A-411-78
Uranerz Exploration and Mining Limited (Appli-
cant)
v.
Canada Labour Relations Board, International
Union of Operating Engineers, Hoisting and Port
able and Stationary, Local 870 and United Steel
Workers of America (Respondents)
Court of Appeal, Heald and Ryan JJ. and Kelly
D.J.—Toronto, January 26; Ottawa, June 8, 1979.
Judicial review — Labour relations — Union certification
— Bargaining unit determined and first representation vote
gave choice of either of two unions or no union — No one
choice received majority but "no union" option received the
least support — Choice in second representation vote between
the two unions only — Whether or not Canada Labour Rela
tions Board decision ordering certification of union winning
majority in the second vote should be reviewed and set aside —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(i), 122(1),
126, 128(1),(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28(1)(a).
This is a section 28 application to review and set aside a
decision of the Canada Labour Relations Board. Two unions,
the Operating Engineers and The Steel Workers, sought to
represent a bargaining unit, as yet without a bargaining agent,
comprising all applicant's employees, with certain exclusions, at
a Saskatchewan mining project. The Board directed that the
ballots in a representational vote give the voters a choice of the
Operating Engineers, The Steel Workers, or no union. No
single choice won an absolute majority but that of not being
represented by either union won the least support. In a second
representation vote, where the choice was restricted to either
the Operating Engineers or The Steel Workers, a majority of
those voting in the bargaining unit favoured The Steel Work
ers. The Board made the order here under attack certifying The
Steel Workers as the bargaining agent for the unit.
Held, (Ryan J. dissenting) the application is allowed. There
is nothing in the revised section 118(i) which entitles the Board
to ignore the clear and plain provisions of section 128(2).
Section 118(1) confers certain powers on the Board to order
representation or additional representation votes. Section
128(2) does not confer any power to order such votes but
prescribes the manner in which such votes are to be conducted.
Section 128(2) only applies to votes where there is no other
trade union as a bargaining agent, and requires that the ballot
include a choice whereunder an employee can indicate his wish
not to be represented by any trade union. For the Board to
ignore the mandate of the section and to order a representation
vote other than the one it was authorized to make was an
assumption of an authority it did not have. It was a condition
precedent to the Board's power to grant certification that a
majority of the employees in the bargaining unit wish to have
the respondent Union represent them. In breaching section
128(2) by not giving the employees a choice as to the particular
union or no union at all, the Board asked the wrong question,
and based the certification on the answers given by the
employees to that wrong question. Since the proper question
was never asked of the employees, it is impossible to determine
what the true wishes of the employees were. The Board,
therefore, had nothing to rely on when it decided that the
majority of employees wished to have the respondent Union
represent them.
Per Ryan J. dissenting: The error should be characterized as
an error of law, a mistake in statutory interpretation, made by
the Board in the course of making a decision—the decision to
certify—assigned to it by section 126 of the Canada Labour
Code. As such, it is an error which is not reviewable under
paragraph 28(1)(a) of the Federal Court Act. The effect of
subsection 122(I) of the Canada Labour Code, by limiting
judicial review to paragraph 28(1)(a), is by implication to
exclude from review an error of law made by the Board in the
course of making a decision assigned to it by relevant legisla
tion. The Board's error in this case was such an error, and
therefore, not of the Court's concern.
Metropolitan Life Insurance Co. v. International Union of
Operating Engineers, Local 796 [1970] S.C.R. 425,
applied. Re Toronto Newspaper Guild, Local 87, Ameri-
can Newspaper Guild (C.I.O.) and Globe Printing Co.
[1952] O.R. 345, agreed with. Service Employees' Inter
national Union, Local No. 333 v. Nipawin District Staff
Nurses Association [1975] 1 S.C.R. 382, distinguished.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corp. [1979] 2 S.C.R. 227, distin
guished.
APPLICATION for judicial review.
COUNSEL:
D. K. MacPherson, Q.C. for applicant.
G. Taylor, Q.C. and P. Alan Francis for
respondent Canada Labour Relations Board.
L. Ingle for respondent United Steel Workers
of America.
SOLICITORS:
MacPherson, Leslie & Tyerman, Regina, for
applicant.
Goldenberg, Taylor, Randall, Buckwold &
Halstead, Saskatoon, for respondent Canada
Labour Relations Board.
United Steel Workers of America, Toronto,
for itself.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Canada
Labour Relations Board issued on August 2, 1978,
wherein the Board ordered that the United Steel
Workers of America (hereinafter The Steel Work
ers) be certified as the bargaining agent for a unit
of employees of the applicant as more particularly
set forth in that decision.
The relevant facts are not in dispute: On Octo-
ber 17, 1977, the International Union of Operating
Engineers, Hoisting and Portable and Stationary,
Local 870 (hereinafter the Operating Engineers)
applied to the Board for certification as bargaining
agent for a group of applicant's employees
engaged in operating, repairing and servicing cer
tain equipment in the Province of Saskatchewan.
On November 7, 1977, The Steel Workers applied
to the Board for certification for a unit of
employees which included, inter alia, the unit
applied for by the Operating Engineers. On
December 28, 1977, The Steel Workers applied for
permission to intervene in the application of the
Operating Engineers and on January 10, 1978, the
Board granted intervener status to The Steel
Workers.
In March of 1978, the Board dismissed the
application for certification by the Operating
Engineers on the basis of the inappropriateness of
the bargaining unit proposed and asked for sub
missions from the parties as to the appropriate
bargaining unit. On April 24, 1978, the Board
directed a representation vote in a unit comprising
all of applicant's employees at its Key Lake, Sas-
katchewan uranium mining project including
warehouse clerks but excluding office employees,
technical and professional employees, safety
employees, and "foremen and those above." The
Board directed that the ballots give the voters a
choice between:
(a) the Operating Engineers;
(b) The Steel Workers; or
(c) no union.
The result of this vote was as follows:
For representation by The Steel Workers-18
votes
For representation by the Operating Engi-
neers-11 votes
For no representation by either union-10 votes.
On June 19, 1978, the Board directed a second
representation vote among employees in the same
voting unit and directed that the voters be given a
choice between the Operating Engineers and The
Steel Workers. In this vote, 28 ballots were
marked in favour of The Steel Workers and 7 were
marked in favour of the Operating Engineers. The
total of valid ballots cast (35) represented 63.6%
of the 55 eligible voters. On August 2, 1978, the
Board made the order here under attack certifying
The Steel Workers as the bargaining agent for the
unit in question after expressing itself as being
satisfied, by reason of the second representation
vote, that a majority of the employees in the unit
wished to have The Steel Workers represent them
as their bargaining agent.
The applicant attacks the certification order of
August 2, 1978, pursuant to section 28(1)(a) of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, alleging that the Board acted beyond its
jurisdiction or refused to exercise its jurisdiction
and failed to observe a principle of natural justice.
The principal thrust of the applicant's submissions
in this regard centre upon the provisions of section
128(2) of the Canada Labour Code, R.S.C. 1970,
c. L-1. Section 128, at all times relevant to this
application, read as follows:
128. (I) Where the Board orders that a representation vote
be taken among employees in a unit, the Board shall
(a) determine the employees that are eligible to vote; and
(b) make such arrangements and give such directions as the
Board considers necessary for the proper conduct of the
representation vote, including the preparation of ballots, the
method of casting and counting ballots and the custody and
sealing of ballot boxes.
(2) Where the Board orders that a representation vote be
taken on an application by a trade union for certification as the
bargaining agent for a unit in respect of which no other trade
union is the bargaining agent, the Board shall include on the
ballots a choice whereby an employee may indicate that he does
not wish to be represented by any trade union named on the
ballots.
It is the applicant's submission that, in ordering
the second representation vote herein, the Board
failed to include a requirement that there be
included on the ballots to be used in such vote a
choice whereby an employee may indicate that he
does not wish to be represented by any trade union
named on the ballots and that since, in respect of
that unit of employees, no other trade union was at
that time the bargaining agent, the provisions of
section 128(2) were clearly breached.
In its reasons, the Board stated that it exercised
its authority under section 118(i) of the Code as
amended, to order a second ballot in which the
employees be given a choice between representa
tion by the Operating Engineers and by The Steel
Workers only. That portion of the Board's reasons
are found at page 158 of Volume 1 of the Appeal
Book and read as follows:
The combination of the repeal of section 128(3) and revision
of section 118(i) will allow the Board to present employees, on
a second ballot, with the choice the Board would have preferred
to give in CJRC Radio Capitale Ltée. This is consistent with
labour relations board practice and provincial legislative policy
(e.g. The Labour Relations Act, R.S.O. 1970, c. 232, s. 92(6)).
It is consistent with parties' expectations and makes good sense
in furthering the purposes and objects of the Code.
As I read this portion of the Board's reasons,
what the Board is really saying here is that the
amended section 118(1) allows it to ignore the
provisions of section 128(2) of the Code in the
circumstances of this case. Said revised section
118(i) reads as follows:
118. The Board has, in relation to any proceeding before it,
power
(i) to order, at any time before the proceeding has been
finally disposed of by the Board, that
(i) a representation vote or an additional representation
vote be taken among employees affected by the proceeding
in any case where the Board considers that the taking of
such a representation vote or additional representation vote
would assist the Board to decide any question that has
arisen or is likely to arise in the proceeding, whether or not
such a representation vote is provided for elsewhere in this
Part, and
(ii) the ballots cast in any representation vote ordered by
the Board pursuant to subparagraph (i) or any other
provision of this Part be sealed in ballot boxes and not
counted except as directed by the Board;
In my view, and with every deference to the
contrary opinion of the Board, I can find nothing
in the revised section 118(i) which entitles it to
ignore the clear and plain provisions of section
128(2) supra. Said section 118(1) confers on the
Board certain powers to order representation or
additional representation votes. Section 128(2)
does not confer any power to order such votes but
prescribes, rather, the manner in which such votes
are to be conducted. The provisions of section 128
deal with the conduct of representation votes and
become effective when the Board has ordered that
a representation vote be taken. The provisions of
subsection (2) thereof do not apply to every vote
but only to those where, as here, there is no other
trade union as a bargaining agent. In such a case,
it is mandatory that the ballot include a choice
whereunder an employee can indicate his wish not
to be represented by any trade union. It seems to
me that such a construction is consistent with the
spirit and intent of the Code. In my view, one
cannot assume that the eleven employees who
favoured the Operating Engineers on the first vote
would vote the same way on the second vote in the
knowledge that they were in the minority on the
first vote. Conceivably, all eleven might prefer no
union to The Steel Workers. If such were the case
and assuming everybody else voted the same, the
second vote would have resulted in a majority vote
against a union had such an option been given on
the second ballot. Surely the purpose and intent of
section 128(2) is to give to employees that third
option if their democratic freedom of choice is to
be preserved.
Furthermore, it seems to me that to hold that
section 128(2) has no application to "additional
representation votes" is to require a finding that,
in effect, an "additional representation vote" is not
"a representation vote" as that term is used in
section 128(2). Such an interpretation is not one
which, in my opinion, the relevant legislation may
reasonably be considered to bear. The provisions of
section 128(2) apply mandatorily to every
representation vote therein described and for the
Board to ignore the mandate of the section and to
order a representation vote other than the one it
was authorized to make was an assumption of an
authority which it did not have.
Accordingly, I have concluded for the above
reasons that the Board was in error in the way in
which it proceeded in this case. That, however,
does not finally determine the matter. It was coun
sel for the Board's submission to us that even if
one assumes error in the Board's procedures in this
case, that such an error would be an error of law
and as such, judicial review is not available in
respect thereof by virtue of the provisions of sec
tion 122(1) of the Canada Labour Code which
limits this Court's power to review Board orders to
cases coming within the ambit of section 28(1)(a)
of the Federal Court Act'. In its memorandum,
the Board expressed this submission as follows:
15. It is respectfully submitted further by the Respondent
Board that in interpreting the provisions of The Canada Labour
Code the Board is carrying out a responsibility entrusted to it
by the Statute. The responsibility is not entrusted to this
Honourable Court. If the interpretation of the Statute involves
a question of law, it is for the Board to determine. Even if, in
the opinion of this Honourable Court the Board erred in such
determination, it was in respect of a question specifically and
exclusively entrusted by Parliament to the Board. It is therefore
not subject to judicial review.
In answering the question whether the Board
committed an error in law not reviewable by this
Court or acted beyond its jurisdiction in which
case this Court would be empowered to interfere,
the decision of the Supreme Court of Canada in
the case of Metropolitan Life Insurance Company
v. International Union of Operating Engineers,
Local 796 2 is, in my opinion, instructive. In that
case the Union sought certification as bargaining
agent of all employees (with certain exceptions) at
Metropolitan Life in its building division at
Ottawa. The company opposed the application on
the ground that the constitution of the Union
could only be interpreted as excluding from mem
bership in the Union those persons claimed by the
Union for certification. The Board rejected the
company's submission and applied a policy of its
own making in dealing with the question whether
an employee was a member of a union. That policy
The only portion of section 28(1)(a) which could possibly
apply, in my view, on the facts of this case, is the portion
conferring jurisdiction on the Court in cases where the tribunal
acted beyond or refused to exercise its jurisdiction.
2 [1970] S.C.R. 425.
permitted a person to be so regarded upon mere
application for membership and payment of at
least $1 initiation fee or monthly dues. The
Supreme Court of Canada held that it was a
condition precedent to the Board having power to
grant the Union's application for certification, that
it be satisfied that more than 55% of the
employees in the bargaining unit were members of
the Union; if the Board had addressed itself to that
question, its decision could not have been inter
fered with by the Court although it appeared that
the Board, in reaching it, had erred in fact or in
law or in both; instead of asking itself that ques
tion the Board embarked on an inquiry as to
whether, in regard to the requisite number of
employees, the conditions which the Board ex
proprio motu applied, had been fulfilled; in pro
ceeding in this manner, the Board failed to deal
with the question remitted to it and instead decid
ed a question not remitted to it and thereby had
stepped outside its jurisdiction'. In delivering the
judgment of the Court, Cartwright C.J. quoted
with approval the concluding words of Robertson
C.J.O. in the case of Re Toronto Newspaper
Guild, Local 87, American Newspaper Guild
(C.I.O.) and Globe Printing Company ([1952]
O.R. 345 at 365) wherein he stated:
To put the matter in another way, the Board has assumed
jurisdiction to grant certification to the applicant without first
ascertaining that the applicant has the qualifications that
permit its certification, and has thereby disregarded an impor
tant limitation on the Board's jurisdiction.
In my view, the reasoning in both of the above
cases applies to the case at bar. The Board's power
to certify the respondent is derived from section
126 of the Canada Labour Code which reads as
follows:
126. Where the Board
(a) has received from a trade union an application for
certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropri
ate for collective bargaining, and
(c) is satisfied that, as of the date of the filing of the
application, or of such other date as the Board considers
3 The above summary of the pertinent facts and the decision
of the Supreme Court of Canada in the Metropolitan Life case
is largely taken from the judgment of Dickson J. while referring
to that case in the case of Service Employees' International
Union, Local No. 333 v. Nipawin District Staff Nurses Asso
ciation [1975] 1 S.C.R. 382 at 389-390.
appropriate, a majority of the employees in the unit wish to
have the trade union represent them as their bargaining
agent,
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the bargain
ing unit.
Thus, in my view, it was a condition precedent to
the Board's power to grant certification that it be
satisfied that a majority of the employees in the
bargaining unit wish to have the respondent Union
represent them. In an endeavour to satisfy itself as
to the wishes of a majority of the employees, it
directed that a representation vote be taken but in
those directions, it breached the provisions of sec
tion 128(2) of the Code by not giving to the
employees a choice as to a particular union or no
union at all. That is, they, in effect, asked the
employees the wrong question, and based the cer
tification on the answers given by the employees to
that wrong question. Since the proper question was
never asked of the employees, it is impossible to
determine what the true wishes of the employees
were. Thus the Board had, in effect, nothing to
rely on when it decided that the majority of the
employees wished to have the respondent Union
represent them. The Board has in effect, acted in a
similar manner to the Board in the Globe Printing
case (supra) by certifying without first ascertain
ing properly and correctly that the Union has the
qualifications to be certified and has thereby
"disregarded an important limitation on the
Board's jurisdiction."
Reference was made by both counsel for the
applicant and counsel for the Board to the
Supreme Court decision in the Nipawin District
Staff Nurses case referred to supra. In my view,
the circumstances in that case were different from
those in the case at bar. In that case the Board
dealt with the question remitted to it—i.e., was the
association a trade union as defined in The Trade
Union Act, 1972, S.S. 1972, c. 137? That question
in turn required determination of the further ques
tion whether the association was a company domi
nated organization as defined in The Trade Union
Act, 1972. The Board answered both questions but
it was alleged that in making those answers, it
improperly interpreted and applied certain provi
sions of the Act thereby losing jurisdiction. Dick-
son J. who wrote the judgment of the Court reject
ed these submissions and held that the Board
neither overlooked nor wilfully disregarded the
pertinent provisions of The Trade Union Act, 1972
and hence the Board did not lose jurisdiction. In
the case at bar, the Board either overlooked or
ignored the provisions of section 128(2) of the
Code which, in my view, is a "jurisdictional error"
reviewable by this Court pursuant to section
28(1)(a) of the Federal Court Act. In my view, the
following passage from the judgment of Dickson
J. 4 aptly describes the situation in the case at bar:
There can be no doubt that a statutory tribunal cannot, with
impunity, ignore the requisites of its constituent statute and
decide questions any way it sees fit. If it does so, it acts beyond
the ambit of its powers, fails to discharge its public duty and
departs from legally permissible conduct. Judicial intervention
is then not only permissible but requisite in the public interest.
But if the Board acts in good faith and its decision can be
rationally supported on a construction which the relevant legis
lation may reasonably be considered to bear, then the Court
will not intervene.
It is my opinion that the Board here did "ignore
the requisites of its constituent statute" and that
this is not a case where the Board's decision "can
be rationally supported on a construction which
the relevant legislation may reasonably be con
sidered to bear".
Since the hearing of this appeal, the Supreme
Court of Canada has delivered judgment in the
case of Canadian Union of Public Employees
Local 963 v. New Brunswick Liquor Corporations.
The Board's action in the case at bar differs
fundamentally, in my view, from the action under
review in that case. In that case, the issue before
the Board was the determination of the employer's
rights created by the Public Service Labour Rela
tions Act of New Brunswick, R.S.N.B. 1973, c.
P-25, in a proceeding between an employer and a
union. The Court held that the parties were prop
erly before the Board and that the Board was
required to determine whether certain conduct of
the employer during a lawful strike was a violation
of the prohibition of the Act, i.e., section 102(3);
to determine the question before it, it was required
of the Board that it interpret section 102(3); and
the Board, in adopting one of several interpreta-
[1975] 1 S.C.R. 382 at pp. 388-389.
5 [1979] 2 S.C.R. 227.
tions to which the section was susceptible, did not
err to the extent described in the Nipawin District
Staff Nurses case (supra) as exposing its error to
review.
In the New Brunswick Liquor Corporation case
(supra), the conduct of the parties was a matter
specifically committed to the Board for decision,
the dimensions of the allowable conduct were set
out in the Act, and the duty of the Board could not
be carried out unless the Board determined what
were the lowest.dimensions as imposed by the Act.
In the case at bar, the Board, in holding that it
had the right to order a further representation
vote, without observing the provisions of section
128(2), was not dealing with a question between
the parties before it; it was departing from the
duties imposed upon it by Parliament.
Parliament, in the statute, told the Board what
it was to do under the circumstances and the
Board could not, in my view, vary its obligation by
misinterpreting the Act by which it was bound. In
deciding that it was not required to follow the
provisions of section 128(2), it acted in a way not
open to it. In proceeding as it did, it acted without
authority, that is to say, without jurisdiction.
Furthermore, in the New Brunswick case
(supra), the Board was called upon to interpret the
provisions of section 102(3) of the New Brunswick
statute, a section that was very badly drafted and
which bristled with ambiguities 6 .
In addressing the question as to the propriety of
the Board's actions, Dickson J. said at page 237 of
the judgment:
Did the Board here so misinterpret the provisions of the Act as
to embark on an inquiry or answer a question not remitted to
it? Put another way, was the Board's interpretation so patently
unreasonable that its construction cannot be rationally support
ed by the relevant legislation and demands intervention by the
court upon review?
I do not see how one can properly so characterize the
interpretation of the Board. The ambiguity of s. 102(3)(a) is
acknowledged and undoubted. There is no one interpretation
which can be said to be "right".
6 See judgment of the Court by Dickson J. at page 230
thereof.
In my opinion, that situation is a far cry from
the situation here where the Board simply ignored,
overlooked or failed to apply section 128(2), the
provisions of which are not ambiguous or unclear
in any way. This course of conduct, in my view of
the matter, falls squarely within the ambit of the
test set out in the Nipawin case (supra) and
re-stated in the New Brunswick case (supra).
On this basis, the Court is, in my view, required
to intervene. I would therefore allow this
section 28 application and set aside the decision of
the Board issued on August 2, 1978.
* * *
KELLY D.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J. (dissenting): I have had the advantage
of reading the reasons for judgment of Mr. Justice
Heald. He has described the facts and identified
the issues. I agree with him that the Canada
Labour Relations Board erred. I would, however,
characterize the error as an error of law, a mistake
in statutory interpretation, made by the Board in
the course of making a decision, the decision to
certify, assigned to it by section 126 of the Canada
Labour Code. As such, it is an error which is not,
as I see it, reviewable under subsection 28(1),
paragraph (a), of the Federal Court Act.
In this case, the Board at all relevant times was
engaged in performing a duty imposed on it by
paragraph 126(c)' of the Canada Labour Code. It
was seeking to determine which, if either, of the
two unions enjoyed majority support within the
bargaining unit and thus had the right to be
' Paragraph 126(c) of the Canada Labour Code provides:
126. Where the Board
(c) is satisfied that, as of the date of the filing of the
application, or of such other date as the Board considers
appropriate, a majority of the employees in the unit wish
to have the trade union represent them as their bargaining
agent,
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the
bargaining unit.
certified by the Board as the bargaining agent of
the employees in the unit. The Board undoubtedly
had jurisdiction to carry out this task. And, in
addition, paragraph (p) of section 118 of the Code
vests in the Board, in relation to any proceeding
before it, power to decide, for all purposes of the
Industrial Relations Part of the Code, any question
that may arise in the proceeding.
In the course of exercising its jurisdiction, the
Board misinterpreted relevant provisions of the
Canada Labour Code. In so doing, it erred in law.
In particular, it interpreted certain amendments to
the Code, effective on June 1, 1978, as freeing it
from its obligation under what had been, before
repeal, subsection (3) of section 128 of the Code,
to hold an additional representation vote on the
basis specified in that subsection, and as vesting it
with power to hold an additional representation
vote under the newly amended section 118, para
graph (i), free of the obligation imposed by the
unrepealed subsection 128(2). The Board appar
ently was of opinion—as I read its reasons—that
the duty under subsection 128(2) had been satis
fied before the taking of the additional vote
because the choice stipulated in that subsection
had been made available on the representation
vote which had been held by virtue of section 127
and which had proved to be inconclusive. I do not
agree, but I can see how the error may have
occurred, when the Code, as amended, is read in
the light of the amendments themselves.
Because of subsection 122(1)" of the Canada
Labour Code, this Court is limited, in reviewing
" Section 122 of the Canada Labour Code provides:
122. (1) Subject to this Part, every order or decision of
the Board is final and shall not be questioned or reviewed in
any court, except in accordance with paragraph 28(1)(a) of
the Federal Court Act.
(2) Except as permitted by subsection (I), no order, deci
sion or proceeding of the Board made or carried on under or
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process
of any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision
or proceeding is beyond the jurisdiction of the Board to make
or carry on or that, in the course of any proceeding, the
Board for any reason exceeded or lost its jurisdiction.
the Board's decision to certify, to the grounds
provided in subsection 28(1), paragraph (a), of the
Federal Court Act. Subsection 28(1), which con
tains three paragraphs, provides:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
The effect of subsection 122(1) of the Canada
Labour Code, by limiting as it does judicial review
to review under paragraph (a), is by implication to
exclude from review an error of law made by the
Board in the course of making a decision assigned
to it by relevant legislation. The Board's error in
this case was such an error. It was an error of law
made by the Board in the certification proceeding.
Section 122 of the Canada Labour Code, as I read
it, tells us that such an error, when made by the
Canada Labour Relations Board, is not this
Court's concern.
I have not overlooked that the applicant also
submitted that there had been a denial of natural
justice. In my view that submission lacked
substance.
I would dismiss the application.
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.