Bipole III project will be required to join either the International Brotherhood of Electrical Workers, Local 2034, or the International Union of Operating Engineers, Local 987, which are also named as defendants. The tender documents for the Bipole III project and projects covered by the BNA require contractors to agree to be bound by the TLA or BNA. The plaintiff, Barry Millen, works for Thermo Applications, a non-union contractor that was awarded a sub-contract to work on the Wuskwatim Generation Project. As that project is covered by the BNA, Mr.

Millen was required to join one of the defendant unions, the International Association of Heat and Frost Insulators, Local 99, which he did under protest. The plaintiffs, Terri Fordham, Rick Lesiuk, Floyd Stoneham and Michel Pilotte, work for various contractors that have had contracts to work on Hydro projects in the past and, in the future, will likely bid on projects covered by the BNA or TLA. Fordham, Lesiuk and Stoneham work for non-unionized contractors. They do not want to be compelled to join or pay dues to a union as a condition of working on Hydro projects.

Pilotte is president of the union that is certified as the bargaining agent for the employees of the contractor by whom he is employed. He objects to being compelled, as a condition of employment, to join and pay dues to another union, one which has not been chosen as his bargaining agent. The plaintiff, Merit Contractors, is an organization of non-unionized and open shop construction contractors which advocates for open shop contracting in the construction industry.

The plaintiffs say that the provisions of the collective agreements that create union shops and impose compulsory union dues on employees (“check-off”) infringe s. 2(b) (freedom of expression) and s. 2(d) (freedom of association) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1 of the Charter . They seek a declaration that those provisions, and the corresponding condition in Manitoba Hydro's tender documents that require those awarded contracts to sign on to the collective agreements, are of no force and effect.

The plaintiffs also seek a declaration that s. 76 of the Labour Relations Act , C.C.S.M., c. L- 10 (the “ LRA ”), which provides that all collective agreements must contain a compulsory check- off clause, does not require employees to pay dues to a union that has not been chosen to represent them according to the procedure stipulated by the LRA . Alternatively, they seek a declaration that if s. 76 is read to apply in such circumstances, the

section infringes s. 2(

b) and s. 2(

d) of the Charter . Decision of the Motion Judge [ 7 ] The motion judge found that the plaintiffs’ claim was a challenge to the provisions of the collective agreements and that it implicitly asked questions that fell within the exclusive jurisdiction of the Board under

section 142 of The Labour Relations Act , CCSM c L10 (the Act ). She held that (at paras 47-48): The defendants say that the essential character of the plaintiffs’ claim falls within the exclusive jurisdiction of the Labour Board under subsections (d), (e), (

j) and (

k) of s. 142(5). I agree that the issues raised by the claim implicitly ask whether the plaintiffs are included in the bargaining unit (s. 142(5)(d)); whether the plaintiffs are bound by the collective agreements (s. 142(5)(e)); whether the plaintiffs are required to become members of the unions (s. 142(5)(j)); and whether the impugned provisions of the collective agreements are valid conditions of employment (s. 142(5)(k)). The plaintiffs argue that none of these subsections cover the issue raised by the claim.

For example, they say that the issue raised by the claim is not whether the individual plaintiffs “are bound by the collective agreement” or whether a term of the agreement is a “condition

of employment”. Rather, they say that the essence of the issue in the claim is the constitutional validity of the conditions of employment. In my view, this is a distinction without a difference. If a condition of employment is found to offend the Charter , it cannot be a condition of employment. By asking the court to determine that the provisions of the BNA and TLA contravene the Charter , the plaintiffs are implicitly asking the court to determine that the conditions are not valid conditions of employment or, in other words, that the plaintiffs are not bound by the agreement and are not members of the unions.

Position of the Parties [ 8 ] The plaintiffs argue that this dispute is not a challenge to the provisions of the collective agreements through which the conditions of employment are currently imposed, as found by the motion judge. Rather, it is a challenge to Hydro’s imposition of the tender requirement that successful bidders on Hydro projects must enter into the collective agreements with the designated unions.

It is a challenge to the government policy that underlies the agreements, not a challenge to the agreements themselves. [ 9 ] These tender requirements, it is submitted, breach the Charter protected rights of freedom of association and freedom of expression of the employees of contractors who are interested in bidding on the Hydro projects. As a result of the tender requirements, the plaintiffs argue the contractor’s employees have no freedom to choose their union representative or to choose no union representation at all on Hydro projects.

Union representation and the union representative are imposed on them by Hydro as a condition of working on the projects. [ 10 ] Moreover, it is submitted the motion judge relied on provisions in the Act that give the Board the authority to determine whether someone is a member of a bargaining unit or a member of a union. However, the Board only has jurisdiction to answer these questions in the course of a labour relations proceeding otherwise properly before it and there is no such proceeding before it.

In effect, the plaintiffs say that the dispute raised in the re-amended statement of claim raises a Charter issue that does not have a meaningful connection to a labour relations issue falling within the jurisdiction of the Board. [ 11 ] The defendants argue that the plaintiffs are, in reality, challenging not the tender requirements, but the constitutionality of two provisions within each of the collective agreements in question, namely—one that requires employees to join unions and one that requires them to pay union dues—if they accept work on Hydro projects with contractors who have accepted the tender requirements.

It cannot be only a challenge to the tender requirements because the tender requirements merely necessitate that the contractors, on applicable Hydro projects, enter into one or the other of the two collective agreements.

It is the provisions in the collective agreements that are challenged as being unconstitutional. [ 12 ] As further evidence of the true nature of this dispute, the defendants point out that the plaintiffs chose to sue various parties to the collective agreements who played no role in imposing the tender requirements—specifically the various unions and the Hydro Project Management Association. [ 13 ] Relevant Provisions of the Act Determination of questions by board 142(5) In any proceeding before the board or on application in writing to the board by any person, union or employers’ organization who or which, in the opinion of the board, would be affected by or have an interest in the determination of the question, or on its own motion, the board may, at any time, decide any question for the purposes of this Act , including, without limiting the generality of the foregoing, any question as to whether (

a) a person is an employer or employee; or (

b) an employee is a professional employee; or (

c) an organization or association is a union or an employers’ organization; or (

d) an employee or group of employees is or are included in a unit for which a bargaining agent has been certified; or (

e) a collective agreement has been entered into, and the terms thereof, and the persons or organizations who or which are parties to or are bound by the collective agreement or on whose behalf the collective agreement was entered into; or (

f) a collective agreement is by its terms in full force and effect; or

(

g) any person has failed to comply with any provision of this Act; or (

h) a group of employees is a unit appropriate for collective bargaining; or (

i) an employee belongs to a craft or group exercising technical skills; or (

j) a person is a member of a union; or (

k) a provision in a collective agreement or a prevailing custom or procedure in a place of employment is a term or condition ofemployment; or (

l) work of an employee of an employer would directly facilitate the operation or business of another employer whose employeeswithin Canada are lawfully on strike or locked out; or (

m) an employee is a member of a religious group which has as one of its articles of faith the belief that members of the group areprecluded from being members of, and financially supporting, any union or professional association, and the employee has a personalbelief in those articles of faith; or (

n) any person is a professional strikebreaker; or (

o) any person has been hired to replace an employee in a unit during a strike or lockout; or (

p) any conduct is strike-related misconduct; or (

q) there has been a sale, merger or amalgamation of a business; or (

r) a union has become a successor by reason of a merger, amalgamation, or transfer of jurisdiction, or there has been a transfer ofbargaining rights to a successor union. Relationship between board and courts 143(1) Except as provided in subsections (5) and (6), the board or any panel of the board has exclusive jurisdiction to exercise thepowers conferred upon it by or under this Act and to determine all questions of fact or law which arise in any matter before it, and theaction or decision of the board or panel in any matter is final and binding on the parties thereto.

Analysis and Decision [14] The sole issue on appeal is whether the motion judge erred in finding that the plaintiffs’ claim falls within the exclusivejurisdiction of the Board. [15] This issue raises a question of law and, therefore, the applicable standard of review in this Court is correctness. [16] The parties agree that the Board has the authority to decide constitutional issues, including Charter issues, which arisein the course of proceedings that are otherwise properly before it.

See Cuddy Chicks Ltd v Ontario (Labour Relations Board), (SCC), [1991] 2 SCR 5; and R v Conway, 2010 SCC 22, [2010] 1 SCR 765. [17] Whether a matter falls within the jurisdiction of a court or within the jurisdiction of an administrative tribunal isgoverned by the principles set out by the Supreme Court of Canada in Weber v Ontario Hydro, (SCC), [1995] 2 SCR929, and the subsequent jurisprudence. See also Bisaillon v Concordia University, 2006 SCC 19, [2006] 1 SCR 666; and Tomchuk vUniversity of Winnipeg Faculty Association, 2008 MBQB 168, 229 ManR (2d) 298.

[ 18 ] The motion judge correctly summarized the law on this point. [ 19 ] In order to determine whether the dispute arises out of the collective agreements or the exclusive jurisdiction of the statutory tribunal such that the court lacks jurisdiction to hear and resolve the dispute, a two-step process must be undertaken. The first step involves identifying the essential character of the dispute, taking into account all of the surrounding facts and circumstances.

The legal character of the issue or the way in which the parties have framed the pleadings are not determinative of the essential character of the dispute for these purposes. [ 20 ] Where the alternative jurisdiction is a statutory tribunal, the second step is to determine whether that dispute, defined by its factual nature, falls either expressly or implicitly within the ambit of the issues designated by the statute to be decided by the statutory tribunal.

Lastly, the court must consider whether the tribunal’s mechanisms provide the claimant with an effective remedy. [ 21 ] Of course, Weber did not intend that labour arbitrators or tribunals always have exclusive jurisdiction in employer-union disputes. Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the tribunal has exclusive jurisdiction over the dispute.

See Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General) , 2004 SCC 39 at para 14 , [2004] 2 SCR 185 . [ 22 ] The parties do not appear to disagree with the steps for analysis of a dispute of this nature, however, they disagree with the result of that analysis in the case at hand. [ 23 ] The plaintiffs focus on the tender documents that require the successful bidders to require their employees to join certain unions and pay union dues. They argue that such requirements are contrary to the Charter guarantees of freedom of association ( sections 2(

b) and 2( d )) and are not saved by

section 1 of the Charter . They argue that this is a “stand–alone” constitutional challenge to government action. It is the governmental policy to impose union shops in all major Hydro projects which is being challenged. [ 24 ] Yet, the conditions of employment with which the plaintiffs take exception are implemented, not by the tendering requirements, but by the provisions of the collective agreements as negotiated and amended from time to time. [ 25 ] The relief claimed by the plaintiffs is directed at specific clauses of the agreements. They seek declarations that the requirements, found in specific clauses of the collective agreements, violate sections 2(

b) and 2(

d) of the Charter . As the motion judge found, that argument necessarily involves interpreting the clauses of the agreements in light of the Charter and determining whether they are constitutionally applicable to the plaintiffs. [ 26 ] Most particularly, unlike some of the other cases referred to by the plaintiffs, this case has a nexus with a particular collective bargaining agreement. It is not simply a challenge to a government policy or to a piece of legislation. It is a challenge to particular provisions in particular collective agreements.

If there is a government policy at issue, it is a policy that is implemented through the terms of these collective agreements. Moreover, the collective agreements exist independent of any government policy, and an attack on the constitutionality of the government policy cannot provide a remedy without also challenging the collective agreements. [ 27 ] As the motion judge pointed out, the relief sought in the claim includes declarations that the collective agreement terms are invalid.

I agree with her reasoning when she stated (at para 24): They seek declarations that the requirements, found in specific clauses of the BNA and TLA, that employees join specified unions and pay union dues violate ss. 2(

b) and 2(

d) of the Charter . That argument necessarily involves interpreting the clauses of the agreement in light of the Charter and determining whether they are constitutionally applicable to the plaintiffs. [ 28 ] A further examination of the re-amended statement of claim confirms the motion judge’s conclusion as to the essential character of the dispute. It is clear from the pleadings that it is not the tendering requirements, but the content of the collective agreements, that forms the essential character of the dispute.

The re-amended statement of claim is fundamentally focussed on the collective agreement terms and the collective bargaining environment, not the tender conditions imposed as a policy of the Government of Manitoba and Hydro. The plaintiffs have named the defendant unions as parties to the action and they request Charter remedies against all defendants. The tender conditions in question are pled as directly linked to the collective agreements.

The plaintiffs have pled that the requirement to join a union and pay dues originates in the collective agreements. [ 29 ] The plaintiffs also argue that there is no proceeding or application before the Board, and section 143(1) of the Act provides that the Board only has exclusive jurisdiction to determine questions of fact or law in any matter before it. [ 30 ] The only reason that there is no proceeding currently before the Board is that the plaintiffs have not initiated one.

The plaintiffs cannot change the essential character of the dispute by choosing not to bring a proceeding before the Board and then arguing that the matter is not before the Board. If the essence of the dispute is covered by the statute, then the Board has jurisdiction over it. [ 31 ] It is clear from the language of the Act in section 142(5) that the Board does have jurisdiction over these questions. The

section grants the Board broad jurisdiction to determine any question for the purposes of the Act . The essential character of the claim, in which the plaintiffs object to collective agreement terms requiring employees to join a union and pay union dues, arises implicitly, if not expressly, out of the questions relating to the Act as set out in section 142(5).

The claim implicitly, if not expressly, raises questions about whether the plaintiffs are included in the bargaining units created by the collective agreements in light of the Charter issues they raise (section 142(5)(d)); which employers ought to be considered bound by the collective agreements (section 142(5)(e)); on whose behalf do the unions enter into the collective agreements, in light of the Charter issues they raise (section 142(5)(e)); are the individual plaintiffs required to be members of a union, in light of the Charter issues they raise (section 142(5)(j)); and are the collective agreement articles in question valid in terms and conditions of employment, in light of the Charter issues raised (section 142(5)(k))?

[ 32 ] Section 142(5) expressly states that the Board may determine questions for the purposes of the Act “In any proceeding before the board or on application in writing to the board by any person . . . who . . . would be affected by or have an interest”. The regulations associated with the Act also identify the form of the proceeding that would be applicable. A proceeding to answer any of the questions raised pursuant to section 142(5) can be brought to the Board for resolution as set out in the Manitoba Labour Board Rules of Procedure , Man Reg 184/87R at

section 16 which reads: Application for a board determination or decision 16 Where an application for a board determination or decision is made pursuant to subsection 142(5) of the Act , the applicant, in addition to the material required to be filed under

section 2 , shall (

a) specify the clause of subsection 142(5) of the Act in respect of which the ruling or decision is requested; (

b) file a concise statement as to the status of the parties, the ruling requested and the steps taken by the parties to attempt to resolve the matter between them; and (

c) where the ruling requested pertains to a collective agreement or any provision thereof, file a copy of the collective agreement in triplicate. [ 33 ] The characterization of the dispute, as articulated by the plaintiffs themselves in their re-amended statement of claim, clearly demonstrates that it arises out of the collective agreements, the Act and its

interpretation, and issues deeply rooted in labour relations, all of which fall within the purview of the Board and which that entity is specifically authorized to adjudicate. [ 34 ] I would dismiss the appeal with costs. JA I agree: JA I agree: JA