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HomeMy WebLinkAbout1996-1662VILLELLA96_12_11 ONTARIO EMPLOYES DE LA COURONNE ,,/ CROWN EMPLOYEES DE L'O/'ffARIO 1111 GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (410) 326-13~ GSB # 1662/96 OPSEU # 96A311-414 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Villella) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE 0 Gray Vice-Chairperson FOR THE s. Wahl GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE 0 Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 5, 1996 ? DECISION The employer terminated the grievor's employment terminated effective September 5, 1996 He grieved HIs grIevance was taken through the grievance procedure and referred to arbitration by the Grievance Settlement Board ("the GSB") In mid November 1996, after consultation with the parties as to the availability of counsel and witnesses, the GSB scheduled the grievance for hearing by Vice-Chair McKechnie on a series of non-consecutive dates beginning December 16, 1996 The union then applied to the GSB for an interim order directing that the employer reinstate the grievor to employment pending completion of the hearing on the merits, and asked that a hearing of that application be held prior to the scheduled commencement of the hearing on the merits. That application was scheduled for hearing before me on December 5, 1996 At that heanng I heard submissions on the employer's objection that the GSB is without jurisdiction to make an interim order reinstating an individual to employment, and on certam matters relating to the production of documents and attendance of summonsed witnesses. This decision records the orders I made orally at the hearing concerning production of documents and attendance of witnesses. With reference to the three members of management served by the union with summonses returnable December 5, 1996, I order that 1 The employer is to give notice to the three summonsed WItnesses that the summonses wIth which they were served requIre theIr attendance at the hearmg in this matter scheduled for December 16, 1996, and is to provide the UnIon with proof of its havmg gIven that notIce adequate to support the issue of a warrant (or stating of a case to the DIvisIOnal Court, if the Statutory Powers Procedure Act applIes to these proceedmgs, as the union argues) m the event that one or more of the witnesses falls to attend WIthout lawful excuse. 2 Except as mdicated In paragraph 3, the employer IS to produce each of the documents desCrIbed In the summonses, WIth the clarIficatIOns _.~ . 2 r indIcated by union counsel at the hearmg December 5, 1996, on or before Wednesday, December 11, 1996, eIther by provldmg union counsel with copIes or by producing originals for inspection by umon counselor a solicitor from his firm at a smgle location m the CIty of Toronto. 3 Documents whIch could not wIth reasonable dIligence have been located and produced by the deadline specIfied in paragraph 2, and documents which the employer objects to produce on grounds of relevance or privilege, need not be produced in accordance with that paragraph. All such documents shall be brought to the hearing scheduled for December 16, 1996, however, excepting only documents which could not with reasonable diligence have been located and produced by then. 4. Any question concerning the production of documents which the employer objects to produce or has failed to locate and bring to the heanng scheduled for December 16,1996 may be addressed to the Vice- Chair who conducts that hearing Dated at Toronto this 9th day of December, 1996 a~ Owen V Gray, Vice-C O/'ffARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS ~ 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSfMfLEITELECOPfE (416) 326-1396 GSB # 1662/96 OPSEU # 96A311-414 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Villella) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE O. Gray Vice-Chairperson FOR THE S. Wahl GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 5, 1996 (futher written submissions received December 10, 1996) -='" -=- DECISION The employer terminated the gnevor's employment effective September 5, 1996 He grieved. His gnevance was taken through the grievance procedure and referred to arbitration by the Grievance Settlement Board ("the GSB") In mid November 1996, after consultation with the parties as to the availability of coun- sel and witnesses, the GSB scheduled the grievance for hearing by Vice-Chair McKechnie on a senes of non-consecutive dates beginning December 16, 1996 The union then applied to the GSB for an interim order directing that the em- ployer reinstate the grievor to employment pending completion of the hearing on the merits, and asked that a hearing of that application be held prior to the scheduled commencement of the hearing on the merits. That application was scheduled for hearing before me on December 5, 1996 At that hearmg I heard submissions on the employer's objection that the GSB is without junsdiction to make an interim order reinstatmg an mdividual to employment, and on certain matters relating to the production of documents and attendance of wItnesses. No objection was taken to haVing those issues heard and determined by a Vice-ChaIr other than the one who would be hearing the grievance on Its merIts. The parties agreed that if I found that the GSB had the power to grant an mterim reinstatement order, the apphcation for such an order would then be referred to Vice-ChaIr McKechnie to be addressed on Decem- ber 16, 1996 or as he might otherwise direct. This decision addresses the juris- dIctional Issue. The Jurisdictional Issue The Crown Employees Collectwe Bargaz,nz,ng Act, 1993, S 0 1993, c.38, as amended ("CECBA") provIdes for arbitration by the GSB of disputes arismg un- der collective agreements covermg Crown employees. In their current form, sec- tIOns 2 and 7 of CECBA provide as follows: 2. (1) Subject to subsectIOn (2), the Labour Relatwns Act, 1995 shall be deemed to form part of thIS Act, (2) This Part sets out modllicatIOns to the provisions of the Labour Rela twns Act, 1995 that apply 10 the crrcumstances of this Act, ~r-~ - 2 - 7 (1) The operation of section 48 of the Labour Relatwns Act, 1995 IS subject to the modificatIOns set out in thIS section, SubsectIOns (12)(i) and (13) of sectIOn 48 of the Labour Relat~ons Act, 1995, S.O 1995, c. 1, Sch. A, ("the LRA95") provIde that (12) An arbitrator or the chair of an arbItratIOn board, as the case may be, has power, (i) to make mterim orders concerning procedural matters, (13) An arbitrator or the chair of an arbitration board shall not make an interim order under clause (12) (i) requiring an employer to reinstate an employee m employment. The union agrees that the GSB could not order interIm reinstatement under those proVisions or under any other provisions of CECBA or the LRA95 The union's position is that the GSB has the power to grant Its application for mterIm reinstatement under sectIOn 16 1 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 as amended by S 0 1994, c.27, s. 56 ("the SPPN') The pertinent provisions of the SPP A are these: 3(1) Subject to subsection (2), this Act applies to a proceedmg by a tribu nal m the exercise of a statutory power of decisIOn conferred by or under an Act of the Legislature, where the tribunal is reqUired by or under such Act or otherwise by law to hold or to afford to the parties to the proceedmg an opportumty for a hearmg before makmg a decision. (2) This Act does not apply to a proceedmg, (d) before an arbItrator to whIch the Arb~trations Act or the Labour Relatwns Act applies, 16,1(1) A tribunal may make interilll deCISIons and orders (2) A tribunal may impose conditions on an mterim deCISIon or order (3) An intenm decision or order need not be accompamed by reasons, 32, Unless it IS expressly provIded m any other Act that ItS provisIOns and regulations, rules or by laws made under It apply despite anythmg m thIs Act, the prOVIsions of this Act prevail over the prOVISIons of such other Act and over regulations, rules or by laws made under such other Act whIch conflIct thereWIth, The GSB IS clearly a tribunal of the sort described m subsection 3( 1) of the SPP A. Nothing in CECBA or the LRA95 expressly excludes the applicatIOn of the SPP A to arbItratIOn proceedmgs before the GSB Unless subsectIOn 3(2)(d) of the ~~--~ 3 - SPP A excludes its application to arbItratIOn proceedmgs before the GSB, there- fore, the GSB would have whatever powers are contemplated by section 16 1 of the SPP A. The union's posItion IS that arbItratIon proceedings before the GSB are not proceedmgs "before an arbitrator to which the Labour Relatwns Act ap- plies." It says that once the provisIOns of the LRA95 are incorporated mto CECBA by section 2 thereof, in their applIcation to GSB proceedings and the parties to them they are prOVISIOns of CECBA, not of the LRA95, and for pur- poses of the SPP A It is then CECBA, not the LRA95, wmch applies to proceed- ings before the GSB It cites the following passage from Kilgour v London Street R. W Co (1914), 30 O.L.R. 604 (ant. C.A.) at page 606 m support of that proposi- tion. The effect of incorporating thIS sectIOn in the specIal Act is the same as if the provisions of it had formed a part of the special Act. As was said by Lord Esher, M.R., in In re Wood's Estate, 31 Ch. D 607,615 "If a subsequent Act brmgs into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, IS to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no oc- casion to refer to the former Act at all." The union notes that although the previous Labour Relatwns Act expressly pro- vided that it bound the Crown, the current LRA95 does not. Section 11 of the In- terpretatwn Act, R.S.O 1990, c. I 11, provides that no act affects the rights of the Crown unless it is expressly stated therein that the Crown is bound thereby In the uruon's submIssion it follows that GSB proceedmgs, being proceedmgs to which the Crown is a party, cannot be proceedmgs to whIch the LRA95 applies. The union further argues that a tribunal's power under section 16 1 of the SPPA IS not lImited to determirung the procedure to be followed at hearmgs, but extends to determIrung how rights and other things m dIspute wIll be enjoyed pendmg dispOSItion of the dIspute on ItS merits. Hence, the GSB would have the power to order the gnevor's remstatement on an mtenm basis pendmg resolu- tion of the parties' dIspute about his entitlement to reinstatement. Since the limItation in subsectIOn 48(13) of the LRA95 IS mconsistent WIth the power that the uruon says sectIon 16 1 of the SPPA provIdes, III the union's submiSSIon the broader power prevaIls by operation of sectIOn 32 of the SPP A. P--' - 4 - The Crown's posItion is that the LRA95 as incorporated into CECBA ap- plIes to proceedings before the GSB, that CECBA expressly applies to the Crown, that by necessary implIcation the Crown is bound by the LRA95 as mcorporated into CECBA and that proceedmgs before the GSB are proceedings "before an ar- bitrator to which the Labour Relatwns Act applies" wIthm the meaning of subsection 3(2)(d) of the SPPA. It also argues that, in any event, the powers granted by section 16 1 of the SPP A are lImIted to matters of procedure and do not authorize awarding on an mterim basis any relief to which entitlement is the subject of the proceedmgs before the tribunal. Statutory History Both partIes referred to the statutory history of CECBA and the LRA95, and I will do so briefly The GSB was established under the Crown Employees Collective Bargam- mg Act, last consolidated as RS 0 1990, c. C 50 ("the old CECBA") The scheme of that Act was that disputes under collective agreements covering Crown em- ployees would be referred to arbitration by the GSB The then Labour Relatwns Act dId not cover Crown employees and was not referred to by or mcorporated into the old CECBA. Subsection 12(4) of the old CECBA expressly provIded that "[t]he Arb~tratwns Act and the Statutory Powers Procedure Act do not apply to arbItrations under this Act." Although the balance of section 12 dealt with inter- est arbitration, it is apparent that the words "arbitrations under this Act" would have embraced grievance arbitration by the GSB The GSB was continued under the Crown Employees Collectwe Bargam- mg Act, 1993, SO 1993, c.38 ("CECBA"), which repealed the old CECBA. The new CECBA continued to provIde that disputes under collective agreements cov- ermg employees of the Crown would be referred to arbItration by the GSB When CECBA was enacted m 1993, section 2 prOVIded as follows. 2.-(1) ThIS Act sets out modrlicatIOns to the apphcatIOn of the Labour Re- latwns Act with respect to Crown employees. (2) ThIS Act shall be deemed to form part of the Labour Relatwns Act for the purposes of the apphcatIOn of the Labour Relatwns Act with respect to Crown employees, - - - 5 - SectIOn 71 of CECBA amended section 2 of the then Labour Relatwns Act to pro- vide, among other thmgs, that that Act bound the Crown and that it applied to Crown employees with the modificatIOns provided for m CECBA. SectIon 7 of CECBA then provIded that 7 -(1) The application of section 45 of the Labour Relatwns Act with reo spect to Crown employees is subject to the modrlications set out in thIs sec. tion. Prior to the enactment of CECBA in 1993, the Labour Relatwns Act had been substantially amended by Labour Relatwns and Employment Statute Law Amendment Act, 1992, S 0 1992, c. 21, commonly referred to as ((Bill 40" Fol- lowing Bill 40, subsectIOn 45(8) of the Labour Relatwns Act prOVIded that (8) An arbitrator or arbitratIOn board shall make a final and conclusIve settlement of the differences between the parties and, for that pur pose, has the following powers. 4. To grant such interIm orders, including interim relief, as the ar bltrator or arbitration board considers appropnate. It was generally understood that tms provision gave arbitrators the power to grant mterim relief m the form of reinstatement in dIscharge cases. 1 With a change of government came a change m labour relations legIsla- tion. The Labour Relatwns and Employment Statute Law Amendment Act, 1995, S 0 1995, commonly known as "Bill 7", repealed the then Labour Relat~ons Act and, among other tmngs, enacted the Labour Relatwns Act, 1995, which is Schedule A to Bill 7 Bill 7 also amended various provisIOns of CECBA. Section 14 of Bill 7 repealed section 2 of CECBA and replaced it with the present provi- sion, quoted at page 1 above. Section 20 of Bill 7 repealed subsection 7(1) of CECBA and replaced WIth the prOVISIOn quoted above at page 2 The legislature did not reVIse subsectIOn 3(2)(d) of the SPPA when It en- acted Bill 7 1 See, for example, Re Veratec (Canada) Inc. and Umted Steelworkers of Amenca, Local 8505 (1993), 34 L,AC (4th) 67 (Haeflmg) and Re Midas Canada Inc. and United Steel workers of Amenca, Local 6727 (1993),36 L.AC (4th) 349 (Bnggs) - - 6 - Decision It is not for me to decIde whether the GSB should have the power to rem- state an employee to employment on an mterIm basIs pendmg determmation of hIS or her entitlement to remstatement. The Issue here is simply whether, m the current state of the law, the GSB does have such a power The threshold question is whether an arbitration proceeding before the GSB is a ((proceeding before an arbitrator to which the Labour Relatwns Act applies" within the meaning of subsection 3(2)(d) of the SPP A. If it is, then the SPPA does not apply and, as the union concedes, the Board would have no jurisdiction to grant the order sought. The SPPA clearly did not apply to the GSB under old CECBA. ItS applica- tIOn was expressly excluded by section 12 of that statute. There was no express exclusion of the SPP A by CECBA as enacted in 1993 At that time, however, sec- tion 2 of CECBA deemed that Act to be a part of the then Labour Relat~ons Act Accordmgly, a proceeding before the GSB was clearly a "proceedmg before an arbItrator to which the Labour Relatwns Act applies." In light of the statutory history of CECBA, the Labour Relatwns Act and the LRA95, the threshold issue just mentioned has an added complexity In or- der to resolve the question whether an arbitration proceeding before the GSB is a ((proceeding before an arbitrator to which the Labour Relatwns Act applies" within the meaning of subsection 3(2)(d) of the SPP A, it IS necessary to deter- mine what the reference in that subsection to ('the Labour Relatwns Act" must to be taken to mean after BIll 7 repealed the then Labour Relatwns Act tthe LRA") The Implicit premIse of the partIes' mam arguments is that the reference to the LRA in subsection 3(2)(d) of the SPPA must now be read as a reference to the LRA95, presumably by operatIOn of sectIOn 15 of the Interpretatwn Act (see page 10) Startmg from that premIse, the partIes Jom Issue on the question whether a proceeding before the GSB IS a ((proceeding before an arbItrator to wmch " the Labour Relatwns Act, 1995 applies The phrases ((before an arbItrator" and "to which the Labour Relatwns Act applIes" both modIfy "proceedmg" As counsel for the employer observes, the test IS whether the proceedmg IS one to whIch the referenced Act applIes, not 'I"""" - - 7 - whether the proceeding (or the arbitrator) IS "under" that Act. CECBA clearly .., bmds the Crown. Deemmg that "the Labour Relatwns Act, 1995" forms part of CECBA results m somethmg so named "applymg" to GSB proceedings. In my view, that could easily be the end of the analysis. Even if the test were whether the proceedings before the arbitrator were "under" the LRA95, the post-Bill 7 language of CECBA suggests that the legIsla- ture thought of proceedings before the GSB as being "under" the LRA95 Subsections (4) and (6) of section 7 of CECBA speak of tmngs the GSB shall not and may do, respectively, "m substituting a penalty under subsection 48(17) of the Labour Relatwns Act, 199$' SubsectIOn 9(2) says a referral to "mediator-arbitrator under subsection 50(1) of the Labour Relatwns Act, 199$' shall be to a Vice-Chair of the GSB Subsection 17(3) provides that "a claIm for damages under subsection 103(1) of the Labour Relatwns Act, 1995 shall be arbi- trated by the Grievance Settlement Board." SubsectIOn 48(1) provides that "[s]ubject to the specific reqUIrements in thIS Part and to any requirements m the Labour Relatwns Act, 1995, the Gnevance Settlement Board shall determine Its own practice and procedure " Although it does not refer directly to an ex- ercise of the GSB's jurisdIction in arbItratmg disputes under collective agree- ments, it is noteworthy that subsection 4(15) of CECBA provides that a collective agreement settled by voluntary interest arbItration under the incorporated pro- viSIon of the LRA "becomes a collective agreement under the Labour Relatwns Act, 199$' All of these provisions were substituted by BIll 7 for provisIOns of CECBA whIch lIkeWIse referred to the GSB as acting "under" the referenced prOVISIOn of the then LRA or, m the case of subsectIOn 4(15), to the collective agreement being a collective agreement "under" the LRA. BIll 7 changed the section references and substituted "Labour Relatwns Act, 199$' for "Labour Relatwns Act", but dId not abandon the perspective that the GSB was proceedmg "under" the Labour Relations Act then m force. This further favours the mterpretatIon that arbItra- tion proceedmgs before the GSB are proceedmgs "before an arbItrator to which the Labour Relatwns Act applIes" wIthm the meanmg of subsection 3(2)(d) of the SPP A. ~ - 8 - The thrust of the union's argument, however, IS that the references m CECBA to the Labour Relatwns Act, 1995 are not to the free-standmg statute of that name. Rather, they are references to those provisions of CECBA whIch have been incorporated by reference from the LRA95, provisions of CECBA whIch are simply being referred to collectively in CECBA as "the Labour Relatwns Act, 1995" ThIs extends the notion that incorporated provIsions take on a hfe of their own in the mcorporating statute to say that an entire Act takes on a sepa- rate life of its own witmn another statute which deems that Act to form part of It. In effect, the deemmg clones the Act, wIth the result that there are two dIS- tmct sets of statutory provisIOns each collectively known by the same name, one set of provisIOns whIch stands alone as a statute and another set whIch forms part of another statute. If "the Labour Relatwns Act" in subsection 3(2)(d) the SPPA is to be read as "the Labour Relat~ons Act, 1995" and the effect of BIll 7 was to create two dis- tinct sets of statutory provisions which are both referred to as "the Labour Rela- hons Act, 1995': then perhaps the reference in the SPP A should be taken as re- ferring to both sets of provisions, so that arbItration proceedings to whICh eIther set applies fall within the exclusIOn in subsection 3(2)(d) of the SPP A. While there IS logic to this analysis, it also seems discomfortingly artIficial. It may be that the artifiCIality flows from the premise of the union's argument that refer- ences m CECBA to provisions of the Labour Relatwns Act, 1995 do not result in GSB arbitratIOns bemg proceedmgs to which it can be saId that the Labour Rela- hons Act, 1995 applies. If the uruon's argument is correct, however, I think there is a more comfortable way to reconcile It with what appears to have been the m- tent of the legislature that, with certain modIficatIOns, GSB proceedmgs be gov- erned by the same procedural rules as arbItratIOn proceedings to which only the Labour Relat~ons Act, 1995 applIes. Before pursumg that, however, I shall first comment on Kilgour v London Street R. W Co, supra. In that case the Court of Appeal was concerned WIth a prOVISIon of 36 Vict. Ch. 99 (Ontario, 1873), a post-Confederation speCIal Act of the new provmce of Ontario creating the London Street RaIlway Company That speCIal Act mcor- porated by reference certam prOVISIOns of a pre-ConfederatIOn statute of the for mer Provmce of Canada concerning the operatIOn generally of raIlways 2 The 2 The incorporating provision of the speCIal Act read as follows ~--~ - 9 - court had to consIder the effect on the specIal Act, and particularly on the prOVI- - sions for a 6 month limItation perIOd for actions against raIlways which thIS sec- tion of the special Act had incorporated by reference from the pre-Confederation statute, of subsequently enacted general Acts of the province of Ontario on the subject of railways, and m partIcular the Ontario Railway Act of 1906 which pro- vided for a one year lImitation period. The portIOn of the court Judgment on whIch the uruon rehes (quoted at page 3 above) appears to have been included m support of the propOSItion that the repeal in 1877 of the pre-confederation Rail- way Act dId not have the effect of repealing the provISIOns previously incorpo- rated from that act into the speCIal Act. It is not apparent whether that proposition was necessary to the court's analysis in that case, since the majority decIsion also notes that the legIslation which repealed the subject pre-Confederation statute and other statutes pro- vided that a reference to a statute thereby repealed should thereafter be treated as reference to the enactment m the reVIsed statutes having the same effect as the repealed statute. There was an enactment m the reVIsed statutes havmg the same effect as the pre-ConfederatIOn Railway Act. Indeed, the Court's decIsion records that as that particular Ontario statute was replaced by others as a result of succession of enactments of the Ontario legIslature, the reference m the special Act to the pre-Confederation statute had to be read accordmgly as a reference to the most recent successor legislation. The contest then seems to have been whether the express prOVIsions of the 1906 Railway Act precluded the applIca- tion of a statutory rule of interpretation mtroduced mto the Interpretatwn Act m 1897, and now found in section 15 of the Interpretatwn Act, RS 0 1990, c. I 11, that when an Act or part of an Act is repealed and other provisions are substi- tuted, reference to the repealed Act should thereafter be taken as a reference to the provisions of the substituted Act or enactment. 16. The several clauses of the Act of the LegIslature of the late Provmce of Canada, known as "The Railway Act," WIth respect to the first and third clauses thereof, and also the several clauses of the saId Act WIth respect to "interpretation," "mcorporatlon", "general meetmgs," "calls, "shares and therr transfer," "shareholders," "actIOns for mdemmty, and fmes and penaltIes and their prosecutIOn," except section eIghty four of the said Act (but no other clauses of the Railway Act) shall, in so far only as the same are not mconslstent WIth or repugnant to any of the prOVIsions of thIS Act, be mcorporated with thIS Act, and the expreSSIOn "thIS Act," when used herem shall be held and under stood to mclude the clauses mcorporated WIth thIS Act, save and except m so far as they are mconsIstent WIth or vaned by any of the prOVISIOns of thIS Act. _c_ - 10- I am not concerned here wIth the consequences that any future repeal of - the LRA95 might have on effect of the provisions in CECBA which refer to the LRA95 My concern is with the effect of the enactment of Bill 73 on the reference to "the Labour Relations Act" in subsection 3(2)(d) of the SPP A. The union says that because of the way that prOVIsions of the LRA95 are made applicable to proceedings before the GSB, such a proceeding cannot be said to be a "proceeding before an arbitrator to which the Labour Relat~ons Act, 1995 applies." If that is so, then the premise that the reference to "the Labour Relatwns Act" m subsection 3(2)(d) of the SPPA must now be read as a reference to the LRA95 requires some further scrutiny Before Bill 7, CECBA made provisions of the LRA, as it then was, applI- cable to proceedmgs of the GSB It did that by deeming that CECBA formed part of the LRA and then settmg out in CECBA the exceptions and modIfications to that application. Thus, the LRA thereafter addressed the subject-matter of pro- ceedmgs before arbItrators mcluding GSB arbitrators. Bill 7 repealed the LRA and amended CECBA with the result, the UDlon says, that the subject matter of proceedmgs before GSB arbitrators is now addressed by CECBA and not by the LRA95 On that view, it appears that Bill 7 repealed the statute with dealt with the subJect-matter of proceedmgs before arbitrators includmg GSB arbitrators and, by a combmation of enactment of the LRA95 and amendment of CECBA, substituted two statutes to deal with that subJect-matter- the LRA95, which now addresses proceeding before those arbitrators preVIously governed by the LRA other than GSB arbItrators, and CECBA, which now addresses proceedmgs be- fore GSB arbItrators previously governed by the LRA. SectIOn 15 of the Interpretatwn Act, R.S 0 1990, c. I 11, provides, m part, as follows. 15 Where an Act IS repealed and other prOVIsions are substItuted by way of re-enactment, amendment, reVISIOn or consohdation, (b) a reference m an unrepealed Act, or m a rule, order or regulatIOn made thereunder to such repealed Act, shall, as regards any subse- quent transactIOn, matter or thing be held and construed to be a ref erence to the prOVISIons of the substItuted Act relatmg to the same subject matter 3 That IS, the Labour Relations and Employment Statute Law Amendment Act, 1995, S 0 1995, c. 1, not Just the Labour Relatwns Act, 1995 whIch appears as Schedule A to Bill 7 ~ ~ ~ - 11 - As I have saId, this was obvIously the basis of the partIes' imtial premIse that r the reference m subsectIOn 3(2)(d) of the SPP A to "the Labour Relatwns Act" should now be construed as a reference to the LRA95 But if as regards the sub- Ject addressed by subsection 3(2)(d) of the SPP A, the Act to which it refers has been repealed and functionally replaced by two Acts, should not the reference to the repealed Act be construed as a reference to both Acts, so that as regards pro- ceedings before GSB arbItrators the reference to the LRA is construed as a refer- ence to CECBA? This question was not addressed m the partIes' arguments on December 5, 1996 It occurred to me during my deliberations, and I invited and received the parties' further submissions on it. The employer's further submissions repeat its argument that, for purposes of subsection 3(2)(d) of the SPPA, a proceeding be- fore the GSB is a proceeding to which the LRA95 "applies," so that it suffiCIent to read the reference in that subsection to "the Labour Relatwns Act" as a reference to the LRA95 In the alternatIve, it submits that if a proceeding before the GSB is not a proceeding to which the LRA95 "applies" in the sense intended by sub- section 3(2)(d) of the SPP A, then the reference in that section to "the Labour Re- latwns Act" should be read as a reference to both the LRA95 and CECBA. The union makes a number of arguments. It notes that Bill 7 affected a number of statutes other than the LRA and CECBA. It then asserts that It cannot be saId that the amendments to other statutes referred to in the Labour Relations and Employment Statute Law Amendment Act, 1995 are substituted for the Labour Relations Act by way of re-enactment, amend ment, revisIOn or consolidatlon withm the meaning of section 15(b) of the In terpretation Act. If thIS were so, each and every time a statutory reference to the Labour Relatwns Act occurred in any other statute, It would be neces- sary to read into that statute and substitute for that reference not only the Labour Relations Act, 1995 but also the Crown Employees Collective Bar- gmmng Act, 1993, the Employment Standards Act, the Agncultural Labour Relatwns Act, 1994, the Freedom of mformatwn and Protectwn of Prwacy Act, the MuUtcipal Freedom of Informatwn and Protection of Prwacy Act, the Occupatwnal Health and Safety Act and the Public Servwe Act, all of which are amended, by prOVISIOns of the Labour Relations and Employment Statute Law Amendment Act, 1995 Put SImply the apphcation of sectIOn 15(b) of the Interpretatwn Act IS so un WIeldy when apphed to an omnibus bill or enactment whIch affects a large number of employment related statutes, reference must be made to the structure of the Act itself and the sectIOns in partIcular whIch repeals the Labour Relatwns Act, i.e, sectIon 1(4), to note the Imk to section 1(1) enact ing the Labour Relations Act, 1995 ThIS type of analYSIS IS conSIstent WIth - 12 - that undertaken by Madam JustIce Feldman m Automatw Systems Inc. v Bracknell Corp et. al. (1993), 110 D L,R (4th) 390 at 397 .. The question posed does not suggest that section 15(b) of the Interpreta- twn Act causes a reference to a repealed Act to be construed as a reference to every statute which was amended or enacted by the statute whIch repealed It. The union's submissIOn overlooks the constrammg consideration of subJect- matter The questIOn is whether, having regard to the subject matter WIth whIch the reference to the now repealed statute was concerned, the repealed statute has been replaced for purposes of that reference by two or more statutes. I am not called upon to determine whether that is so WIth respect to references to the repealed Labour Relat~ons Act in statutory provisions other than subsection 3(2)(d) of the SPPA. The Issue before Madam Justice Feldman in Automat~c Systems Inc. v Bracknell Corp et. al. (1993), 110 D.L.R (4th) 390 at 397 was whether a refer- ence to the Arb~tratwns Act m a prOVIsion of the Constructwn L~n Act could be read as referrmg to both the Arbaratwn Act, 1991 and the Internatwnal Com- mercwl Arb~trat~on Act It does not appear to have been argued that subsectIOn 15(b) of the Interpretatwn Act could have that effect. The learned Judge noted that the Internatwnal Commerc~al Arbaratwn Act came into force m 1988, found that the reference m the subject provIsion of the Constructwn L~n Act was to the Arb~trahons Act, RS 0 1990, c. A.24 and observed that a reference to the Inter- natwnal Commerc~al Arb~tratwn Act statute could have been but was not added in the 1990 reviSIon of the Constructwn L~en Act. The Arbarations Act had been repealed by the Arbitratwn Act, 1991 Madam JustIce Feldman referred to subsectIOn 15(b) of the Interpretatwn Act to explam that the reference in the Constructwn L~en Act to the Arb~tratwns Act, whIch was by then to be dIstingUIshed from the Internatwnal Commerc~al Arb~- tratwn Act, was to be read as a reference to the Arbaratwn Act, 1991 The sItua- tion dealt with m that deCISIOn IS clearly dIfferent from the one WIth wmch I am faced here. The umon also argues that WhIle section 2 of CECBA, 1993 provides for the mcorporatlOn of CECBA, 1993 mto the Labour RelatIOns Act m sectIOn 2(2), the Act Itself, CECBA, 1993, remams m existence m Its own nght, ThIS does not mean that, m every other statute a reference to CECBA or, for that matter, CECBA, 1993, ~' - 13. is deemed to be a reference to the Labour Relations Act by virtue of sectIOn 15(b) The concept of incorporation by reference is separate and dIstinct from repeal and substitute by way of re-enactment, amendment, reVISIon or con solidation. The concept of incorporation by reference IS mdeed separate and dIstmct from repeal and substitute by way of re-enactment, amendment, revision or consolIda- tion. The question is not whether subsection 15(b) of the Interpretatwn Act has the effect under consIderation because CECBA mcorporates the LRA95 The question is whether subsection 15(b) of the Interpretatwn Act has the effect un- der consideration because Bill 7 repealed the Labour ReIatwns Act and, at the same time, both enacted the LRA95 and amended CECBA to incorporate the LRA95 The union's argument notes that the enactment of LRA95 and the repeal of the Labour ReIattons Act were provided for in dIstinct subsections of a single section (section 1) of Bill 7, whIle the amendments ofCECBA were made in other sections of Bill 7 The legislature could have saId m Bill 7 that the LRA was thereby repealed and the LRA95 substituted therefor It dId not. The legisla- ture's having included the enactment of the LRA95 and the repeal of the LRA in subsectIOns of a single section IS not the eqUIvalent of its saymg what it chose not to say The question of what had replaced the Labour Relatwns Act for purpose of applymg subsection 15(b) of the Interpretat~on Act was left to be gleaned from the totalIty of Bill 7 If uruon is correct that the effect of Bill 7 was that thereafter a proceeding before the GSB could not be saId to be a "proceeding before an arbitrator to which the Labour ReIatwns Act, 1995 applIes," then what Bill 7 did as regards arbItration proceedings before the GSB was substitute an amended CECBA for the repealed LRA. I conclude that if the union is correct then, as regards arbItra- tion proceedmgs before the GSB, the effect of subsection 15(b) of the Interpreta- twn Act would be that the reference in subsection 3(2)(d) of the SPP A to "the La- bour ReIat~ons Act" should be read as a reference to CECBA. On any sensible analYSIS, then, proceedings before the GSB fall WItmn the exception m subsectIOn 3(2)(d) of the SPP A. Accordmgly, the SPP A does not ap- ply to such proceedmgs. I need not determine whether sectIOn 16 1 of the SPPA would have gIven the GSB jurisdiction to grant mterim reinstatement If It ap- - ~ I - 14 - plied. It does not apply, and the grievor's applIcation for mterIm reinstatement must therefore be dismissed. Dated at Toronto thIS 11th day of December, 1996 /- ~