A-627-78
In re an order of the Canada Labour Relations
Board and in re National Association of Broad
cast Employees and Technicians
Court of Appeal, Urie J., Kelly and Kerr D. JJ.—
Toronto, May 16 and June 27, 1979.
Judicial review — Labour relations — Certification
Application to set aside Canada Labour Relations Board's
order of January 6, 1978 purporting to revoke NABET's
certification orders for two bargaining units, and certifying it
for a consolidated unit — Board certified two units on April
27, 1977, with reasons, because of an application for declara
tion of single employer — Board later initiated reconsideration
of the matter of number of bargaining units, and made the
order subject to the present application — Whether the one
year period required before an application pursuant to s. 137
of the Canada Labour Code is to be calculated from the date
of NABET's original certification or from the date of the
subsequent order of January 6, 1978 — Canada Labour Code,
R.S.C. 1970, c. L-1, s. 137 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
This application is to set aside so much of an order of the
Canada Labour Relations Board dated January 6, 1978, as
purports to revoke the certification orders of NABET, for two
bargaining units, dated April 27, 1977, and certifying it for a
single unit of the employees of the two divisions of the com
pany. A companion application seeks to set aside the Board's
order refusing applicant's application under section 137 of the
Canada Labour Code for revocation of the certification orders
of NABET for certain employees of Western Ontario Broad
casting Limited, CHYR Division and Essex Cable TV Division.
NABET applied to the Board for certification for all employees
of CHYR Radio and of Essex Cable TV, excluding certain
specific employees. On April 27, 1977, the Board issued two
certificates. The Board also gave its reasons, with respect to an
application, pursuant to section 133, for a declarà tion of single
employer why two bargaining units were appropriate for collec
tive bargaining. On December 6 and 7, 1977, the Board, after
giving notice, heard submissions on an application initiated by
the Board to consider whether the two bargaining units should
be consolidated. Applicant's application made on May 25, 1978
for an order revoking NABET's certification was dismissed
August 25, 1978. The only issue is whether the one year period
which must run before an application under section 137 of the
Canada Labour Code can be made is calculated from
NABET's original date of certificate (April 27, 1977) or from
the date of a subsequent order of the Board designating
NABET as the bargaining agent of the consolidated bargaining
unit (January 6, 1978).
Held, the applications are dismissed. The Canada Labour
Relations Board had the right to vary its own order, and it
follows, from the jurisprudence, that it was entitled to revoke
earlier certificates and certify the same union for the employees
of the single employer. No question of unfairness could arise
since the parties were notified and were heard. The Board was
correct in determining that the date of the second certificate,
January 6, 1978, was the date from which the timeliness of an
application under section 137(2)(b) is to be calculated. Since
the new certificate is not referable to the previous certificates
and since, in any event, those certificates no longer exist
because of their revocation, the time for purposes of section
137(2)(b) of the Code should logically run from the date upon
which the certificate was granted. It is not until that date that
the union had any right to bargain with Western Ontario
Broadcasting Limited, which had not been the employer in
either of the prior certificates. Section 119, which gives the
Board the right to rehear the original application or to continue
the hearing of that application and to rescind, amend, alter or
vary the previous order in any way, does not require, either
expressly or by implication, that the date of the amending or
new order be that of the order which it amends or replaces. In
order for the applicant to succeed, and for this Court to
intervene, the Board must be shown to have acted beyond its
jurisdiction in selecting the date that it did. The Board did not
lack jurisdiction.
APPLICATIONS for judicial review.
COUNSEL:
R. E. Barnes, Q.C. for Victor Lehan.
I. G. Scott, Q.C. for Canada Labour Rela
tions Board.
SOLICITORS:
Wilson, Barnes, Walker, Montello, Beach &
Morga, Windsor, for Victor Lehan.
Cameron, Brewin & Scott, Toronto, for
Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 application was argued
together with its companion application between
the same parties under Court No. A-588-78. The
latter seeks to set aside the decision or order of the
Canada Labour Relations Board dated August 25,
1978, refusing an application under section 137 of
the Canada Labour Code, R.S.C. 1970, c. L-1,
brought by the applicant herein for revocation of
the certification of the National Association of
Broadcast Employees and Technicians (NABET)
as bargaining agent for certain employees of West
ern Ontario Broadcasting Limited, CHYR Divi
sion and Essex Cable TV Division.
This application is to set aside so much of an
order of the Board dated January 6, 1978 as
purports to revoke the certification orders of
NABET dated April 27, 1977 as bargaining agent
for two bargaining units and certifying NABET as
bargaining agent for the employees of Western
Ontario Broadcasting Limited, CHYR Division
and Essex Cable TV Division with effect January
6, 1978.
The facts relating to each application are identi
cal and the only issue in each is whether the
one-year period which must run before an applica
tion under section 137 of the Canada Labour Code
can be made is calculated from the original date of
certification of NABET viz., April 27, 1977, or
from the date of a subsequent order of the Board
designating NABET as the bargaining agent for
the two divisions of Western Ontario Broadcasting
Limited aforesaid, viz. January 6, 1978.
The essential facts briefly stated are as follows:
On January 5, 1977, NABET applied to the
Board to be certified as bargaining agent for all
employees of Dancy Broadcasting Ltd. (CHYR
Radio) and all employees of Essex Cable TV,
excluding those persons occupying certain named
positions.
On April 27, 1977 the Board issued two certifi
cates to NABET, without a hearing, covering the
employees of Dancy Broadcasting Ltd. (CHYR
Radio) and Essex Cable TV respectively.
On the same date the Board delivered reasons
for the issuance of the bargaining certificates as
well as its decision with respect to an application
for a declaration of a single employer pursuant to
section 133' of the Canada Labour Code. Having
' 133. Where, in the opinion of the Board, associated or
related federal works, undertakings or businesses are operated
by two or more employers, having common control or direction,
the Board may, after affording to the employers a reasonable
opportunity to make representations, by order, declare that for
all purposes of this Part the employers and the federal works,
undertakings and businesses operated by them that are speci
fied in the order are, respectively, a single employer and a
single federal work, undertaking or business.
decided that two bargaining units were appropri
ate for collective bargaining rather than one as
applied for, the Board dealt with the section 133
application as follows:
The Board notifies the parties that it proposes to convene a
hearing in the near future for the purpose of receiving evidence
and submissions with regard to the application filed pursuant to
Section 133 of the Canada Labour Code (Part V—Industrial
Relations). In the course of that hearing, the Board will also
entertain evidence and submissions with regard to the issue of
whether it would be appropriate to include the employees of
CHYR Radio and of Essex Cable TV in a single bargaining
unit. Should the Board then find that the application for
declaration of a single employer must be upheld and that it is
appropriate to create a single unit, it may then invoke the
powers given to it by section 119 of the Code in order to alter or
vary the certification orders issued today. However, this possi
bility need not in any way preclude or delay the commencement
of negotiations.
On December 6 and 7, 1977 after notice to
NABET and to the employers named in the two
certificates dated April 27, 1977, the Board heard
submissions on the application under section 133
of the Canada Labour Code. In its reasons the
Board stated that this application was one initiated
by the Board pursuant to section 119 2 of the Code
"to consider whether two bargaining units
described in certification orders issued April 27,
1977 should be consolidated into a single bargain
ing unit." The Board further stated:
A hearing was scheduled to consider the application for a
declaration pursuant to Section 133 and at the commencement
of the hearing the Board was informed that the actual picture
at the date of hearing, as a result of corporate re-organizations,
was that in the one case the proper description of the employer
on the certification order is "CHYR Radio, a division of
Western Ontario Broadcasting Limited" and in the other
"Essex Cable TV, a division of Western Ontario Broadcasting
Limited". There being only one corporate entity involved, the
application under Section 133 had no further relevance and the
Board determined, after hearing submissions from the parties,
that it would consider, under Section 119, whether the two
certification orders, as amended to correctly describe the
employer, should be merged into one order with a consolidated
bargaining unit.
On May 25, 1978 the applicant herein pursuant
2 119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
to section 137(1) and (2) (b) 3 of the Code applied
for an order revoking the certification of NABET.
On August 25, 1978 the Board dismissed as
untimely the application for revocation of certifi
cation. In doing so the Board member writing the
reasons for dismissing the application had this to
say:
In the instant application the requirements of Section 137(1)
have been met in that the applicant Mr. Lehan claims to
represent a majority of the employees of the employer and has
filed a petition with the Board supporting that claim.
However, in studying the application in light of the require
ments of Section 137(2) the Board finds it does not satisfy
those requirements. As there is no collective agreement in force
between the employee and the certified bargaining agent,
NABET, no valid application for revocation may be made until
the elapse of at least one year from the date of certification of
the trade union.
The trade union was issued a bargaining certificate on January
6, 1978. It is clear from the wording of the bargaining certifi
cate itself as well as the accompanying letter from the Board,
signed by James E. Dorsey, Vice-Chairman (both of which are
attached), that the certification order, in revoking two previous
ly existing bargaining certificates and replacing them by a
single certificate, created a new bargaining unit and is, in
effect, a new bargaining certificate. Consequently, the bargain
ing agent thus certified is protected from revocation of its
bargaining rights in accordance with the provisions of Section
137(2) of the Canada Labour Code—Part V.
Counsel for the applicant argued that the inten
tion of the Board can be clearly found in the
orders and excerpts from the reasons for the orders
above referred to. That intention was to amend the
original bargaining certificates nunc pro tunc so as
to certify NABET as the bargaining agent for a
single bargaining unit and thus was retroactive to
the original date of certification, April 27, 1978.
The revocation and certification in the January 6,
1978 order is the result of using inept language
and had the effect of certifying a union upon a
non-existent application. To do so was beyond the
137. (1) Where a trade union has been certified as the
bargaining agent for a bargaining unit, any employee who
claims to represent a majority of the employees in the bargain
ing unit may, subject to subsection (5), apply to the Board for
an order revoking the certification of that trade union.
(2) An application pursuant to subsection (1) may be made
in respect of a bargaining agent for a bargaining unit,
(b) where no collective agreement applicable to the bargain
ing unit is in force, at any time after a period of one year
from the date of certification of the trade union.
jurisdiction of the Board in that as soon as it
revoked the original certificates it became functus
and had no power to proceed with the new certifi
cation. Counsel conceded during the course of
argument that section 119 provided the Board with
a fundamental jurisdiction to amend its own pro
cesses and that applications for certification, by
virtue of the Board's reserving unto itself the right
to hear the section 133 application, remained open.
However, in his view those applications had been
finally disposed of as soon as the Board revoked
the certificates and there were then no applications
before the Board upon which it could certify a
trade union. What was done was not in his view, a
proper exercise of the power to "vary" an order
under section 119 of the Code.
In my view, there is no merit in the applicant's
contentions. Mr. Justice Judson, in the Supreme
Court of Canada in Labour Relations Board of
the Province of British Columbia v. Oliver Co
operative Growers Exchange 4 in dealing with a
section of the Labour Relations Act of British
Columbia very much akin to section 119 in its
language, had this to say about an argument
couched in much the same terms as that advanced
by applicant's counsel [at pp. 11-12]:
The majority in the Court of Appeal held that the Board's
power under s. 65(2) and regulation 9(a) was limited to the
substitution of a new name for an old and that the word "vary"
in s. 65(2) could not support the substitution of another union
for that set out in a Certificate of Bargaining Authority. That
would amount to a new and different certification, a replace
ment of one union by another, a change that could only be
brought about by following the procedure laid down by ss. 10
and 12. The decision is that Local 1572, being a new union,
should have applied for certification and not variation of an
existing certificate and that variation of a certificate in the
circumstances of this case was beyond the powers of the Board.
The learned judge of first instance and Davey J.A., in the
Court of Appeal, were of a contrary opinion and held that the
Board had jurisdiction under s. 65(2),I am of the opinion that
this is the correct view to take of the Act.
There is no dispute that the procedure of the Board under
s. 65(2) was correct. Every interested party had knowledge of
what was being done and was given an opportunity to be heard.
It is of some significance that out of 23 employers, only this
particular respondent-employer opposed the application. That,
of course, does not cure a defect if it is one of lack of
jurisdiction.
It is equally beyond dispute that no attempt was made to
proceed under ss. 10 and 12 of the Act dealing with certifica
tion and decertification. The gist of the decision of Davey J.A.,
with which I fully agree, is that it was unnecessary to proceed
4 [1963] S.C.R. 7.
under ss. 10 and 12 and that the certification procedures of
s. 10 and s. 12 of the Act were appropriate when a union seeks
initial certification or contending unions seek certification but
not to the case of a successor union resulting from a merger or
reorganization. He held that s. 65(2) conferred upon the Board
an entirely independent power to vary or revoke a former order
in appropriate circumstances and that this included power to
deal with cases not specifically provided for by the Act and
which were outside the ordinary operation of s. 10 and s. 12.
In a subsequent case, Mr. Justice Hall speaking
for the Supreme Court in Bakery and Confection
ery Workers International Union of America
Local No. 468 v. White Lunch Limited 5 followed
the Oliver Co-operative Growers decision and
used language which is very apposite in the case at
bar.
I may paraphrase Judson J.'s remarks by pointing out that
here the orders of February 13 were properly made. Every
interested party had notice of the applications and was given an
opportunity to be heard. Cogent evidence was led that the
employees in question had at all times been the employees of
the respondent. The Board had knowledge that the original
application named the respondent as the employer and that the
substitution of Clancy's as the employer in the subsequent
proceedings came as a result of the solicitors' letter of October
1. It had also evidence of the move to put Clancy's into
voluntary liquidation at the very time officers of Clancy's who
were also president and general manager of the respondent
were purporting to be bargaining collectively under the order of
October 16. The Board was free to act or not act on that
evidence as it saw fit and by statute its decision is final and
conclusive. This Court will not and must not interfere in what
has been done within the Board's jurisdiction for, as stated by
Lord Sumner in Rex v. Nat Bell Liquors Ltd. ([1922] 2 A.C.
128 at 156), in so doing:
... it would itself, in turn, transgress the limits within which
its own jurisdiction of supervision, not of review, is confined.
That supervision goes to two points: one is the area of the
inferior jurisdiction and the qualifications and conditions of
its exercise; the other is the observance of the law in the
course of its exercise.
Again at pages 295 and 296 in speaking of
section 65(3) of the British Columbia Labour
Relations Act (the corresponding section to section
119 of the Code) he had this to say:
I cannot read the section as narrowing the plain meaning of the
word "vary". It is defined in the Shorter Oxford Dictionary as:
"to cause to change or alter; to adapt to certain circumstances
or requirements by appropriate modifications" nor do I accept
the view that the word "vary" cannot apply retroactively. It has
not such a limited meaning and circumstances will frequently
5 [1966] S.C.R. 282 at 294 and 295.
arise where it must have a retroactive effect. The present case is
a classical example.
The Board had jurisdiction to entertain the application to
vary. Nothing in the record or in the affidavits shows that it
lost jurisdiction for any of the reasons which the law recognizes
as ousting jurisdiction, i.e., bias, interest, fraud, denial of
natural justice or want of qualification.
On the basis of all of the foregoing, I am of the
opinion that the applicant's first argument must
fail. The Canada Labour Relations Board clearly
had the right to vary its own order and, of necessi
ty, it follows, from the jurisprudence, that it was
entitled to revoke earlier certificates and certify
the same union for the employees of the single
employer. No question of unfairness could arise
since the parties were notified and were heard. The
Board's right to determine its own jurisdiction
finds support in the recent decision of the Supreme
Court of Canada in Canadian Union of Public
Employees Local 963 v. New Brunswick Liquor
Corporation [1979] 2 S.C.R. 227.
The only question now to be resolved is whether
the Board was correct in determining that the date
of the second certificate, January 6, 1978, was the
date from which the timeliness of an application
under section 137(2) (b) is to be calculated. I am of
the view that the Board correctly decided that, in
the circumstances, the proper date for certification
was the date of the new certificate, January 6,
1978. NABET was not given status to bargain for
the consolidated unit until that date. One of the
attributes flowing from bargaining certification is
the right to bargain for all of the employees
embraced by the bargaining unit specified in the
certificate. Section 137(2)(b) ensures that it will
have adequate time to do so before facing an
application for revocation of the certificate. Since
the new certificate is not referable to the previous
certificates and since, in any event, those certifi
cates no longer exist because of their revocation,
the time for purposes of section 137(2)(b) of the
Code should logically run from the date upon
which the certificate was granted. It is not until
that date that the union had any right to bargain
with Western Ontario Broadcasting Limited,
which had not been the employer in either of the
prior certificates.
On its plain meaning section 119 gives the
Board the right to rehear the original application
or to continue the hearing of that application
which it was conceded by the parties had not been
concluded and to "rescind, amend, alter or vary"
the previous order in any way it deemed advisable.
I am unable to see that that section requires, either
expressly or by implication, that the date of the
amending or new order must be that of the order
which it amends or replaces. In order for the
applicant to succeed, and for this Court to inter
vene, the Board must be shown that in selecting
the date that it did, to have acted beyond its
jurisdiction. As was pointed out by Dickson J. in
the New Brunswick Liquor Board case, supra, if
the interpretation given a statute by the adminis
trative tribunal acting under it is reasonable the
Board "cannot be said to have so misinterpreted
the provision in question as to `embark on an
inquiry or answer a question not remitted to it' "
and, therefore to have acted beyond its jurisdic
tion. In my view, the interpretation of section 119
given by the Board in this case is reasonable and
we ought not, therefore, to find it lacked
jurisdiction.
For all of the above reasons, I would dismiss
both section 28 applications.
* * *
KELLY D.J.: I agree.
* * *
KERR D.J.: I agree.
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.