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HomeMy WebLinkAbout2011-1335.Union.13-11-20 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-1335 UNION#2011-0999-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Len Hatzis Ministry of Government Services Legal Services Branch Counsel HEARING November 1, 2013 - 2 - Decision [1] This decision deals with a motion by the union for certain remedial orders, which are opposed by the employer. The following background puts the dispute into context. [2] A number of grievances, including the instant union grievance dated June 29, 2011 came before the Board on February 21, 2013. At the time, the Board had previously held in Re Hunt, 2001-0534 (Abramsky) that the work of preparation and certification of transcripts performed by court reporters is bargaining unit work to which the collective agreement applied, that OPSEU was the exclusive bargaining agent of the court reporters for that work, and that the employer could not treat court reporters as falling outside of the collective agreement in regard to that work. A declaration was made that the employer had violated collective agreement by not applying it to the work in question. [ 3] It was agreed that despite those findings and declaration, the status quo continued in that the employer did not apply the collective agreement to court reporters doing the transcription work, and continued to treat them as independent contractors not covered by the collective agreement. In the circumstances, the union filed the instant policy grievance and sought a cease and desist order and an order that the employer apply the terms and conditions of the collective agreement to court reporters performing transcription work. The employer objected to the granting of those orders on a number of grounds. [4] In a decision dated March 1, 2013, for the reasons set out therein, the Board rejected the objections of the employer, and at paragraphs 36 and 37 ordered as follows: [36] It follows from the foregoing that none of the submissions advanced by the employer causes the Board to refuse the remedial orders sought by the union. Therefore, the Board orders as follows: (1) The employer shall forthwith cease its violation of the collective agreement by failing to apply the collective agreement to Court Reporters, who the Board has declared to be employees performing bargaining unit work when producing transcripts. - 3 - (2) The employer shall forthwith apply the collective agreement to court reporters performing bargaining unit work of production of transcripts, and shall not treat them as independent contractors. [37] The Board remains seized with jurisdiction with regard to any disagreement between the parties as to the implementation of the orders made herein, and with respect to all of the other grievances before it. [5] The union claimed that following the issuance of the foregoing orders the employer continued to treat the work in question as falling outside the collective agreement and its terms were not applied to court reporters performing the transcription work. The union requested that the employer comply with the Board orders. However, the status quo continued. In the circumstances the Board orders were registered with the Ontario Superior Court of Justice. On March 27, 2013, union counsel wrote to employer counsel, inter alia, as follows: This decision is now a decision of the Superior Court of Justice and is enforceable as such. Please advise as soon as possible, but no later than April 3rd 2013, if the Employer will immediately take all necessary steps to fully comply with this order. Should the Employer fail to comply with the order I will seek instructions from my client to bring a motion for an order for contempt and pursue the appropriate penalty for such contempt which could include a fine or incarceration. [6] The union did subsequently make application before the Superior Court and a hearing is scheduled before the Court on March 17, 2014. The Court’s endorsement dated April 24, 2013 states that “OPSEU is moving for contempt against the crown”, and lists the issues to be determined as follows: “1. Can crown be held in contempt? 2. GSB order made an order of the court: Has the order been violated?” In the instant proceeding, the employer did not assert that it was applying the terms of the collective agreement to the work in question or that it had ceased treating court reporters performing that work as independent contractors as ordered by the Board. Nor did the employer concede that it had failed to comply with the Board orders. It appears from the fact that the issue of whether the employer violated the Board’s orders is before the courts, that the issue would be argued before the court as part of the contempt proceedings. . [7] It is against this backdrop that the union seeks from the Board the following additional orders. First, the union seeks an order that the employer identify to the union the individual or individuals who are responsible for not complying with the Board orders. - 4 - Second, the union seeks an order from the Board against the individual or individuals so identified, that they forthwith comply with the Board orders issued on March 1, 2013. The union submitted that if the Board is not prepared to order that those persons personally comply, they should be ordered to take all necessary steps to ensure compliance. [8] In the alternative, the union submitted that if the Board denies all of the foregoing orders, it ought at the very least order that the individuals identified as responsible for not complying with the Board orders appear before the Board to testify and explain the failure to comply. The union submitted that once that is done, the union would be seeking from the Board contempt orders against those individuals. [9] Employer submissions The employer opposes the requested orders on three separate grounds. First, it is submitted that the Board has no jurisdiction to grant the requested orders. Second, the employer takes the position that the union’s motion for the orders before the Board is an abuse of process. Third, the employer asserts that in any event, the crown or any of its officers cannot be held in contempt either by the Board or by the Superior Court of Justice. [10] The Board has no jurisdiction to grant the orders sought The employer made a threefold argument in support of its position that the Board lacked jurisdiction to grant the requested orders: (a) The Board does not have enforcement powers. (b) The Board cannot make an order against particular individuals. (c) The Board has already decided the matter and is now functus officio. [11] (a) The Board does not have enforcement powers Employer counsel submitted that from the documents before the Board and the union’s opening statement, it was clear that the union is embarking on a two-step process. First, it intends to obtain compliance orders against particular individual officers of the crown. Second, if those individuals do not comply with the Board orders, the union intends to - 5 - seek contempt orders from the Board against those individuals. Reference was made to correspondence dated April 24, 2013 from union counsel to employer counsel, wherein it is stated inter alia, that “OPSEU will be seeking an order from the GSB against the individuals responsible for the failure to implement this decision, and will be bringing a contempt motion before the GSB against these individuals once such an order has been issued”. Thus, these orders are sought with the ultimate goal of having the Board enforce the orders it issued on March 1, 2013. It was submitted that the Board did not have such enforcement powers. [12] Counsel referred to s. 48(19) of the Labour Relations Act which reads: Enforcement of arbitration decisions (19) Where a party, employer, trade union or employee has failed to comply with any of the terms of the decision of an arbitrator or arbitration board, any party, employer, trade union or employee affected by the decision may file in the Superior Court of Justice a copy of the decision, exclusive of the reasons therefor, in the prescribed form, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such. It was submitted that the Act has explicitly provided for a mechanism to enforce Board orders where there is non-compliance. It was pointed out that the union has in fact resorted to that mechanism by registering the Board orders in the Superior Court, which therefore are now enforceable as a judgement or order of the court pursuant to s. 48(19). Counsel referred to the union’s request in the alternative that the Board order individuals to appear before the Board to explain why the Board orders have not been complied with. That demonstrates clearly that the union is attempting to have the Board force compliance of its own orders. [13] The Board’s attention was drawn to Re Marsh Engineering Ltd. [2000] 89 L.A.C. (4th) 80 (Sarra), at para. 17, where the arbitrator wrote: 17 Where a party fails to comply with any terms of the decision of an arbitrator, any party, employer, trade union or employee affected by the decision may file in the Ontario Superior Court of Justice a copy of the decision in the prescribed form pursuant to section 48(19) of the Labour Relations Act, 1995, supra. The decision is enforceable as an order of the Court (section 48(19), Labour Relations Act, 1995, supra). While an arbitrator makes determinations of liability, she or he has no enforcement powers. Decisions must be enforced through the civil courts. - 6 - [14] The employer also relied on the decision of the Ontario Labour Relations Board in Re Residential Low Rise Forming Contractors Assn. of Metropolitan Toronto and Vicinity, [2012] O.L.R.D. No. 4070. There the applicant alleged that the respondent clearly was non-compliant with an order of the Board and argued that “the Board could simply enforce its June 27, 2012 decision” (Para. 29). The respondent took the position “… that the Board could not enforce its own orders. Board orders must be enforced through the Courts” (para. 30). In agreeing with the respondent that “the Board does not have the authority to enforce its own decisions and orders”, at para. 32 the Board referred to s. 96(6) of the Labour Relations Act, “which states that the Board determination may be filed with the court and enforceable as a court order. There is also no specific power vested in the Board and contained in the Act to enforce its orders”. Employer counsel submitted that there is no provision in either the Labour Relations Act or the Crown Employees Collective Bargaining Act that bestows upon the Grievance Settlement Board the power to enforce its orders. On the contrary, the governing legislation explicitly provides that enforcement of Board orders must be through the courts. [15] The employer relied further on the decision of the B.C. Labour Relations Board in Re Haebler Construction Ltd., (1993) 21 C.L.R.B.R. 81. The factual background to the dispute is set out at p. 81 as follows: The Council issued an Order on December 7, 1992, following a determination that the Employer has committed an unfair labour practice by dismissing Colin Smith: Haebler Construction Ltd., IRC No. C203/92 (affirmed on reconsideration BCLRB No. B31193). Under the terms of that Order, the Employer was to cease and desist its contravention of the Industrial Relations Act, and to immediately reinstate Smith “to his former position and continue to provide him work on the same basis that it has in the past” (p. 17). The Employer was also ordered to pay Smith for all wages and benefits lost between the time of layoff and the date of his reinstatement. On December 7, 1992, at the Union’s request, a copy of the Order was filed in the Supreme Court registry pursuant to Section 30 of the Industrial Relations Act. The Employer reinstated Smith on December 11, 1992. On December 23, 1992, the Employer again laid him off. Smith has not worked for the Employer between December 23, 1991, and the date of this application. The union sought a hearing before the Board to call evidence relating to losses sustained by Smith and to make argument with respect to the remedies sought. The employer opposed the union’s request on several grounds including the following: - 7 - The Board, by virtue of Section 135(2) of the Code, loses jurisdiction over Orders once they are filed in the Supreme Court registry. If the Union feels that the Employer has not complied with the Order, the Union must seek a remedy by way of enforcement in the courts. It is not a proper application of Section 143 to use it to declare that a previous order has not been complied with. The Board rejected the employer’s position that the Board loses jurisdiction over its orders for all purposes once they are filed in the court, under s. 135(1) of the Code. It held that the Board retains jurisdiction over an application under s. 143 to reconsider, vary or clarify an order that had been registered in the court. However, the Board went on to make the following finding: In this case, however, the Union is not seeking reconsideration, variation or clarification of the original Order. Instead, it argues that the Employer breached the terms of the original Order and as a remedy asks the Board to issue further Orders. The Union’s application is totally concerned with enforcement of the original Order. The Board has no independent authority or means to enforce its own orders. Traditionally, it has relied on the enforcement powers and procedures available to the Courts: Cominco Ltd., BCLRB No. 283/83, (1984), 4 CLRBR (NS) 45; Citation Industries Ltd., IRC No. C206/88, (1989), 19 CLRBR (NS) 262; Citation Industries Ltd. v United Brotherhood of Carpenters and Joiners of America, Local 1928, et al, supra. The Union appears to have recognized this because it initially requested that the Order granted in IRC No. C203/92 be filed under the former Section 30 (now Section 135). I agree with the Employer’s submission that where a party asserts that an order of the Board, filed in Court, has not been complied with, it is not a proper use of Section 143 to seek a declaration to effect enforcement. This is precisely the function that the Legislature has bestowed upon the Court. Thus, the proper forum to decide whether the Employer has complied with the Order and to ensure its enforcement is the Court. Neither is it proper use of Section 143 to seek new orders on matters which have already been decided. In its application, the Union alleges that Smith was laid off when work was still available for him to perform. The implication of this allegation is that Smith may been improperly terminated. If the Union believed that to be the case, and if it could prove a new violation of the Code, it should have filed a new application under the appropriate unfair labour practice provisions of the Code. In summary, I conclude that, while the board does not lose jurisdiction simply because its Order has been filed in the Supreme Court registry it does not have jurisdiction to ensure enforcement of its Orders. Therefore, the Union’s application is dismissed. [16] Also cited was the award of arbitrator Shime in Re Dana Corp. [2005] 143 L.A.C. (4th) 251. In that case there was disagreement as to whether the issues to be determined were properly before arbitrator Shime or whether arbitrator Burkett, who had previously issued two awards, which inter alia, had imposed certain conditions on the grievor, was seized - 8 - of those issues. At para. 8 arbitrator Shime set out a number of principles derived from the case law which included the following: (4) And finally, an arbitration board does not have the authority to enforce its award and should be cautious not to enforce its award under the guise of implementing conditions. Consumer’s Gas Co. and International Chemical Workers’ Union, Local 161 supra. Counsel submitted that the caution expressed in that principle is clearly applicable here, in that the union was seeking the enforcement of the Board orders in the guise of an exercise of jurisdiction retained for purposes of determining disputes as to implementation. [17] (b) The Board has no power to make orders against particular individuals The employer submitted that the Board derives its remedial powers from s. 48(12) of the Labour Relations Act and that the orders sought by the union in this proceeding do not fall within its scope. Reliance was placed on s. 48(18) of the Act which provides: (18) The decision of an arbitrator or of an arbitration board is binding, (a) upon the parties; (b) in the case of a collective agreement between a trade union and an employers’ organization, upon the employers covered by the agreement who are affected by the decision; (c) in the case of a collective agreement between a council of trade unions and an employer or an employers’ organization, upon the members of affiliates of the council and the employer or the employers covered by the agreement, as the case may be, who are affected by the decision; and (d) upon the employees covered by the agreement who are affected by the decision, and the parties, employers, trade unions and employees shall do or abstain from doing anything required of them by the decision. It was submitted that any decision or order of the Board, therefore, could only be binding on the employer, the trade union and the employees covered by the collective agreement who are affected by the decision. Since individual members of management are not the “employer” nor “employees covered by the collective agreement”, the Board has no power to make binding orders against them in their individual capacity. [18] Reference was also made to s. 56 of the Labour Relations Act, which provides: 56. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the - 9 - trade union is certified and upon the employees in the bargaining unit defined in the agreement. Counsel submitted that it follows that the only parties to the collective agreement are the employer, the trade union and individual employees who are members of the bargaining unit defined in the agreement. While the employer may be held responsible for actions of individual managers, managers are not bound in their individual capacity by a collective agreement and cannot be held to be in violation of the collective agreement. If the legislature intended to make arbitration decisions and orders binding on individual managers it could and would have included individual managers in s. 48(18) and s. 56. It has chosen not to do so. Reliance was placed on London Life Insurance Co. v. Dubrevil Brothers Employees Assn., [2000] 190 D.L.R. (4th) 428, (Ont. C.A.), Re Blake et al, 1987-1276 (Shime); Re Hunt 2001-0534 (Abramsky). [19] (c) The Board has already decided the matter and is now functus officio Employer counsel acknowledged that at para. 37 of its decision dated March 1, 2013, the Board remained seized with jurisdiction “with regard to any disagreement between the parties as to the implementation of the orders made herein”. The “orders made herein” were an order that the employer forthwith cease its violation of the collective agreement by failing to apply the collective agreement to court reporters and an order that the employer forthwith apply the collective agreement to court reporters performing bargaining unit work of production of transcripts and not treat them as independent contractors. Counsel submitted that the additional orders the union was seeking in this proceeding do not arise from any disagreement between the parties as to what the Board ordered in its March 2013 decision. The Board’s orders are specific and clear. The union is not seeking an interpretation from the Board as to what the orders mean. Rather, it was seeking new and additional orders, [20] Counsel submitted that in the original proceeding the union had argued that the only way the violation could be brought to an end is through a direct order to cease and desist the violation and to comply with the collective agreement”. (Decision of March 1, 2013, para. 16). The employer opposed the issuance of those orders. However, the Board determined that the orders sought were within its jurisdiction and proceeded to issue the - 10 - exact orders sought by the union. Now the union was seeking additional orders. Counsel submitted that if the Board grants those orders, that would be a clear case of enforcing its original orders in the guise of implementation, which would be contrary to the principle expressed in Re Dana Corp., (Supra at para. 16) [21] Employer counsel submitted that the present motion is about forcing the employer to comply with the orders previously sought and issued. The motion would require the Board to hear new facts about events that post-date the issuance of its original orders. This is clear since the union has explicitly requested an order that employer representatives appear before the Board to testify as to why the Board orders have not been complied with. Counsel referred to another principle set out by arbitrator Shime in Re Dana Corp. (supra) to the effect: An arbitration board may complete an award but must be careful that it does not adjudicate new facts or new issues or substantive events that occur subsequent to the award. Re Lake Ontario Steel Co. And United Steelworkers, Local 6571 (1992) 24 L.A.C. (4th) 355 (L. Mikus), Re Overwaitea Ltd. And Retail Clerks Union, Local 1518 (1980) 25 L.A.C. (2d) 289 (A.M. Somjen). Reference was also made to a further principle set out by arbitrator Shime to the effect that an arbitrator, Should be cautious, when remaining seized, not to arrogate to itself under the guise of implementing conditions, the right to decide about subsequent new facts and new issues of a substantive nature that should properly be the subject matter of a further grievance and a further independent arbitration. [22] Counsel submitted that it was open to the union at the original arbitration to seek whatever orders as it deemed necessary. It chose to seek certain orders and they were granted. The Board’s orders were final and binding. The Board is now subject to the doctrine of functus officio and cannot issue any further orders. It has no power to reconsider the remedy it has granted and to make new and additional remedial orders. [23] Union Submissions Union counsel submitted that the employer’s submission, when “all the dots are connected”, is to the effect that the employer does not have to comply with Board orders and that “the Board has no power to order the employer to do anything”. Counsel - 11 - submitted that if that is accepted, it would rip apart the fundamental and basic right of the parties to a final and binding decision from the Board. [24] Counsel pointed out that while the employer submits that Board orders may only be enforced through the courts, it also has made it clear that before the court it would be taking the position that the crown and its officers enjoy immunity against contempt orders. If that position is correct, this means that all of the arbitration proceedings before the Board would be meaningless, because the employer would be free to choose which orders of the Board it would comply with. If the employer decides not to comply with a Board order there would be nothing the union can do. [25] Counsel submitted that it is very clear that the employer has not complied with the explicit Board order that it shall not treat court reporters performing the work of producing transcripts as independent contractors. It was submitted that despite the Board order, the employer has continued to post vacancies, for court reporter positions, which includes an explicit stipulation that “transcripts are prepared on incumbents’ own time with own equipment within prescribed timelines, and will receive a prescribed fee”. A posting with a closing date of November 6, 2013, containing that provision was filed in evidence as an example. [26] Union counsel referred to the retention of the Board’s jurisdiction in its decision. Counsel pointed out that the employer was in effect stating that it does not have to comply with the Board orders. The union has taken the position that the employer is obliged to comply. This, submits counsel, is a fundamental disagreement between the parties about the implementation of the Board orders. The Board has retained jurisdiction in that regard and is not functus. [27] Union counsel stated that at this time it was premature to seek contempt orders against any individuals because to date the Board has not made any orders directed at individuals. The union made it clear that it was not pursuing any contempt orders in the instant proceeding and that it was not necessary for the Board at this time to decide whether or not it had authority to make such orders. Counsel argued that the union has - 12 - been forced to seek additional orders against individuals because that was the only means available for it to obtain a final and binding settlement to its grievance. Reference was made to s. 7(3) of the Crown Employees Collective Bargaining Act, which provides: Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. It was submitted that the additional orders the union seeks against individuals responsible for the non-compliance are necessary to meet that statutory requirement of “a final and binding settlement by arbitration by the Grievance Settlement Board”. Counsel argued that due to the employer’s non-compliance, the union has been denied finality to its grievance, and section 7(3) gives the Board the power to provide that finality. [28] The union referred the Board to its decision in Re Brosseau et al and Union, 2010-1600 etc. (Gray). At para. 13 of that decision, the Board ordered as follows: [13] I hereby confirm the directions I gave orally on November 8, 2011 that (a) David Logan, Assistant Deputy Minister, Ministry of Government Services, is directed to ensure compliance by the Crown with the provisions of the order of June 16, 2011 herein by no later than the close of business on Monday, November 28, 2011; and (b) Unless the parties agree or the Board hereafter orders otherwise, Mr. Logan is directed to attend the hearing in this matter on December 20, 2011, and to bring with him and produce at that time any documents of the sorts described in paragraph 7 of the order of June 16, 2011 in this matter that have not been produced to union counsel before that date, and to show cause why he should not be punished for any failure to take all necessary steps to timely comply with the aforesaid order. It was submitted that the foregoing order is authority for the proposition that the Board has the power to make orders against individual members of management and that such individuals may be ordered to appear before the Board to explain the reasons for non- compliance. [29] Counsel referred to the statement of the Board at para.26 of its decision dated March 1, 2013 to the effect: - 13 - The Board sees no merit in the employer’s argument that the union is not entitled to seek the orders in this grievance because it failed to seek them as part of the remedy in Re Hunt. When the Board makes a declaration that certain conduct is in contravention of the collective agreement, the Board as well as the grieving party is entitled to reasonably expect that the offending party would cease that conduct and comply with the collective agreement. The union is not obligated to seek explicit orders to comply, in anticipation that the employer may not comply. Counsel submitted that similarly, when it sought a cease and desist order and an order that the employer apply the collective agreement to the work in question, the union was entitled to reasonably expect that when the Board grants those orders the employer would comply. At the time the union could not have reasonably anticipated a need for any orders against individuals. Therefore, it is reasonable for the union to seek further orders so that it may obtain a final and binding settlement to its grievance. [30] Reply of the employer Counsel submitted that the Board’s decision in this proceeding must be based on whether or not it has legal authority to grant the orders the union seeks, and not based on its view as to what is fair or reasonable. He disagreed with the union’s assertion that if the Board denies the orders sought, the union has no recourse and the employer would be free to pick and choose what Board orders to comply with. It is not true that if the employer fails to comply with a Board order “there will be nothing the union can do”. To the contrary, the legislation has explicitly provided a forum where the union can seek enforcement of the Board orders. In fact the union has resorted to that enforcement mechanism and a hearing is scheduled before the Superior Court of Justice. The union has accessed the appropriate forum and should proceed with it. The court’s endorsement explicitly says that at that hearing the court would be determining two issues. First, whether the employer had violated the orders of the Board, and second, whether the crown has immunity from contempt orders. The court would receive submissions from both parties and rule on those disputed issues. It was submitted that the union was not entitled to circumvent that statutorily mandated enforcement procedure and engage in “forum shopping”. [31] Counsel denied that it was the employer’s contention that the Board has “no power to order the employer to do anything”. To the contrary, the Board has that power, and - 14 - exercised it when it ordered that the employer cease violating the collective agreement, and that the employer apply the collective agreement to the disputed work. Thus the Board has rendered, and the union has obtained a final and binding decision. What the union is attempting to do here is to have the Board enforce those orders. The union was not denied finality because the Board has made clear and specific orders as to what the employer is required to do. To enforce compliance with those Board’s final and binding orders, the union must resort to the courts as provided by statute. [32] Employer counsel distinguished the authorities relied upon by the union, Alberta Union of provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727 (S.C.C.); Re Carol Berry [1986] 36 A.C.W.S. (2n) 504 (nt. Div. Ct.0; Re Anderson et al, [1990] 75 O.R. (2d) 212 (Ont. Div. Ct.); Re Howe/Dalton/Loach [1994] 42 L.A.C. (4th) 342 (Dissanayake). In each of those cases, the issue was whether the arbitrator had the power to make certain orders. Following the principle that “where there is a violation there must be a remedy”, the orders sought by the union were granted. Counsel pointed out that that was exactly what the Board did in this case also. None of those cases assist the union because they were about the arbitrator’s authority to make remedial orders, and not about enforcing orders already made. [33] Employer counsel submitted that Re Brosseau, supra, is also clearly distinguishable. It makes no findings and thus could not serve as a precedent. More importantly, there was no objection to the Board’s jurisdiction to make orders against individuals, and it appears that the orders were made on consent. There is no analysis or discussion in the decision about the source of the Board’s jurisdiction to grant the orders. Counsel submitted that in any event in Re Brosseau, the Board was dealing with a situation of in facie contempt. The orders not complied with were interlocutory orders made during the course of the proceeding. In contrast, here the orders of the Board were final and binding orders, and the contempt alleged against the individuals is ex facie. [34] In summary, employer counsel submitted that the Board has already rendered a final and binding decision. The orders made are clear. There is no misunderstanding as to what was ordered and no clarification is required. The union has in fact submitted that in its - 15 - view the employer has failed to comply with the clear orders of the Board. Thus in reality the orders sought by the union are about enforcement of the Board orders. The union has accessed the appropriate forum for enforcement, the courts. It is open for the union to make the arguments it made in this proceeding at the court proceeding. The court, which has much broader remedial powers than the Board does, would receive submissions from both parties and rule as it deems fit. [35] DECISION The employer’s first ground of objection to the motion is that the Board has no jurisdiction to grant the orders requested. The employer’s jurisdictional grounds of objection include submissions to the effect that the Board has no enforcement powers and that the Board is functus officio. The Board turns to these objections. [36] No enforcement powers The union characterizes the additional orders sought as a necessary part of its entitlement under s. 7(3) of the Crown Employees Collective Bargaining Act, to a final and binding settlement of its grievance. The employer disagrees and takes the position that the Board has already issued, and the union had obtained, final and binding orders, and that the additional orders sought are an attempt by the union to have the Board enforce the orders it had granted. The employer submits that the Board lacks such enforcement powers. [37] Upon a review of the submissions, the case law reviewed herein and the applicable statutory provisions, the Board agrees with the employer. In its decision dated March 1, 2013 the Board granted the exact remedies the union sought as redress for the employer’s violation. The Board agrees with the union’s submission that it would have been reasonable for the union, having received those orders, to expect that the employer would comply and do what it had been ordered to do. However, if the employer does not do so and fails to comply, that is not a result of the Board’s orders being not “final and binding”. It is the result of the employer’s failure to comply with the Board’s final and binding orders. The employer acknowledged, and indeed insisted, that the union had received final and binding orders from the Board exactly as it had requested. That was a substantial component of the employer’s submissions in objecting to the motion. - 16 - Employer counsel did not assert that the employer had applied the collective agreement to the disputed work as ordered. However, he did not concede that the employer had thereby failed to comply with the Board orders. To the contrary, he relied on the fact that the court, in its endorsement, had taken jurisdiction to determine whether or not the employer had violated the Board orders as part of the union’s motion for contempt orders scheduled before the court for March 17, 2014. [38] All of the additional orders sought herein by the union are based on an assumption that there has been non-compliance with the Board’s original orders. Although that appears to be the case, the employer has not conceded non-compliance. On the contrary, whether or not there was compliance is one of the issues the court would be determining as indicated in its endorsement. In Re Haebler Construction Ltd, (supra) the B.C. Labour Relations Board held that its statutory authority to reconsider, vary or clarify its decisions did not provide jurisdiction, inter alia, “to decide whether the employer has complied with the order”. In the Board’s view, this Board also has no jurisdiction to determine whether or not its previous orders have been complied with. That is a power bestowed upon the Superior Court of Justice under s. 48(19) of the Labour Relations Act and the court has in its endorsement stated that it would be exercising that power. [39] From the union’s submissions themselves, it is clear to the Board that the union is seeking these orders as a means of enforcing the orders it had obtained in March 2013. Had the union been satisfied that the employer had complied with those orders, it would not have returned to the Board seeking these additional orders. Indeed, the thrust of the union’s submissions was to the effect that the only way the union could enforce the Board orders, was by obtaining these additional orders against individuals responsible for non-compliance. While the union attempted to characterize the orders as necessary to make the Board’s March 2013 orders “final and binding”, the Board is convinced that in reality, the union is seeking the enforcement of those orders through the Board. [40] The Board has reviewed in some detail the law relied upon by the employer in support of the proposition that the Board lacks the authority to enforce its orders. That law is consistent and clear. In the absence of a specific statutory grant of enforcement powers, - 17 - an arbitrator has no such power. In the case of this Board the relevant statutory provision is s. 48(19) of the Labour Relations Act. Under the title “Enforcement of arbitration decisions” it spells out the process to be followed where there is a failure to comply with a Board order. The union did not make any submissions as to why it is legally entitled to seek enforcement through the Board in light of this explicit statutory provision. [41] In light of the applicable statutory provisions, and the well established case law, the Board concludes that it has no jurisdiction to enforce its orders. The governing statute has explicitly addressed the issue of enforcement of Board orders. It sets out a process for enforcement through the courts. The union has accessed that process and it is not open to it to seek enforcement through the Board in the alternative. [42] Functus Officio The parties appear to be in agreement to the extent that the Board, having issued its remedial orders dated March 1, 2013 is functus officio, except for the specific purposes for which it retained jurisdiction in para. 37. It is the union’s contention that the jurisdiction retained authorizes the Board to issue the additional orders it seeks. [43] In the Board’s view, to do so would be to do exactly what arbitrator Shime cautioned against in Re Dana Corp., (supra), that is to enforce Board orders in the guise of implementation. It is significant that neither party to this motion has taken the position that there is any disagreement as to the proper meaning and interpretation of the Board orders dated March 1, 2013. To the contrary, the union argued repeatedly that the Board orders are specific and clear as to what the employer is required to do. The employer did not disagree. Therefore, there is no dispute as to implementation which would fall within the jurisdiction the Board retained. [44] In Re Haebler Construction Ltd., (supra) the B.C. Labour Relations Board, in denying the orders sought by the union stated as follows: “In this case, however, the Union is not seeking reconsideration, variation or clarification of the original order. Instead it argues that the employer breached the terms of the original order and as a remedy asks the Board to issue further orders. The union’s application is totally concerned with enforcement of - 18 - the original order. The Board has no independent authority or means to enforce its own orders”. That reasoning applies to the instant motion also. There the Board held that its statutory power to reconsider its decisions did not empower it to enforce its decisions. Similarly, here the jurisdiction retained does not, and cannot include the power to enforce the Board orders. The Board has already concluded that the additional orders sought herein are about enforcement of the Board’s prior orders, and that the Board does not have such enforcement powers. Therefore, it necessarily follows that the Board cannot retain for itself a power which it does not possess under the law in the first place. Therefore, the retention of jurisdiction, however broadly it is interpreted, cannot include the jurisdiction to enforce Board decisions. [45] The Board appreciates and understands the union’s frustration which was vigorously and passionately expressed by union counsel. The union had engaged in protracted litigation with the employer and obtained the remedial orders it had sought. The union reasonably expected that the employer would comply with the Board orders and that the violation would cease. When it felt that there was no compliance, the union resorted to the statutorily mandated enforcement procedure thorough the Superior Courts. Now it faces a legal argument from the employer that the Crown as the employer and its officers enjoy legal immunity against contempt orders from the court. The union is concerned that if the court upholds that argument, it may be left with no means of enforcing the Board orders. As counsel put it “the union will be left holding a Board order which is of no value”. The union believes that in that eventuality the whole process of arbitration before the Grievance Settlement Board would become meaningless because the employer would be free to act with impunity and decide what Board orders it would comply with and disregard other Board orders it does not agree with, and there would “nothing the union can do”. [46] The Board observes that while all of the foregoing are reasonable concerns on the part of the union, they are premised on speculation as to how the courts may or may not rule upon the legal arguments that will be made on the issue of enforcement of Board orders and how the employer may or may not act in the event the court does not take jurisdiction to enforce those orders. The Board only observes that the Superior Court of Justice has - 19 - much broader powers, including equitable powers, than arbitration boards do. It is not at all clear that the court’s remedial and enforcement powers are confined to contempt orders. Both parties to the motion before the courts will undoubtedly make submissions to the court on the issue of enforcement of Board orders and the court would make rulings as it deems fit. [47] Assuming, however, that the worst case scenario envisaged by the union in fact materializes, and it is left with no means of enforcing the orders it had obtained from the Board, does that make any difference in the scope of the Board jurisdiction? The answer has to be in the negative. The Board is a creature of statute and possesses only such powers as vested upon it by law. The Board must act within its jurisdiction. Even though it may be tempting to intervene and provide justice and equity, the Board cannot assume such equitable jurisdiction which is not legally conferred upon it. [48] As a result of the foregoing findings that the Board upholds the employer’s position that it lacks jurisdiction to grant the additional orders the union seeks because these orders are an attempt to enforce Board orders, and the Board lacks enforcement powers. The retention of jurisdiction by the Board does not empower the Board to grant the orders sought. [49] In light of the foregoing conclusion, it is unnecessary for the Board to deal with the employer’s submission that the Board has no jurisdiction to make orders against individuals. Nor is it necessary to determine the employer submissions to the effect that the instant motion by the union is an abuse of process because the issue of enforcement of the Board orders is properly before the court, and the argument that the crown and its officers cannot be found in contempt by the Board or the Superior Court of Justice. - 20 - [50] The orders sought by the union in this motion are therefore denied. Dated at Toronto, Ontario this 20th day of November 2013. Nimal Dissanayake, Vice-Chair