ARCHIVED — Vol. 147, No. 1 — January 2, 2013

Registration

SOR/2012-305 December 18, 2012

CANADA LABOUR CODE

Regulations Amending the Canada Industrial Relations Board Regulations, 2001

The Canada Industrial Relations Board, pursuant to section 15 (see footnote a) of the Canada Labour Code (see footnote b), makes the annexed Regulations Amending the Canada Industrial Relations Board Regulations, 2001.

Ottawa, December 17, 2012

ELIZABETH MacPHERSON
Chairperson, Canada Industrial Relations Board

REGULATIONS AMENDING THE CANADA INDUSTRIAL RELATIONS BOARD REGULATIONS, 2001

AMENDMENTS

1. The title of the Canada Industrial Relations Board Regulations, 2001 (see footnote 1) is replaced by the following:

CANADA INDUSTRIAL RELATIONS BOARD REGULATIONS, 2012

2. Sections 4 and 5 of the Regulations are replaced by the following:

4. A proceeding before the Board is initiated by filing a document in writing in accordance with these Regulations.

5. In any proceeding before the Board, the use of the forms provided by the Board is encouraged but not essential.

3. Subsection 7(1) of the Regulations is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

  • (d) by any other means authorized by the Board.

4. Section 9 of the Regulations is replaced by the following:

9. If the time limit for the completion of any task or the filing of any document expires or falls on a Saturday or a holiday, as defined in subsection 35(1) of the Interpretation Act, it is extended to the next day after that.

5. Section 12 of the Regulations is renumbered as subsection 12(1) and is amended by adding the following:

(2) A response must be filed

  • (a) in the case of an application for certification, within 10 days of the receipt of notice of the application; and
  • (b) in the case of any other application, within 15 days of the receipt of notice of the application.

(3) A reply must be filed within 10 days of the filing of the response.

(4) A request for an extension of time to file a response or reply must be made in writing to the Board and set out the grounds for the request.

6. Section 12.1 of the Regulations is replaced by the following:

12.1 (1) Any person who wishes to apply for intervenor status must make a request to intervene in writing that includes

  • (a) the name, postal and email addresses and telephone and fax numbers of the person and of their legal counsel or representative;
  • (b) a description of the person’s interest in the matter including, an explanation of any prejudice that the person would suffer if the intervention were denied and an explanation as to whether their interest is different from that of any other party; and
  • (c) an indication as to how the intervention will assist the Board in furthering the objectives of the Code.

(2) Subject to section 16, a request to intervene must be filed

  • (a) in the case of an application for certification, within 10 days of the receipt of notice of the application; and
  • (b) in the case of any other application, within 15 days of the receipt of notice of the application.

(3) A response to a request to intervene must be filed within 10 days of the receipt of the request.

(4) A reply must be filed within 5 days of the filing of the response.

(5) If the request to intervene is granted, the intervenor must file with the Board written submissions on the merits of the case within 10 days of the notification that the request to intervene has been granted including

  • (a) the Board’s file number for the relevant application;
  • (b) full particulars of the facts, relevant dates and grounds for the submissions;
  • (c) a copy of supporting documents for the submissions;
  • (d) the intervenor’s position relating to any order or decision sought;
  • (e) an indication as to whether a hearing is being requested and, if so, the reasons for the request; and
  • (f) a description of the order or decision sought.

(6) A response to the intervenor’s submissions on the merits of the case must be filed within 10 days of the filing of the submissions.

(7) A reply by the intervenor must be filed within 5 days of the filing of the response.

(8) A request for any extension of time for filing a document under this section must be made in writing to the Board and set out the grounds for the requested extension.

7. Sections 13 and 13.1 of the Regulations are repealed.

8. Section 14 of the Regulations is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

  • (g) complaints respecting a dismissal made under section 133 of the Code.

9. Section 17 of the Regulations is repealed.

10. Subsections 21(1) and (2) of the Regulations are replaced by the following:

21. (1) A party that seeks disclosure of relevant documents must request in writing the disclosure directly from the other parties before applying to the Board for an order requiring disclosure.

11. Section 22 of the Regulations is replaced by the following:

(1) Subject to subsection (2), the Board must place a document on the public record if the document is relevant to the proceeding.

(2) The Board, on its own initiative or at the request of a party, may declare that a document is confidential.

(3) In determining whether a document is confidential, the Board must consider whether disclosure would cause specific direct harm to a person and whether the specific direct harm would outweigh the public interest in disclosure.

(4) If the Board declares that a document is confidential, the Board may

  • (a) order that the document or any part of it not be placed on the public record;
  • (b) order that a version or any part of the document from which the confidential information has been removed be placed on the public record;
  • (c) order that any portion of a hearing, including argument, examination or cross-examination, which deals with the confidential document, be conducted in private;
  • (d) order that the document or any part of it be provided to the parties, or only to their legal counsel or representative, and that the document not be placed on the public record; or
  • (e) make any other order that it considers appropriate.

12. Subsection 24(2) of the Regulations is replaced by the following:

(2) With the exception of a matter to which the expedited process applies, or with the consent of the Board, the summons referred to in subsection (1) must be served no later than five days before the hearing.

13. The heading before section 25 of the Regulations is replaced by the following:

Hearing Procedures

14. Section 25 of the Regulations is repealed.

15. (1)The portion of subsection 27(1) of the Regulations before paragraph (a) is replaced by the following:

27. (1) A party that intends to present evidence must file with the Board six copies or such other number as the Board may specify of the following:

(2) Paragraph 27(1)(b) of the Regulations is replaced by the following:

  • (b) a list of witnesses expected to be called that includes their names and occupations, along with a summary of the information that is expected to be provided on issues raised in the application, response or reply.

16. The Regulations are amended by adding the following after section 29:

29.1 If a matter has been dormant for more than 12 months, the Board may send a notice to all of the parties requiring them to show cause why the matter should not be deemed to be withdrawn and, if there is no response within the period determined by the Board, deem the matter withdrawn.

17. The portion of section 30 of the Regulations before paragraph (a) is replaced by the following:

30. In any application relating to the certification of a bargaining agent

18. The heading before section 32 of the French version of the Regulations is replaced by the following:

Scrutins de reprÉsentation

19. Section 34 of the Regulations is replaced by the following:

34. In addition to the information required for an application made under section 33, an application for certification must include a separate and confidential statement of the number of employees in the proposed bargaining unit that the applicant claims to represent as members of a trade union or of a council of trade unions.

20. The Regulations are amended by adding the following after Part 5:

PART 5.1

MAINTENANCE OF ACTIVITIES

41.1 An application made under section 87.4 of the Code must include

  • (a) the name, postal and email addresses and telephone and fax numbers of the applicant and of their legal counsel or representative;
  • (b) the name, postal and email addresses and telephone and fax numbers of the respondent;
  • (c) the address of the employer’s establishments that are affected by the application;
  • (d) full particulars of the facts, relevant dates and the efforts made by the parties to resolve the issue, if any;
  • (e) a copy of the notice to bargain;
  • (f) a copy of the notice of dispute;
  • (g) a copy of the last agreement or order relating to essential services involving the parties, if any;
  • (h) the effective date and expiry date of any collective agreement that is in force or expired covering the employees in the bargaining unit affected by the application;
  • (i) the number of employees in the bargaining unit;
  • (j) the name, postal and email addresses and telephone and fax numbers of any trade union or council of trade unions that is the bargaining agent for other bargaining units that could be affected by the application;
  • (k) a description of the services the applicant alleges are required and the immediate and serious danger to the safety or health of the public that the applicant alleges would occur if the Board does not allow the application;
  • (l) an indication as to whether a hearing is being requested and, if so, the reasons for the request; and
  • (m) a description of the order or decision sought.

21. The heading of Part 6 of the English version of the Regulations is replaced by the following:

Unlawful Strikes and Lockouts

22. Section 44 of the Regulations is repealed.

23. Subsection 45(2) of the Regulations is replaced by the following:

(2) The application must be filed within 30 days after the date the written reasons of the decision or order being reconsidered are issued.

24. Subsection 47(2) of the Regulations is replaced by the following:

(2) If a party does not attend a pre-hearing proceeding or a hearing after having been given notice, the Board may decide the matter in the party’s absence.

25. The Regulations are amended by adding the following after section 47:

47.1 If the Board determines that an oral hearing is necessary, it may give notice of the hearing by any available means, including telephone, fax, publication in a daily newspaper or the posting of notices.

26. The expression “counsel” is replaced with the expression “legal counsel” in the following provisions:

  • (a) subsection 7(1);
  • (b) paragraph 10(a);
  • (c) paragraph 12(a);
  • (d) paragraph 33(a);
  • (e) paragraph 37(a);
  • (f) paragraph 40(1)(a);
  • (g) paragraph 42(1)(a);
  • (h) paragraph 43(a); and
  • (i) paragraph 45(1)(a).

COMING INTO FORCE

27. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues and objectives

The Canada Industrial Relations Board Regulations, 2001 have been in force since 2001. Since that time, the Canada Industrial Relations Board has had sufficient experience with the Regulations and has concluded that certain necessary procedures should be added, that certain procedures could be updated and improved upon and that other procedures were no longer required. Therefore, the Board took the initiative to conduct an in-depth review of the Regulations in order to determine how to revise them to best meet the evolving needs of its stakeholders, as well as those of the Board itself.

Similarly, the Standing Joint Committee for the Scrutiny of Regulations identified certain provisions of the Regulations that could be clarified, amended or removed.

With these issues in mind, the objective of the Regulations Amending the Canada Industrial Relations Board Regulations, 2001 is to make the Regulations more clear, modern and practical overall.

Description and rationale

The proposed amendments better meet the needs of both the stakeholders and the Board. Procedures have been added to address issues that arise more frequently in modern labour relations disputes, while others have been streamlined to permit more efficient resolutions of such disputes. The amendments further the Board’s mandate to contribute to, and promote, a harmonious industrial relations climate in the federally regulated sector, which is beneficial to both the federal labour community and the Board.

The proposed amendments address the conduct of proceedings before the Board and would not result in any substantive impact on revenues or resource allocation. There would be a minimal impact on employers, unions and employees who would appear before the Board in that they would need to become familiar with the amended Regulations and make adjustments to their practices if, in their discretion, any adjustments were necessary.

Consultation

The proposed amendments were preceded by comprehensive consultations with the labour and management communities in the federally regulated sector. While the Board regularly consults with its stakeholders, formal consultations regarding the proposed amendments commenced in the spring of 2011, after the conclusion of an internal review by the Board. The Board kept stakeholders informed of the internal review of the Regulations through regular updates on its Web site and in its semi-annual newsletter.

As a result of its internal review, the Board created a Consultation Chart, which set out those sections of the Regulations that had been identified for review as well as recommendations for possible amendments. This Consultation Chart was circulated to the Board’s Client Consultation Committee (CCC) and was posted publicly on the Board’s Web site.

In addition to ongoing consultations with the CCC, the Board held public consultations with stakeholders regarding the proposed amendments to the Regulations in Ottawa, Montréal, Toronto, Vancouver and Halifax in May and June 2011. The Board also solicited feedback on the proposed amendments on its Web site and posted all written feedback that it received from stakeholders.

The proposed amendments to the Regulations were prepublished in Part I of the Canada Gazette for a 15-day consultation period. The Board received a limited number of comments during the consultation period.

The Board considered all feedback it received from these various consultations when deciding what amendments to make to the Regulations. The response from the federal labour community was generally positive and supportive of the amendment process.

Implementation, enforcement and service standards

The proposed amendments would come into force on the day on which they are registered.

The proposed amendments do not affect the enforcement or service standards of the Regulations.