BOARDS OF CONCILIATION AND INVESTIGATION.

CONSTITUTION OF BOARDS.

5. Whenever any dispute exists between an employer and any of his employees in any public utility industry, and the parties thereto are unable to adjust it, either of such parties may make application to the minister for the appointment, in respect of such dispute, of a board of conciliation and investigation under the provisions of this act.

NOTE. Corresponds to section 5 of 1907 act, but the last part of the old section, which referred to alternative procedure in railway cases under the conciliation and labor act, is omitted, the procedure provided by the present bill being made to apply to all railway

cases.

It has been suggested that the words "public utility" might be struck out and the provisions respecting applications for boards and investigations and report be thus made to apply to all industries. Sections 68 and 69, however, make certain provisions in respect of other industries.

6. The application shall be according to Form 1, or to like effect, and shall contain the statements and information in the said form indicated.

2. The statements and information contained in the application shall be verified by an affidavit according to Form 2, or to like effect.

3. Any person by law entitled to affirm instead of taking an oath may, instead of such affidavit, make a solemn affirmation which shall have the like force and effect.

NOTE. Corresponds to section 15 of 1907 act. The order of the sections is considerably changed from that in the old act, with a view to having the provisions as far as possible in the order in which they will require to be consulted in taking proceedings. A form of application is attached to the act and also a form of affidavit verifying the statements in the application, and this section now simply refers to these forms without repeating the particulars of the information and statements required by them. The chief change is the omission of the statement that a lockout or strike will be declared and that the necessary authority for such strike or lockout has been obtained, a statement that the applicants have endeavored, but are unable, to settle the dispute being substituted. The old requirement has caused considerable difficulty in connection with applications and seems objectionable, at all events, in many cases. Getting authority to declare a lockout or strike is considered more likely to cause or increase bitterness than to promote conciliation. Under the United States act, known as the Erdman act, such authority is not required as a condition of obtaining a board, nor was it required under the railway disputes act, 1903. See section 13 of conciliation and labor act. There seemed also to be an inconsistency in requiring a statement that a strike would take place while as matters stood such a strike would be unlawful.

7. The application shall be signed by the persons and under the authority following, namely:

(a) Where the application is made by an employer—

(1) If such employer is an incorporated company or a corporation, by one of its duly authorized managers or other principal executive officers;

(2) If such employer is an individual, by himself;

(3) If such employer is a partnership firm or an unincorporated company or association, by a majority of its members;

(b) Where the application is made by employees—

(1) If the employees desiring to make the application are members of a trade union, by two of the officers of such union duly authorized by a majority of all the members of the union upon vote taken by ballot, or by a majority vote by ballot of the members of the union present at a meeting called on not less than three days' notice for the purpose, expressly stated in the notice, of voting upon the question, or, where the dispute directly affects employees in more than one Province of Canada and such employees are members of a trade union having a general committee authorized to carry on negotiations in disputes between employers and employees, by the chairman or president and the secretary of such committee;

(2) If some or all of the employees desiring to make the application are not members of a trade union, by two of their number duly authorized by a majority vote by ballot of the employees affected present at a meeting called on not less than three days' notice for the purpose, expressly stated in the notice, of voting upon the question.

2. The affidavit verifying the application shall be made by the person or persons signing the application, or, where there are more than two, by any two of them.

NOTE. The same as section 16 of 1907 act as amended in 1910, with a readjustment of form, slight changes in wording, and the addition of subsection 2. In (b) (1) and (b) (2) of subsection 1 the words "expressly stated in the notice" are added.

8. The application and affidavit verifying it shall be transmitted by registered letter addressed to the registrar of boards of conciliation and investigation, department of labor, Ottawa, or delivered personally at the registrar's office; and the date of the receipt of such registered letter at the department, or of such delivery at the office of the registrar, shall be regarded as the date of the receipt of such application.

NOTE. Same as section 17 of 1907 act except that words are inserted expressly providing for delivering the application at the registrar's office, if preferred, instead of transmitting it by mail.

9. The applicant or applicants shall, prior to or at the time of transmitting or delivering the application to the registrar, also transmit or deliver to or for the other party to the dispute a copy of the application and affidavit.

2. Such copy shall be transmitted by registered letter or delivered personally to the person believed by the applicant or applicants to have authority to deal with the matters in question in the application, or left at such office or with such person as the applicant or applicants believe will cause it to come most promptly to the knowledge of the proper party or parties.

3. The applicant or applicants shall, in the letter, if any, accompanying the application to the registrar, or by separate letter, inform the registrar of the transmission or delivery of such copy to or for the other party, giving particulars as to time of such transmission or delivery and giving the name and address of the person or company to whom the copy has been mailed, or particulars as to whom, how, and where it has been delivered.

NOTE. Subsection 1 is the same as section 18 of 1907 act except that the words “prior to or" are inserted. Subsection 2 corresponds to section 18 of 1907 act, but is changed by leaving out the details set forth in that section. Subsection 3 is new, corresponding however, to the practice of the department in requiring information as to when and how a copy of the application was transmitted or delivered to the other party.

10. The registrar shall, immediately upon receiving the application, notify the other party, and where not satisfied that a copy of the application and affidavit has been duly transmitted or delivered to such party, or where for any other reason he deems it expedient, shall transmit or deliver a copy of the application and affidavit to or for such party in such way as he deems most speedy and effective.

NOTE. This section is new, but is in conformity with the practice of the department. It will tend to prevent delay.

11. Upon receipt by the other party to the dispute of a copy of the application for the appointment of a board, such party shall, without delay, prepare a statement in answer to the application, and transmit it by registered letter, or deliver it personally, to the registrar, and shall similarly transmit or deliver a copy thereof to the party making the application.

NOTE.-Same as section 19 of 1907 act with slight verbal changes. The word "reply is changed to "answer."

12. Either party may, if such party sees fit, either in the application or answer or by separate writing, deposited with the board or the registrar at any time before or after the board has made its report and recommendation, agree to accept and abide by the recommendation of the board, and wherever one party so agrees it shall be the duty of the registrar or the board with whom such agreement is filed to communicate the fact, or a copy of the agreement, to the other party; and where both parties agree to accept and abide by the recommendation of the board, such recommendation shall be deemed to be an agreement between the parties.

NOTE. Corresponds to section 62 of 1907 act, but the words "if such party sees fit, either in the application or answer or by separate writing, deposited with the board or the registrar are new, and the words "be deemed an agreement between the parties are substituted for the former provision that the recommendation of the board might be made a rule of court. As to old section 62, see Rex v. McGuire (16 O. L. R., 522), in which Judge Magee expressed doubt as to the force or effect of making the recommendation a rule of court; and U. M. W. A. v. Strathcona Coal Co. (8 W. L. R., 649), in which Judge Stuart referred to the section as being a little misleading.

13. Within 10 days after the application is received, the minister, if satisfied that the application is proper and that circumstances warranting the proceedings provided for by this act exist, shall, under his hand and seal of office, grant a board.

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2. The decision of the minister as to the granting or refusal of a board shall be final; and when a board is granted by the minister, it shall be conclusively deemed to be authorized by and to be in accordance with the pro- visions of this act, and no order shall be made or process or proceeding had or taken in any court to question the granting or refusal of a board or to review, prohibit, or restrain the establishment of such board or the proceedings thereof. NOTES.-Corresponds to section 6 of 1907 act, but the section has been recast and divided into two subsections. The time for granting or refusing a board is reduced from 15 days to 10 days. The special reference to railway disputes is, in conformity with the change made in section 5, omitted, and provision is added excluding the jurisdiction of any court to question or prohibit the establishment or proceedings of a board. In the Montreal Street Railway case (44 Quebec Reports (Superior Court) 350), it was held under the old section that while the minister's decision as to granting or refusing a board was final and could not be reviewed, nevertheless the board being an inferior court was subject to the supervision of the superior courts, even to the extent of inquiring into the validity of the application for the board and the facts connected with its establishment, and to the extent of prohibiting any investigation by it. In view of the nature and functions of such a board this state of the law is not considered desirable, and probably was not intended. The deputation of the trades and labor congress (on Jan. 6, 1914) asked amendments to meet the objections to this decision and to prevent nullification of the establishment of boards by reason of technical defects in the application or absence of compliance with the provisions of the act. Compare section 58 of industrialarbitration act, 1912, of New South Wales. More or less similar provisions are to be found in many modern statutes dealing with bodies such as a board of conciliation and investigation.

Section 73 now also gives the minister authority to establish a board, in the circumstances therein mentioned, even where there is no application from either party.

The shortening of the time for dealing with applications and the alterations made in section 68, old section 57 (as to notice of change in terms of employment) will, at least so far as the act is concerned, lessen the objection that delay occurs in taking proceedings under the act.

14. The board shall consist of three members, who shall be British subjects resident in Canada.

2. The party making the application shall, at the time of making the application, and the other party shall not later than five days after being requested so to do by the minister, each recommend the name of one person who is willing and ready to act as a member of the board, and the minister shall appoint such person a member of the board.

3. In any case where a party fails to duly make a recommendation at or within the time above provided, or within such extension of time as the minister on cause shown grants, the minister shall, as soon after such failure as possible, appoint a fit person to be a member of the board, and such member shall be deemed to be appointed on the recommendation of such party.

4. The members chosen on the recommendation of the parties may, within five days after their appointment, recommend the name of a person who is willing and ready to act as a third member of the board, and the minister shall appoint such person a member of the board.

5. If the members chosen on the recommendation of the parties fail to duly make a recommendation of a third member within the said period, or such extension thereof as the minister, on cause shown, grants, the minister shall as soon thereafter as possible appoint a fit person to be the third member of the board, and such member shall be deemed to be appointed on the recommendation of the two other members.

6. The third member shall be the chairman of the board.

NOTE. This section combines the provisions of section 7, 8, and 42 of the 1907 act in more orderly form. The words "resident in Canada are added in subsection 1. In subsection 2 there is a little change, calculated to further avoid delay, in requiring the applicants to name their member of the board at the time of making the application. This will, of course, not prevent the minister granting further time for doing so in accordance with subsection 3.

Section 11 of the 1907 act, providing that members of the board should have no pecuniary interest in the dispute, is omitted. Compare Erdman Act of the United States, which has no such restriction.

15. As soon as possible after the full board has been appointed by the minister, the registrar shall notify the parties of the names of the members of the board and the chairman thereof, and such notification shall be final and conclusive for all purposes.

NOTE.-Same as section 9 of 1907 act.

16. Every member of a board shall hold office from the time of his appointment until the report of the board is signed and transmitted to the minister, and

thereafter shall be subject to be again called into office for the purposes mentioned in section 28 of this act.

NOTE.-Section 10 of 1907 act amended by the addition of all the words after "minister." See section 28.

17. If a member of a board dies, or becomes incapacitated, or refuses or neglects to act, the vacancy shall be filled by appointing a successor in the manner provided for the appointment of such member.

NOTE. This takes the place of sections 12 and 48 (2) of 1907 act, which were, in part, duplicates.

18. Before entering upon the exercise of the functions of their office the members of a board, including the chairman, shall make oath or affirmation before a justice of the peace or other person authorized to administer oaths and affirmations that they will faithfully and impartially perform the duties of their office, and also that, except in the discharge of their duties, they will not disclose to any person any of the evidence or other matter brought before the board.

NOTE. Same as section 13 of 1907 act as amended by section 1, chapter 29, of 1910.

19. The department may provide the board with a secretary, stenographer, or such other clerical assistance as to the minister appears necessary for the efficient carrying out of the provisions of this act.

NOTE.-Same as section 14 of 1907 act.

FUNCTIONS, POWERS, AND PROCEDURE OF BOARDS.

20. Upon the appointment of the board the registrar shall forward or deliver to the chairman a copy of the application and affidavit verifying it and of the statement in answer, if any is received, and the dispute shown in such papers shall thereupon be deemed to be referred to the board, and the board shall forthwith proceed to deal therewith.

2. Should it at any stage of the proceedings be made to appear to the minister that it is necessary, in order to deal satisfactorily with the matters in dispute, that some other matter or matters involved in or incidental to those appearing in the application and statement in answer, if any, should also be referred to the board, the minister may under his hand and seal of office refer such matters to the board accordingly.

NOTE.-Subsection 1 is section 22 of 1907 act, made a little more complete and specific, and subsection 2 is new. The lack of a provision such as subsection 2 has been commented upon. The provision will, among other advantages, tend to prevent delay. Compare section 8 of 1910 act of Commonwealth of Australia.

21. In every case where a dispute is duly referred to a board it shall be the duty of the board to endeavor, in such manner as it deems most expedient, to bring about a settlement of the dispute, and to this end the board shall, in such manner as it thinks fit, expeditiously and carefully inquire into the dispute and all matters affecting the merits and the right settlement thereof; and the board may, either before, during, or after the taking of evidence, make all such suggestions and do all such things as it deems right and proper for inducing the parties to come to a fair and amicable settlement of the dispute, and it may at any time adjourn the proceedings for any period it thinks reasonable to allow the parties to agree upon terms of settlement.

NOTE.-Same as 23 of 1907 act, with some slight verbal changes, and giving a little more emphasis to the conciliatory functions of the board, which is in accordance with the present practice

22. If a settlement of the dispute is arrived at by the parties during the course of its reference to the board, a memorandum of the settlement shall be drawn up by the board in the form of an agreement between the parties and shall be signed by the parties in triplicate, and the board shall forward to the minister one of the triplicate agreements, together with a report upon the proceedings.

NOTE. Corresponds to section 24 of 1907 act, but provides that the settlement shall be drawn up in the form of an agreement and signed in triplicate so that each party may have a copy and another copy may be filed with the report. The reference to section 62 has been omitted, in accordance with the change made in old section 62; see new section 12.

23. If a settlement of the dispute is not arrived at during the course of its reference to the board, the board shall make a full report thereon to the

minister, which report shall set forth the various proceedings and steps taken by the board for the purpose of fully and carefully ascertaining all the facts and circumstances, and shall also set forth such facts and circumstances, and its findings therefrom, including the cause of the dispute and the board's recommendation for the settlement thereof according to the merits and substantial justice of the case.

NOTE.-Same as section 25 of 1907 act with slight verbal change.

24. The board's recommendation shall deal with each item of the dispute and shall state in plain terms, and avoiding as far as possible all technicalities what in the board's opinion ought or ought not to be done by the respective parties concerned.

2. Where the parties have agreed to accept and abide by the recommendation of the board, and wherever in any other case it appears to the board expedient so to do, its recommendation shall also state the period during which the proposed settlement should continue in force, and the date from which it should commence.

NOTE. Corresponds to section 24 of 1907 act, but the words "where the parties have agreed to accept and abide by the recommendation of the board" have been inserted, in order that the duration of the agreement or recommended arrangement shall in such case always be definitely fixed and stated.

25. The board's report and recommendation shall be made to the minister in writing, and shall be signed by such of the members as concur therein, and shall be transmitted by the chairman by registered letter to the register as soon as practicable after the reference of the dispute to the board; and in the same manner a minority report may be made by any dissenting member of the board.

NOTE. Same as section 27 of 1907 act.

26. Upon receipt of the board's report the minister shall forthwith cause the report to be filed in the office of the registrar and a copy thereof to be sent free of charge to the parties to the dispute, and to the representative of any newspaper published in Canada who applies therefor, and the minister may distribute or otherwise publish copies or a digest of the report, and of any minority report, in such manner as to him seems most desirable as a means of securing compliance with the board's recommendation. The registrar shall, upon application, supply certified copies, for a prescribed fee, to persons other than those mentioned in this section.

NOTE.-Same as section 28 of 1907 act, but with more comprehensive provision for publication of the report or a digest of it; the words "or otherwise publish and or a digest of" are added.

27. For the information of Parliament and the public, the report and recommendation of the board, and any minority report, shall, without delay, be published in the Labor Gazette, and be included in the annual report of the depart ment of labor to the Governor General.

NOTE. -Same as section 29 of 1907 act.

28. Where any question arises as to the meaning or application of, or as to anything relating to or connected with any recommendation made by the board, or any settlement agreement drawn up by the board under section 22 of this act, the minister, where he deems it expedient, may, on the application of either party or of his own motion, request from the chairman of the board an expression of the board's opinion upon such question, and the chairman shall upon receipt of such request reconvene the board, and the board shall as soon as practicable report to the minister its opinion upon such question.

NOTE. This section is new. The absence of such a provision has been commented upon. See Sir George Askwith's report on Canadian act, made to Board of Trade of Great Britain, December, 1912, page 13. There is a similar provision in the Erdman Act (1913) of the United States, section 2.

29. For the purpose of its inquiry, the board shall have all the powers of summoning before it, and enforcing the attendance of witnesses, of administering oaths, and of compelling witnesses to give evidence on oath or on solemn affirmation (if they are persons entitled to affirm in civil matters) and to produce such books, papers, or other documents and things as the board deems requisite to the full investigation of the matters into which it is inquiring, which are vested in any court of record in civil cases.