A-303-80
North Canada Air Ltd. (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Ryan and Le Dain JJ. and
MacKay D.J.—Calgary, October 17; Ottawa,
November 21, 1980.
Judicial review — Labour relations — Application to review
and set aside certification of bargaining agent — Union
applied for certification as bargaining agent for Norcanair —
Board held that bargaining unit was appropriate — Union
applied for a declaration that Norcanair and Norcanair Elec
tronics were a single employer pursuant to s. 133 of the
Canada Labour Code — Board called for a representation vote
by employees of Norcanair and Norcanair Electronics, and
indicated that ballots of latter employees would remain sealed
pending Board's decision on s. 133 declaration — Whether or
not Board exceeded its jurisdiction by proceeding on the basis
of a vote held prior to the s. 133 declaration — Application
dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
118(i),(p)(v), 133.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corp. [1979] 2 S.C.R. 227, referred to.
APPLICATION for judicial review.
COUNSEL:
D. Laird for applicant.
R. T. G. McBain, Q.C. for respondent Canada
Labour Relations Board.
H. Caley for Canadian Air Line Employees'
Association.
SOLICITORS:
Cook, Snowdon & Laird, Calgary, for
applicant.
Barron, McBain, Calgary, for respondent
Canada Labour Relations Board.
Caley & Wray, Toronto, for Canadian Air
Line Employees' Association.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is a section 28 application to
review and set aside the decision of the Canada
Labour Relations Board on November 6, 1979
certifying the Canadian Air Line Employees'
Association ("CALEA") as the bargaining agent
for a unit of the employees of North Canada Air
Ltd. ("Norcanair") and Norcanair Electronics
Limited ("Norcanair Electronics") described as
follows:
all employees of North Canada Air Ltd., carrying on business
under the trade name and style of "Norcanair" and Norcanair
Electronics Ltd. excluding pilots, accounting and secretarial
personnel, supervisors, and those above.
In the Board's order of November 6, the certifi
cation followed a declaration by the Board, pursu
ant to section 133 of the Canada Labour Code,
R.S.C. 1970, c. L-1, as amended by S.C. 1972, c.
18, s. 1, that Norcanair and Norcanair Electronics
were a single employer and a single federal busi
ness for all purposes of Part V of the Code. That
declaration was attacked by a separate section 28
application in A-302-80, [supra, page 399], chiefly
on the ground that Norcanair Electronics was not
a federal undertaking or business. The reasons for
judgment dismissing that application outline the
history of the application for certification and the
application for a declaration under section 133 and
contain the factual background necessary to an
appreciation of the issues raised by this section 28
application.
The applicant attacks the certification order on
the ground, broadly speaking, that the Board acted
without jurisdiction and denied the applicant natu
ral justice by the manner in which it introduced
and gave effect to the application for a declaration
under section 133 in the certification proceedings.
More specifically the applicant contends that the
Board exceeded its jurisdiction in certifying the
Union as agent for a bargaining unit to include the
employees of Norcanair Electronics consequent
upon the declaration under section 133 and that in
doing so it denied the applicant an opportunity to
make representations as to the appropriateness of
the bargaining unit. The applicant argues that in
view of the application by CALEA on July 11,
1979 for certification as agent for a bargaining
unit consisting of employees of Norcanair alone
and the Board's determination on August 10, 1979
of an appropriate unit of such employees, the
Board was without statutory authority to permit
the employees of Norcanair Electronics to vote at
the same time as the employees of Norcanair and
to enlarge the bargaining unit to include the
employees of Norcanair Electronics as a result of
the declaration under section 133. In its reasons
for decision issued on December 20, 1979 the
Board said that it had treated the application for a
declaration under section 133 as in effect an
amendment to the application for certification.
The applicant denies that the Board had authority
to do so. The applicant further argues that in
proceeding on the basis of a vote held prior to the
declaration under section 133 the Board exceeded
its jurisdiction by giving retrospective application
to the declaration.
In my opinion the Board did not exceed its
jurisdiction by the manner in which it proceeded in
this case. It had authority to make the declaration
under section 133 and it had authority, as an
obvious consequence of that declaration (which
was to apply for all purposes of Part V of the
Code), to certify the Union as the bargaining
agent for a unit that would include the employees
of Norcanair Electronics as well as those of Nor-
canair. The fact that it called for a vote of the
employees of Norcanair Electronics at the same
time as the vote of the employees of Norcanair,
and prior to the decision under section 133, and
that it defined the bargaining unit in two stages
are mere matters of procedure that could not
deprive it of jurisdiction. The Board had ample
authority for both purposes under section 118,
paragraphs (1) and (p)(v), of the Code. Given this
view of what the Board did in fact, there is in my
opinion no merit in the contention that the Board
exceeded its jurisdiction by treating the applica
tion for a declaration under section 133 as an
amendment of the application for certification and
by giving the declaration under section 133 an
allegedly retrospective effect. None of the appli-
cant's objections to the manner in which the Board
proceeded goes to jurisdiction as that concept is to
be applied in the light of the 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.
Nor in my opinion has the applicant established
that the Board denied it natural justice on the
question of the appropriateness of the bargaining
unit. The implication, for the possible scope of the
certification, of the application under section 133
and of the Board's decision that the employees of
Norcanair Electronics should vote at the same
time as those of Norcanair was perfectly clear.
The applicant was afforded a full opportunity by
written submissions and the hearing held on
November 5, 1979 to make any representations it
might choose to make concerning the appropriate
ness of a bargaining unit that would include the
employees of Norcanair Electronics. In fact, the
written submission of the applicant which was filed
on September 4, 1979 with reference to the
application for a declaration under section 133
appears to have contained an allusion to this issue
where it was said: "It is submitted that the
employees of North Canada Air Ltd. do not share
a community of interest with employees of Nor-
canair Electronics Ltd. and without common con
trol and direction there is no sound labour rela
tions reason to grant the application on the tests
found in the Canadian Press decision."
For these reasons I would dismiss the section 28
application.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I concur.
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.