Seafarers' International Union of Canada
(Applicant)
v.
Kent Line Limited and the Attorney General of
Canada (Respondents)
and
Kent Line Limited (Applicant)
v.
Seafarers' International Union of Canada and the
Attorney General of Canada (Respondents)
Court of Appeal, Thurlow, Cattanach and Kerr
JJ.—Montreal, P.Q., March 28, 1972.
Labour relations—Canada Labour Code—Judicial review
of decisions of Labour Relations Board—Certification of
union as bargaining agent—Crew of ship—Ship's agent
ostensible employer—Board finding agent not actual
employer—Whether Board estopped from so finding—Date
of employees' membership in union—No evidence of change
in membership between dates of application and hearing.
The Canadian Labour Relations Board refused to certify
a union as bargaining agent under the Canada Labour Code
for the crew members of five ships of which Kent Line
Limited was agent on the ground that the crew members of
those ships were not employees of Kent Line Limited. The
ships were owned or under charter to Irving Oil Co. which
directed their operation and hired their masters who in turn
hired the crew. Kent Line Limited performed certain
agency functions for Irving Oil Co. but because of the way
it carried out its functions members of the ships' crews
could only be under the impression that they were
employed by Kent Line Limited.
Held, dismissing an application by the union to set aside
the decision of the Board under section 28 of the Federal
Court Act,
1. Kent Line Limited was not the employer of the crew
whether the word "employer" was given its ordinary
meaning or as defined in section 107(1) of the Canada
Labour Code.
2. Although Kent Line Limited was the ostensible
employer the Board was not bound to find that it was in
fact the owner when the facts were otherwise.
3. There was no factual basis to estop Kent Line
Limited from denying it was the employer.
Held also, an application by Kent Line Limited to set
aside the Board's certification of the union as bargaining
agent for the crew members of a sixth ship that was owned
and operated by the applicant must be dismissed. While the
certification was based on a finding that a majority of the
crew members were members of the union on the date of
the union's application rather than the date of the hearing,
there was nothing in the evidence to show that any material
change in personnel had taken place between those dates.
JUDICIAL review.
Joseph Nuss for Seafarers' International
Union of Canada.
Neil McKelvey and Ronald G. Lister for Kent
Line Limited.
A. C. Pennington for Attorney General of
Canada.
THURLOW J.—The first of these two proceed
ings under section 28 of the Federal Court Act
is an application to review and set aside a
decision of the Canada Labour Relations Board
refusing to certify Seafarers' International
Union of Canada (which I shall refer to as the
Union) under the Canada Labour Code as bar
gaining agent for a unit of employees of Kent
Line Limited including all unlicensed
employees employed aboard the vessels Irving-
stream, Irving Ours Polaire, Aimé Gaudreau,
H-1060 and H-1070. The ground for refusing
certification was that the crewmen of these
vessels were not employees of Kent Line Limit
ed. By the same decision the Board certified the
union as bargaining agent of a unit of
employees of Kent Line Limited comprising
unlicensed personnel employed by Kent Line
Limited upon the vessel Irvingwood and classi
fied as bosun, pumpman, A.B. (seaman), oiler,
chief cook, messman and mes sboy.
The basis of the attack on the refusal of the
Board to certify in respect of the crewmen of
the other five vessels was twofold. It was said
first that on the facts as found by the Board as
a matter of law Kent Line Limited was the
employer of the men in respect of whom certifi
cation was asked on all five of the vessels in
question and failing that at least in respect of
those on the H-1060 and H-1070. Secondly, it
was urged that even if Kent Line Limited was
not in fact the employer of these men it was
estopped by its conduct from showing that it
was not their employer.
The evidence shows, and the Board found,
that Kent Line Limited carries on business as a
ship's agent acting for various vessel operators
including what I shall refer to for convenience
as Irving companies, of which Kent Line Limit
ed is itself one, and that the operation of all six
of the vessels referred to is directed as a single
operation and governed by the supply and
transportation manager of Irving Oil Company,
who hires the masters and exercises what the
Board refers to as a considerable authority in
regard to masters generally. The Irvingwood is
owned and operated by Kent Line Limited and
the profits and losses of that operation come
home to that company. No issue arises as to
who is the employer of the unlicensed person
nel included in her crew. Of the other vessels,
Irvingstream is owned and operated by Irving
Oil Company. Irving Ours Polaire and Aimé
Gaudreau while owned by several Irving com
panies including Kent Line Limited, are and
have been for some years under bareboat chart
er to Irving Oil Company, which operates them
for its own account. In the case of each of these
ships some agency functions are carried out by
Kent Line Limited but the processing of
accounts of the operation is carried out by
Irving Oil Company itself. H-1060 and H-1070
are owned by Engineering Consultants Limited,
another Irving company, and are operated
under voyage charters to Irving Oil Company
which sometimes charters them to outside com
panies. In the case of these two vessels, as well,
Kent Line Limited carries out the same agency
functions but in addition it processes the
accounts for Engineering Consultants Limited.
The Board also found that, because of the
way in which Kent Line carried out its func
tions in respect of the six ships, the employees
in question could only be under the impression,
generally speaking, that they were employed by
Kent Line but it went on to express the view
that while the employees may have been under
that impression and the impression that Kent
Line ostensibly exercised control over them this
was not conclusive in the circumstances. It then
cited the fact that substantial control was exer
cised by Irving Oil over the employees of all the
vessels, that the operation of all six of them was
conducted as a single operation and the fact
that none of the other companies was represent
ed in the proceedings before it and it reached
the conclusion that Kent Line was not the
employer for collective bargaining purposes in
respect of the vessels other than the
Irvingwood.
In the view I take of the matter the finding of
the Board that Kent Line Limited is not the
employer of the personnel on these ships, other
than the Irvingwood, is plainly right and I can
see no error of law on the part of the Board in
reaching that conclusion, whether the word
"employer" as used in the relevant provisions
of the Canada Labour Code is regarded as
having its ordinary meaning or its meaning as
defined in section 107(1) of the statute as "any
person who employs one or more persons" or
as "the employer for collective bargaining pur
poses" as referred to in the reasons of the
Board, since there is, in my opinion, no differ
ence for present purposes among the three.
Save for the Irvingwood, none of these ves
sels was operated by Kent Line Limited, or for
its profit or for its account. Their operations
were not directed by Kent Line. Nor did Kent
Line have authority over anyone who did direct
such operations. The masters of these vessels
were neither appointed nor discharged by Kent
Line nor were they subject to direction or disci
pline by that company. Coming next to mem
bers of the crew while prospective members
were scanned in advance by Kent Line Limited
as agent for the operator the actual hiring was
not done by Kent Line but by the masters who,
in this, were not subject to direction by Kent
Line to hire men of whom it had approved. Nor
was the scale of wages to be paid such crewmen
set by Kent Line. Kent Line had no authority to
discharge such crewmen. While, as agent for
the operators, Kent Line advanced money to
the masters to pay the men, they were paid by
the masters who then accounted, not to Kent
Line, but to the operators, for the money
expended. In the case of the H-1060 and
H-1070 this accounting was indeed made to
Kent Line but in its capacity as agent for the
operator rather than as operator itself. The
direction of the work of the crewmen was not
carried out by Kent Line but by the masters,
who were not responsible therefor to that
company.
To my mind these features severally and col
lectively point to the conclusion that Kent Line
was not the employer of the men in question
and as I see it there is really nothing in the
evidence pointing to the contrary conclusion.
The main point of the applicant's attack on
this finding was that all ostensible or apparent
activity with respect to employer-employee
relations for all the vessels was carried out by
Kent Line, that Kent Line carried out the
activities which characterize an employer and
that to the employees and the world Kent Line
was the employer and was therefore the
employer within the meaning of the relevant
provisions of the Canada Labour Code. In view
of the way in which seamen were hired by the
masters and signed on I am not persuaded that
it can properly be affirmed that all apparent
activity was in fact carried out by Kent Line,
but even accepting that employees could and
may have been under that impression it seems
to me that to hold that this inference from
apparent activity must as a matter of law
govern the result is not well founded. It appears
to me to mean that in this field the appearance
of facts is to be preferred to the realities. The
realities, as I see them, are that, notwithstand
ing appearances, the men were not engaged by
Kent Line but by the master for the account of
whoever was the operator of the particular
vessel and that the operation of the vessels as
well was not directed by Kent Line but by the
supply and transportation manager of Irving Oil
Company. Moreover, the facts that these Irving
companies were admittedly all associated with
one another and that the operations of all six
ships were directed as a single operation to my
mind adds nothing to help the applicant since
the person who directed the operations was not
an official or employee of Kent Line and noth
ing that he did in the operation of the vessels,
other than the Irvingwood, can, as I see it, be
regarded as having been done on behalf of Kent
Line. In the view I take of the matter whatever
weight in the circumstances was to be attributed
to the appearances was a matter for the Board,
that the Board was not bound to have regard
only for the appearances and to reject the reali
ties and that the Board's finding was plainly one
that was open to it on the material before it. I
would therefore reject the applicant's conten
tion.
Turning now to the contention that Kent Line
is estopped from denying that it is the employer
of these men I am inclined to the view that a
person cannot become the employer within the
meaning of the relevant provisions of the
Canada Labour Code simply by reason of his
being estopped from denying it, that to obtain
certification the union applying therefor must
establish to the satisfaction of the Board the
fact itself on which the right to certification
depends and that it would be an excess of
jurisdiction for the Board to certify on no
firmer basis than that the respondent to the
application was somehow estopped as between
itself and the applicant union from denying that
it was the employer. As I see it, however, the
present case does not require any concluded
opinion on this question since, to my mind, no
case for applying the principle of estoppel has
been made out. Assuming for this purpose that
the manner in which Kent Line conducted its
business can be treated as importing a represen
tation that it was the employer of the crewmen
in question there is in my view no basis in the
evidence for concluding that the appellant ever
dealt with the Seafarers' International Union of
Canada or that such representation was ever
made to it, whether with, or without the inten-
tion that the union should act upon it. Nor am I
persuaded that anything capable of being
regarded as an alteration of position or preju
dice resulting from reliance on any such
representation has been made out either from
the point of view of the union, which now
asserts the estoppel, or from the point of view
of the particular seamen in question, whether
regarded collectively or individually. The con
tention in my view is therefore not sustainable.
In my opinion the motion to review fails and
should be dismissed.
The other application, that of Kent Line Lim
ited, is to review and set aside the certification
by the Board of the Union as bargaining agent
for the unit of employees of Kent Line compris
ing unlicensed personnel employed on board the
Irvingwood. The basis of this application is
alleged error on the part of the Board in finding
that a majority of the personnel of the unit as
certified were members in good standing of the
Union in that the Board's determination was
made as of August 4, 1971, the date of the
Union application, rather than as of the date of
the hearing, which took place on October 18
and 19, 1971.
In the course of argument various dates were
discussed on which it might be material,
depending on the circumstances, to determine
the question but I do not understand it to have
been put forward on behalf of the applicant that
it was incumbent on the Board to consider the
matter as of any time later than the hearing on
October 18 and 19, 1971, and an issue arose as
to whether or not this was the date in respect of
which the Board's determination was made.
Counsel for the applicant submitted first that it
was to be assumed that the Board followed
Rule 15 of the Rules of Procedure of the
Canada Labour Relations Board and did not
find it necessary to consider the matter as of
any date later than the date of the application
for certification and he went on to submit that
the rule is ultra vires. It reads as follows:
15. For the purposes of section 7 of the Act, a member in
good standing of a trade union shall be deemed by the
Board to be a person who, in the opinion of the Board, is at
the date of the application for certification
(a) a member of the union; and
(b) has, on his own behalf, paid at least one month's
union dues for or within the period commencing on the
first day of the third month preceding the calendar month
in which the application is made and ending upon the date
of the application; or
(c) where he has joined the union within the period
mentioned in paragraph (b) has, on his own behalf, paid
the union application or admission fee in an amount at
least equal to one month's union dues.
It will be observed that by its terms this rule
applies only for the purposes of section 7 of the
former Industrial Relations and Disputes Inves
tigation Act, now section 113 of the Canada
Labour Code, and, whether the rule is ultra
vires or not, there does not appear to me to be
any reason to assume that the Board applied it
for the purposes of making its determination
under section 115.
Secondly it was said that the only evidence of
the membership of the crew of the Irvingwood
put before the Board was Exhibit 29, a portage
roll for the month of August 1971, which
showed the names of members of the crew of
the Irvingwood as at August 4, 1971, and that
this would not serve as a basis for a conclusion
as to the membership of the crew at the time of
the hearing. The document in question does,
however, bring the list at least to the end of
August and thus to about seven weeks prior to
the hearing. The following is reported in the
transcript as having taken place at the com
mencement of the hearing; the chairman
speaking:
The Company also alleges that a majority of the
employees in the bargaining unit, and particularly a majority
of the employees employed on the Irvingwood are not
members in good standing of the Applicant; and even if
investigation should reveal a prima facie majority it asks for
a secret ballot.
The Board at the present time does not have information
on the remaining facts to determine just what the situation
is and this will have to be decided by the Board after
hearing the evidence. On the Irvingwood there is a prima
facie majority, and a decision will have to be made on this
after hearing the evidence.
Though ample opportunity was offered to
counsel appearing for Kent Line, apart from
Exhibit 29, no evidence was offered on the
subject indicating that any change had occurred
after the end of August.
In its judgment rendered on January 18,
1972, the Board said at page 352:
The Board finds that a unit of employees of the Respondent
employed upon this vessel comprised of employees in the
classification of the following unlicensed personnel: bosun,
pumpman, A.B. (seaman), oiler, chief cook, messman, and
messboy, is appropriate for collective bargaining and that a
majority of employees in the said unit are members in good
standing of the Applicant. An Order will therefore issue
certifying the Applicant as bargaining agent for the unit of
employees of the Respondent heretofore described who are
employed upon the vessel Irvingwood.
and the Board's order dated February 8, 1972
recites:
AND WHEREAS, following investigation and considera
tion of the application and of the submissions of the parties
concerned, the Board has found the Applicant to be a trade
union within the meaning of the said Code and has deter
mined the unit described hereunder to be appropriate for
collective bargaining and has satisfied itself that a majority
of employees of the said employer comprising such unit are
members in good standing of the applicant trade union.
It will he observed that in both the decision
and in the order the present tense is used with
reference to the satisfaction of the Board that a
majority of the personnel of the unit were mem
bers of the Union.
Taking the statement made by the Chairman
of the Board at the commencement of the hear
ing as referring to the situation on August 4,
1971, as counsel for Kent Line suggested, and
having regard to what is shown by Exhibit 29
with respect to the situation at the end of
August 1971, having regard also both to the
opportunity afforded to the parties to show that
material changes had occurred up to the time of
the hearing, as well as to the failure of the
parties in whose interest it might have lain to
establish such changes, if indeed any had
occurred, it does not appear to me that it can be
said that the Board did not have before it
material on which it could infer that no material
change had taken place in the personnel of the
bargaining unit between August 4 and the date
of the hearing. I think the Board was entitled to
assume that the situation had remained static
when parties having an interest to protect did
not produce evidence of material change. Nor
do I see any reason to think, on the material
before the Court, that the Board did not in fact
consider the situation both at the time of the
application and at the time of the hearing as
well as in the intervening period. At the hearing
before the Board both parties asserted the date
of the application as the only material date but
even that does not persuade me that the Board
did not address itself to the question of the
situation between that time and the time of the
hearing as well as at the time of the hearing
itself.
In this view the applicant's case is not made
out.
I would dismiss the motion.
* * *
CATTANACH J.—I agree with the reasons
given by my brother in the chair for dismissing
the application for review with respect to the
finding by the Board that Kent Line Limited is
not the employer except in connection with the
vessel, Irvingwood, to which there is little that I
can usefully add other than to point out that I
accept as a premise that the duty of the Board
is to certify the actual employer for bargaining
purposes.
Obviously the Board posed for itself the
question—was Kent Line Limited that employ
er and has answered that question in the
negative.
In my opinion there was ample evidence
before the Board upon which it could so find as
a question of fact nor, in my view, did the
Board misdirect itself on the question of law as
to what constitutes the relationship of master
and servant.
It is also my opinion that the doctrine of
estoppel is not applicable in the circumstances
peculiar to this particular application for
review, accepting, as I do, the premise that the
obligation of the Board is to certify the actual
employer. This I conceive to be the scheme of
the Canada Labour Code from which it follows
that such is the statutory obligation of the
Board. Estoppel cannot operate to preclude a
statutory duty.
Further the essential elements of estoppel are
not present. There was no representation direct
ed to the Seafarers' International Union that
Kent Line Limited was the employer. It is
debatable if this representation was made to the
individual seaman and even assuming that it
was, then there was no financial detriment to
the seamen or a detriment measurable in mone
tary terms.
It is for these briefly expressed reasons that I
concur in the dismissal of the application.
As to the application by Kent Line Limited to
set aside the finding of the Board that a majori
ty of the unlicensed personnel were employed
by Kent Line Limited on board the Irvingwood
should be set aside on the ground that the
Board erred in law in concluding that such
majority existed as at the date of the application
for certification rather than as at the date of the
hearing of the application, I concur that this
application for review must also be dismissed.
At the outset of the hearing the chairman of
the Board announced that prima facie such a
majority existed, as at the date of the applica
tion and that evidence should be heard to rebut
that.
It was open to the applicant to do so.
If my recollection of the transcript of evi
dence before the Board is correct, the applicant
did not take advantage of the opportunity to
adduce evidence to establish that a different
situation prevailed at the date of the hearing.
In my view it must be assumed not only that
the Board concluded that the prima facie case
as at the date of the application that there was a
majority had not been rebutted, but also that in
the circumstances of this particular case the
situation with respect to employees did not
materially change up to the date of the hearing
for the reason that the Board in deciding as it
did, must be presumed to have acted on proper
principles and considered what it was obliged to
consider.
It is for these reasons, also briefly expressed,
that I concur in the dismissal of this application
as well.
* * *
KERR J.—In my opinion it has not been
shown that, in determining that Kent Line Lim
ited was not the employer of the unlicensed
employees employed aboard the 5 vessels
Irvingstream, Irving Ours Polaire, Aimé Gau-
dreau, H-1060 and H-1070, the Board failed to
make a proper appreciation of the evidence or
erred in law or otherwise. It appears to me that
the Board applied appropriate tests in determin
ing whether an employer-employee relationship
existed between Kent Line Limited and the
employees concerned on those vessels and that
the Board had due regard to the meaning and
concept of the word "employer" as used in Part
V of the Canada Labour Code; and that there
was ample evidence to support the Board's
determination.
It is also my opinion that Kent Line Limited
was not estopped from taking the position
before the Board that it was not the employer
of the said employees or from offering evidence
in support of that position, and the Board was
entitled to take that evidence into consideration.
It seems to me that the estoppel rule should not
be applied where the effect of its application
might be to cause the Board to find that Kent
Line Limited was the employer if in fact it was
not the employer and evidence was available
and tendered to prove that such was the case,
for an application of the estoppel rule leading to
that result would go a long way to prevent the
accomplishment of the objectives of the collec
tive bargaining provisions of the Canada
Labour Code.
On what is before this Court I am unable to
find grounds upon which the Court should set
aside the Board's said determination. The
application should be dismissed.
I also agree that the application of Kent Line
Limited should be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.