A-15-78
Canadian Arsenals Limited (Applicant)
v.
Canada Labour Relations Board (Respondent)
and
Public Service Alliance of Canada (Mis -en-
cause)
Court of Appeal, Pratte and Le Damn JJ. and Hyde
D.J.—Montreal, September 20; Ottawa, Decem-
ber 11, 1978.
Judicial review — Labour relations — Canada Labour
Relations Board denied request for hearing that was included
with applicant's written submissions — Order rendered with
signature of Chairman of the Board only and with no indica
tion of the names of other members of the Board — Whether
order rendered by Chairman alone and hence void — Whether
order vitiated by Board's refusal to grant request for hearing
— Canada Labour Code, R.S.C. 1970, c. L-1, s. 115
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This section 28 application is against a decision of the
Canada Labour Relations Board which certified the mis -en-
cause Union as the bargaining agent for a group of applicant's
employees. Applicant maintains that the decision a quo is void
because it was rendered by the Chairman of the Board alone.
Its argument rests solely on the facts that the disputed order
bears the signature of the Chairman alone and does not indi
cate the names of the other members of the Board who may
have participated in the decision. Even though the Board had
received written statements, applicant maintains that the order
was vitiated by the Board's refusal to hold the hearing request
ed by applicant before rendering the order.
Held, the application is dismissed. It cannot be inferred from
the facts that an order which, from its wording, appears to be
an order of the Board, is in fact only a decision of the
Chairman. The Board had a duty not to rule without providing
applicant an opportunity to present its arguments. Applicant
was given such an opportunity. The Board was not required to
hold a hearing merely because applicant requested a hearing
and the points at issue were questions of fact. The application
cannot succeed on the basis of insufficient evidence because it is
clear from a perusal of the record that there was evidence on
which the Board could reasonably base its decision. In the
absence of legislation to the contrary, courts of law, quasi-judi
cial and administrative bodies are not required to give reasons
for their decisions. The mere fact that an administrative body is
subject to the supervisory power of the Federal Court of Appeal
does not have the effect of placing that body under an obliga
tion to give reasons for its decisions.
APPLICATION for judicial review.
COUNSEL:
P. J. Perreault for applicant.
J. V. O'Donnell, Q. C. for respondent.
P. C. LaBarge for mis -en-cause.
SOLICITORS:
Perreault & Archambault, Montreal, for
applicant.
Lavery, Johnston, O'Donnell, Clark, Carrière,
Mason and Partners, Montreal, for respond
ent.
Honeywell, Wotherspoon, Ottawa, for mis -en-
cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application, made pursuant to
section 28, is against a decision of the Canada
Labour Relations Board which certified the mis -
en-cause Union as the bargaining agent for a
group of applicant's employees.
Applicant maintains first, that the decision a
quo is void because it was rendered by the Chair
man of the Board alone.
According to the Canada Labour Code, R.S.C.
1970, c. L-1, it is the Board, a body for which a
quorum of three members is fixed by section 115,
which has the power to certify a union as a bar
gaining agent. There is therefore no doubt that the
decision a quo is void if, as applicant maintains, it
was rendered by the Chairman of the Board alone,
and it must therefore be determined whether there
is any basis for this contention. It rests solely on
the following two facts: the disputed order bears
the signature of the Chairman alone and does not
indicate the names of the other members of the
Board who may have participated in the decision. I
do not consider that it can be inferred from these
two facts that an order which, from its wording,
appears to be an order of the Board,' is in fact
only a decision of the Chairman. Because of this, I
would dismiss the first argument.
' The conclusion of the order begins with the following
words:
"ACCORDINGLY, the Canada Labour Relations Board
hereby orders that ...".
Counsel for the applicant further maintained
that the order was vitiated by the refusal of the
Board, before rendering it, to hold the hearing
requested by applicant. In order to be in a position
to assess the weight of this argument, it is neces
sary to review the circumstances in which the
disputed order was made.
On November 7, 1977 the mis -en-cause Union
asked the Board to certify it as the bargaining
agent for security officers (including sergeants and
lieutenants) employed by applicant. On November
10, the Board wrote applicant telling it of this
application and advising it that it would soon be
receiving a visit from an investigator. In this letter,
the Board stated the nature of the information
needed by the investigator and continued:
[TRANSLATION] Furthermore, if the employer believes that a
classification or position is not appropriate for inclusion in or
exclusion from the bargaining unit proposed by applicant, it
must give the following information regarding each of these
positions or classifications:
1. the classification or title of the position;
2. the reason why the employer considers the classification or
position is not appropriate for inclusion in or exclusion
from the bargaining unit;
3. the details of the duties and responsibilities of the classifi
cation or position, in support of the foregoing.
Since the Board is empowered to determine which unit is
appropriate for collective bargaining on the basis of the written
observations concerning the duties of the position, without
necessarily holding a hearing, it needs full, accurate and
detailed information so that all the parties in question are fully
informed. Please be advised that if the employer does not
provide the investigator with such information, we will consider
that he does not object to inclusion of the classifications or
positions in question in the proposed bargaining unit, and
inclusion of such classifications or positions in the proposed
bargaining unit will be considered appropriate by the Board.
On November 25, an officer of applicant wrote
the Board a letter in which he stated his objection
to inclusion of certain employees, the lieutenants,
in the proposed bargaining unit:
[TRANSLATION] In any case, if the security officers are
"employees" and must be grouped in the applicant union, the
employer is of the opinion that the security lieutenants should
be excluded from the security officers' bargaining unit, inter
alia because they are part of management and because their
inclusion would place them in a position of conflicting loyalties
between the employer and the security officers, in particular for
the following reasons:
(a) it is the lieutenant who organizes, directs and supervises
in all respects the operations, the conduct and the work of
security officers working on his team;
(b) when the security chief is not present on a given team, it
is the lieutenant who has the responsibility of taking and in fact
takes disciplinary measures, such as written notices, suspen
sions and "dismissals", affecting security officers working on
his team;
(c) at regular and specific intervals, lieutenants take part
with the security chief in meetings where guidelines for conduct
and operating policies of the security service are discussed,
developed, established and reviewed;
(d) in matters of hiring and promotion, the lieutenant is a
member with the security chief of a committee responsible for
interviewing, evaluating and selecting one or more applicants;
(e) the lieutenant prepares a periodic evaluation of the secu
rity officers working on his team for purposes of accepting or
rejecting an officer during his trial period, and subsequently,
for the purposes of promotion, demotion or even dismissal;
(f) the lieutenant is the employer's representative on his
work team and, in keeping with this jurisdiction, receives and
resolves complaints by security officers on his team;
(g) if the union is certified to represent security officers, the
lieutenant will be the employer's representative who will deal
with grievances at the initial stage of the grievance procedure,
and who will be required, in the great majority of cases, to
justify its decision and appear as the employer's principal
witness before any eventual adjudication tribunal;
(h) in view of this participation by the lieutenant in manage
ment, this position of conflicting loyalties and the requirements
of industrial peace it is necessary that he be excluded from the
security officers' bargaining unit.
This letter concluded with the following para
graph:
[TRANSLATION] Furthermore, the employer asks the Canada
Labour Relations Board to hold a hearing during which it will
be in a position to make verbal representations and present
evidence on all matters affected by this intervention.
The Board acknowledged receipt of this letter on
December 1:
[TRANSLATION] We acknowledge receipt of the reply of
Canadian Arsenals Limited to the aforementioned application.
We note that a hearing was requested.
When a hearing is requested and granted, or when the Board
orders one to be held, notice of the time and place of that
hearing is sent to the parties involved. When no hearing is held,
the Board bases its decision on the written statements of the
parties and the results of such examinations and inquiries as the
Board deems necessary.
The Board then provided the Union with the
letter received from applicant and documentary
evidence which the latter had given the investiga
tor in order to enable the Board to determine the
nature of the duties performed by the lieutenants.
The Union replied as follows to the employer's
representations:
[TRANSLATION] 3. Thirdly, the employer asked that the lieu
tenants be excluded from the proposed bargaining unit because
they are part of management and there is a possibility of
conflicting loyalties between the employer and the security
officers.
We should note here that we strongly doubt that the lieutenants
of the security force can objectively be regarded as participat
ing in management. These doubts are based in part on the
organization chart provided by the employer and the position of
the lieutenants on the said chart.
It should be noted that in the certification which the Alliance
already holds, employees who are on the same administrative
level as the chief of the security force are included in the
bargaining unit. This inclusion was made pursuant to an objec
tion by the employer and a decision of the board following a
hearing (Case C-110, ref. Dl, vol. 5, pp. 5).
In our opinion, the lieutenants of the security force act as team
leaders and their authority to organize, direct and supervise the
operation and the work of the officers must be seen in this
perspective.
According to the information received, the employer's state
ment in paragraph (b) of its letter is not an accurate reflection
of the reality, because the lieutenant only has the responsibility
to recommend disciplinary action; in cases of disciplinary
action against employees in the present bargaining unit, it is the
departmental manager, jointly with the personnel manager,
who signs the disciplinary notices.
We do not consider that the employer is giving a correct
interpretation to the facts in its paragraph (c). In reality, the
only purpose of the meetings mentioned is to decide on the most
effective means of operating the security service in accordance
with policies and procedures already laid down at a higher
level.
We do not dispute the employer's statement in paragraph (d).
We think it is quite normal for a person to participate in the
selection of officers who are going to work on his team.
However, we consider that this is not a reason for excluding the
lieutenants. The same comments apply with respect to para
graph (e) of the employer's letter.
Paragraphs (f) and (g) assume a grievance procedure which
does not exist at present and which is the subject of negotia
tions between the employer and the bargaining unit.
It may be assumed that the involvement of the lieutenants in
the grievance procedure depends on the board's decision wheth
er to exclude them from the bargaining unit. At this point, we
ask the Board to consider the awkwardness of the procedure
which would result from excluding the lieutenants from the
bargaining unit.
First, it would have the effect of involving the same person at
the complaint stage, which precedes the grievance, and the first
level. Then, assuming that each level of management becomes
involved in the procedure, we would end up with a five-level
procedure before adjudication, and this would be much too
clumsy and too long. The present procedure, which the parties
have used for nearly four years in the other bargaining unit,
consists of only three levels before adjudication.
For our part, we submit that the exclusion of the lieutenants
from the bargaining team would have a harmful effect on the
team spirit and the good will which at present exists between
the lieutenants and their officers and sergeants. Once again, we
ask that the Board take the employees' wishes into
consideration.
On December 8, the Board wrote counsel for the
applicant to tell him of the representations
received from the Union. The next to last para
graph of this letter read as follows:
[TRANSLATION] If you have any further comments to make
on receipt of this documentation, I would ask you to make them
directly to Ottawa, attention Mr. G.A. Lane, and to send me a
copy.
On December 19, counsel for the applicant
wrote the Board and responded to this invitation as
follows:
[TRANSLATION] The employer has received and analyzed
the points made in the Alliance's objection, and maintains the
points made in its intervention as well as its request for a
hearing in which it will be in a position to make verbal
representations and present evidence on all the points contained
in the said intervention.
On December 29, the Board - approved the
Union's application for certification and dismissed
applicant's objection to the lieutenants forming
part of the bargaining unit.
In the submission of Mr. Perreault, counsel for
the applicant, the Board should have held a hear
ing before deciding, or at least obtained further
evidence through its investigator. Mr. Perreault
admitted that, in theory, the Board was not
required to hold a hearing before making a
decision. 2 However, he argued that the Board had
such an obligation in the case at bar because, first,
applicant had requested a hearing, and because,
secondly, the questions at issue were questions of
fact disputed on both sides. By not holding a
hearing in such circumstances, he maintained, the
Board acted contrary to the principles of natural
justice and its decision should therefore be
quashed.
I am not persuaded by this argument. The
Board had a duty not to rule in the case at bar
without providing applicant with an opportunity to
2 See Hoffman-La Roche Ltd. v. Delmar Chemical Ltd.
[1965] S.C.R. 575; Komo Construction Inc. v. Commission des
relations de travail du Québec [1968] S.C.R. 172; Durham
Transport Inc. v. International Brotherhood of Teamsters
Local 141 (1978) 21 N.R. 20.
present its arguments. Applicant was given such
an opportunity and has only itself to blame if it did
not make full use of it. The Board could, of course,
have held a hearing; but it was not required to do
so merely because applicant requested a hearing
and the points at issue were questions of fact.
Indeed, in my opinion, the only case where "natu-
ral justice" imposes on the Board an obligation to
hold a hearing before a decision is where the
hearing is necessary in order to enable the parties
to present their arguments (assuming such a situa
tion could arise). That is not the situation here.
The Board therefore did not act unlawfully in
failing to comply with applicant's request for a
hearing. Moreover, counsel for the applicant rec
ognized this by implication when, in argument, he
admitted that his client could have no significant
grievance if, instead of holding a hearing, the
Board had obtained further evidence through one
of its investigators. If that is so, then in my view
applicant's real grievance is not that the Board
decided without holding a hearing: rather, that it
decided on the basis of insufficient evidence. I
would add that, even in terms of this grievance,
applicant's application cannot succeed because it is
clear from perusing the record that there was
evidence on which the Board could reasonably
base its decision.
Applicant's final submission is that the Board
acted unlawfully in failing to give reasons for its
decision. According to applicant, by acting in this
manner the Board indirectly placed itself beyond
the supervisory power possessed by the Federal
Court of Appeal under section 28.
This argument must also be dismissed. In the
absence of legislative enactments to the contrary,
courts of law are not required to give reasons for
their decisions. 3 The same rule applies to adminis-
3 See Macdonald v. The Queen [1977] 2 S.C.R. 665, where
Laskin C.J., speaking for the Court, said at p. 672:
Mere failure of a trial judge to give reasons, in the absence of
any statutory or common law obligation to give them, does
not raise a question of law.
trative or quasi-judicial bodies. 4 The mere fact
that an administrative body is subject to the super
visory power of the Federal Court of Appeal does
not have the effect of placing that body under an
obligation to give reasons for its decisions.
For these reasons, I would dismiss the
application.
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I concur.
4 See M.N.R. v. Wrights' Canadian Ropes Ltd. [1947] 1
D.L.R. 721, at pp. 731 and 732, and Proulx v. Public Service
Staff Relations Board [1978] 2 F.C. 133, at p. 141; the recent
decision of the Supreme Court of Canada in Northwestern
Utilities Limited v. The City of Edmonton [1979] 1 S.C.R.
684, also contains an interesting passage on this point.
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.