A-203-74
Voyageur Inc. (Appellant)
v.
Syndicat des chauffeurs de Voyageur Inc.
(CNTU) (Applicant) (Respondent)
and
Union of Transport Drivers, Warehousemen and
General Workers, Local 106 (Intervener)
(Mis-en-cause)
and
Canada Labour Relations Board and the Attorney
General of Canada (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Hyde
JJ.—Montreal, March 25, 1975.
Judicial review—Canada Labour Relations Board ordering
holding of representation vote before bargaining unit estab-
lished—Whether "decision" subject to review—Federal Court
Act, s. 28.
The decision of the Canada Labour Relations Board, in
ordering a representation vote, is a decision of an administra
tive nature not required by law to be made on a judicial or
quasi-judicial basis and can be validly made without the parties
having had an opportunity to be heard. Consequently the Court
cannot entertain the application for judicial review under sec
tion 28 of the Federal Court Act.
APPLICATION for judicial review.
COUNSEL:
Guy Dancosse for Voyageur Inc.
Maurice Laplante for Syndicat des chauffeurs
de Voyageur Inc.
Gino Castiglio for Union of Transport Driv
ers, Warehousemen and General Workers.
François Mercier for Canada Labour Rela
tions Board.
Bernard Caron for Canadian Brotherhood of
Railway, Transport and General Workers.
SOLICITORS:
Pouliot, Mercure & Cie, Montreal, for Voya-
geur Inc.
Laroche, Saint-Arnaud & Cie, Montreal, for
Syndicat des chauffeurs de Voyageur Inc.
Cutler, Langlois & Castiglio, Montreal, for
Union of Transport Drivers, Warehousemen
and General Workers.
Stikeman, Elliott, Tamaki, Mercier and
Robb, Montreal, for Canada Labour Rela
tions Board.
Caron and Boisvert, Laval, for Canadian
Brotherhood of Railway, Transport and Gen
eral Workers.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: An application was made under
section 28 of the Federal Court Act to set aside a
decision made by the Canada Labour Relations
Board. By this decision the Board, which had
before it an application for certification, ordered
that a representation vote be held within the bar
gaining unit described in the application for
certification.
This decision is challenged for the following
reasons:
(1) it is alleged that in making it, the Board
found unlawfully and by implication that the
bargaining unit described in the application was
a unit that was qualified to negotiate; and
(2) the Board's decision is unlawful so far as it
should not be thus interpreted, because the
Board having before it an application for certifi
cation is not empowered to order a vote within
the unit described in the application before
establishing that this unit is qualified to
negotiate.
We are all of the opinion that the Board, in
ordering that a vote be held, has not found that the
proposed bargaining unit was qualified to negoti
ate. To the extent that the application is directed
against such a decision, therefore, it must accord
ingly be dismissed because it is directed against a
non-existent decision.
The question remains as to whether the Board
could, under the circumstances, order that a vote
be held within a unit that it had not yet established
as being a unit that was qualified to enter into
collective bargaining. It is not proper for us to
express an opinion on this difficult problem
because it seems to us that, even if the Board had
exceeded its powers by ordering a vote, the
application which we have before us should
nonetheless be dismissed.
Thus, under section 28 of the Federal Court
Act, the Court of Appeal does not have the power
to review or set aside a "decision or order of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis". In our
opinion, the decision to order a representation vote
can be validly made without the parties having had
an opportunity to be heard, and it does not have
any of the other essential characteristics of judicial
decisions. Consequently, this is a decision that does
not lie within our jurisdiction under section 28.
For these reasons, this application will 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.