Province Turns to Little Used Industrial Inquiry Commission at York University

April 13 2018

The long road to a resolution of the six week long bitter strike of contract faculty at York University took a new twist today as the province appointed an Industrial Inquiry Commission to look into the dispute.   Here is the province’s formal announcement.
Well respected senior arbitrator and mediator, William Kaplan, has been appointed as a single commissioner to meet with the parties and examine the strike and assess the possibility of a resolution.
What Is an Industrial Inquiry Commission?
The power to appoint an Industrial Inquiry Commission is found in Section 37 of the Labour Relations Act.  That section read as follows:

37 (1) The Minister may establish an industrial inquiry commission to inquire into and report to the Minister on any industrial matter or dispute that the Minister considers advisable.

Composition and powers
(2) The industrial inquiry commission shall consist of one or more members appointed by the Minister and the commission shall have all the powers of a conciliation board under section 33.

Remuneration and expenses
(3) The chair and members of the commission shall be paid remuneration and expenses at the same rate as is payable to a chair and members of a conciliation board under this Act.

Section 33 of the Act grants Mr. Kaplan the authority to receive evidence and subpoena witnesses and generally to investigate and fact find as he deems necessary.

Industrial commissions date way back to the earliest labour relations legislation in Canada.  Students of labour history will know that MacKenzie King was the strongest advocate of government intervention in the form of mandatory conciliation and industrial disputes investigations.   The basic machinery of the modern day conciliation, mediation and investigation mechanism in collective bargaining legislation date to the early Railway Labour Disputes Act of 1903 and the Industrial Disputes Investigation Act of 1907.
King, the architect of that legislation, strongly believed that a full investigation into a labour dispute by a neutral third party appointed by the state and the subsequent public reporting of that investigation’s findings of the causes and possible ways to resolve the dispute would push the parties towards reasonable compromises and settlements.  Crucial to this theory was the requirement for the investigator’s report to be made public because King believed that the weight of public opinion (and anger) would be brought to bear on any party that was perceived to be acting unreasonably.
Parenthetically, lots has been written about this history, but the classic by my York colleagues Eric Tucker and Judge Fudge (Judy is now in England) called Labour Before the Law is a definite must read, as is An Impartial Umpire: Industrial Relations and the Canadian State: 1900-1911 by Paul Craven, yet another York colleague. 
Over time, MacKenzie King’s confidence in the power of public opinion to influence collective bargaining behaviour through reports of independent investigation inquiries made public wained.  Unlike in the old legislation, today’s Labour Relations Act does not require the Commission’s report to be made public, just that it be delivered to the Minister of Labour and the parties.
The Industrial Inquiry Commission is seldom used.  It was last used in Ontario in  2015 in the ugly strike at Crown Metal Packaging which had dragged on for 18 months.  Commissioner Morton Mitchnick submitted a report to the Minister which I do not believe was ever made public (if I am wrong about that, please let me know).   Before that, a Commission was last appointed in 2007.  This is an unusual move by the government, but one that allows it to say it is doing something without actually intervening to end the strike through Constitutionally suspect back to work legislation. 
Mr. Kaplan will begin by meeting with the parties, probably separately, at least at first, to develop a full understanding of the issues.   Although his job is to investigate and report on the York dispute, he will no doubt also look for opportunities to mediate and steer the parties toward a settlement if he thinks that is possible.
At the end of his investigation, Mr. Kaplan will issue a report to the Minister of Labour.  The statute gives him an initial 30 day window from the first meeting but also permits an extension of that time limit. Mr. Kaplan can make observations and findings of fact.  However, importantly, an  Industrial Inquiry Commission does not have powers to order the parties to settle or to make bargaining concessions.  Nor is he an arbitrator; he cannot draft a collective agreement and impose it on the parties.  The Commissioner’s powers are limited to investigation and reporting back to the Minister.
York responded to the appointment of Mr. Kaplan by calling on CUPE to return to work pending the investigation.   York is free to make that request, however no law requires CUPE or CUPE members to return to work.  The appointment of an Industrial Inquiry Commission does not terminate the strike.
The appointment of Mr. Kaplan could be useful in the sense of adding an experienced and fresh set of eyes to the problem.  He doesn’t have formal powers to order the parties to change their positions, but he does demand a level of respect and he can make his views clear if he believes one side or there other or both are acting unreasonably.   He can, as Premier McGuinty once phrased it, use his authority to figuratively “bang some heads together”.
So we watch, and we wait.