A-36-81
International Longshoremen's and Warehouse-
men's Union, Local 502 (Applicant)
v.
Terrance John Matus and Canada Labour Rela
tions Board (Respondents)
[No. 1]
Court of Appeal, Pratte, Urie M. and Verchere
D.J.—Vancouver, October 9 and November 10;
Ottawa, November 24, 1981.
Judicial review — Labour relations — Expulsion of union
member for joining a second union — Union permitting some
members to join other unions — Canada Labour Relations
Board finding union to have breached Code provisions prohib
iting discrimination — Reinstatement and compensation
ordered — Board denying Union's appeal and making finding
that Union had breached an additional Code provision —
Whether s. 185(f) and (h) of Labour Code ultra vires Parlia
ment — Whether Board exceeded jurisdiction because its
decision was founded on a patently unreasonable interpretation
of s. 185(h) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
110(1), 185(1),(h), 189(d),(e) — The British North America
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. 5], s. 92(13).
A union local expelled a member for disobeying a provision
of its constitution which prohibited members from belonging to
any other trade union. The member had joined another union
as this was necessary to obtain employment in a different
business at a time when little work was available at his usual
places of employment. He had continued to pay his dues to the
Union which expelled him. There was evidence that the Union
permitted some members to have memberships in other unions.
Upon application by the member to the Canada Labour Rela
tions Board, the Union was found to have violated paragraphs
185(f) and (h) of the Code. Paragraph 185(f) forbade trade
unions to practice discrimination in the application of member
ship rules. Paragraph 185(h) provided that unions might not
expel an employee from membership for refusing to perform an
act contrary to the relevant Part of the Code. The Board
ordered the member's reinstatement and that compensation be
paid. The Union sought a reconsideration but this application
was dismissed by the Board which found that the Union had
also contravened paragraph 185(e) of the Code. That para
graph prohibited unions from requiring an employee's termina
tion who had been expelled from membership other than for
non-payment of dues. The Union made the present application
to the Federal Court of Appeal for a review of the Board's final
decision. The Union's submissions were that (1) paragraphs
185(f) and (h) were ultra vires Parliament in purporting to
regulate internal union rules and that (2) the Board had
exceeded its jurisdiction because its decision was founded on a
patently unreasonable interpretation of paragraph 185(h).
Held, the application is dismissed.
Per Pratte J.: Parliament was competent to enact the Canada
Labour Code because that legislation applies only to employees
involved in u ertakings within federal jurisdiction and because
the determinate of the conditions of work of those persons has
been considered a vital part of the operation of federal under
takings. The author' y of Parliament to enact labour legislation
extends to the enact ent of legislation appropriate to establish
"a system of collective\bargaining and statutory provisions for
settlement of disputes in labour relations." Trade unions are a
necessary element of such a system. For that reason, the
Parliament of Canada has the authority to legislate to ensure
that persons employed in connection with federal undertakings
are not unjustly deprived of their right to join the union of their
choice. This is the purpose of paragraphs 185(f) and (h). As to
the second issue, the Board interpreted paragraph 185(h) as
prohibiting a Union from expelling a member by reason of his
having done something authorized by the Code. This is an
unreasonable interpretation of that provision. Paragraph
185(h) prohibits a union from expelling a member for the
reason that he has refused to do something that is contrary to
Part V of the Code; it does not prohibit a union from expelling
a member for the reason that he has done something that he
had the right to do. However, the Board's order was also based
on the alternative finding that the applicant had violated
paragraph 185(/). Therefore, the Board's order was not vitiated
by its finding that the Union had violated paragraph 185(h).
Per Urie J.: There is no decision to be set aside since the
Board's decision in this application was varied by the decision
sought to be set aside in Appeal No. A-700-80 infra page 558.
Per Verchere D.J. concurring in the result: The Board did
not err in its interpretation of paragraph 185(h). The Union's
by-law was aimed at membership in any other trade union
while a member of the Union. The Board concluded that such
dual membership is permitted by the Code and that it would be
an act contrary to the Code to require the employee to give up
that duality. When the member did not give up his duality of
membership, he was refusing to perform an act that was
contrary to Part V of the Code and it was not open to the
Union to expel him.
In re the Validity and Applicability of the Industrial
Relations and Disputes Investigation Act [1955] S.C.R.
529, followed.
APPLICATION for judicial review.
COUNSEL:
M. D. Shortt for applicant.
I. G. Nathanson for respondent Terrance
John Matus.
J. Baigent for respondent Canada Labour
Relations Board.
W. B. Scarth, Q.C. for Attorney General of
Canada.
SOLICITORS:
Shortt & Company, Vancouver, for applicant.
Davis & Company, Vancouver, for respondent
Terrance John Matus.
Baigent & Jackson, Vancouver, for respond
ent Canada Labour Relations Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside a decision
made by the Canada Labour Relations Board on
March 6, 1980.
The applicant is a trade union within the mean
ing of the Canada Labour Code, R.S.C. 1970, c.
L-1, composed of longshoremen working in the
Port of New Westminster, British Columbia. For
many years it has been a party to a collective
agreement under which only its members can work
as longshoremen.
The respondent Matus used to work as a long
shoreman in the Port of New Westminster. He was
a member of the applicant when, on November 7,
1978, he was expelled from membership in the
applicant on the sole ground that he had violated a
rule contained in its constitution imposing on its
members the obligation "not to belong to any
other Trade Union". Following his expulsion, he
made a complaint to the Board pursuant to section
187 of the Code that the applicant had contra
vened section 185 when it had expelled him. At the
hearing before the Board, counsel for Mr. Matus
argued that the applicant had contravened para
graphs 185(f) and (h). The Board determined that
the applicant had failed to comply with paragraph
185(h) and, accordingly, ordered the applicant to
reinstate and compensate Mr. Matus. That is the
decision against which this section 28 application
is directed.'
Two arguments were put forward by counsel for
the applicant. He said
(a) that the Board had exceeded its jurisdiction
in making the order under attack because para
graphs 185(f) and (h) of the Code are beyond
the legislative competence of the Parliament of
Canada, and
(b) that the Board had also exceeded its juris
diction because its decision was founded on a
patently unreasonable interpretation of para
graph 185 (h) of the Code.
' The relevant provisions of the Canada Labour Code read as
follows:
185. No trade union and no person acting on behalf of a
trade union shall
(f) expel or suspend an employee from membership in the
trade union or deny membership in the trade union to an
employee by applying to him in a discriminatory manner
the membership rules of the trade union;
(h) expel or suspend an employee from membership in the
trade union or take disciplinary action against or impose
any form of penalty on an employee by reason of his
having refused to perform an act that is contrary to this
Part; ...
189. Where, under section 188, the Board determines that
a party to a complaint has failed to comply with ... section
... 185..., the Board may, by order, require the party to
comply with that ... section and may
(d) in respect of a failure to comply with paragraph 185(J)
or (h), by order, require a trade union to reinstate or admit
an employee as a member of the trade union; and
(e) in respect of a failure to comply with paragraph
185(g), (h) or (i), by order, require a trade union to
rescind any disciplinary action taken in respect of and pay
compensation to any employee affected by the failure, not
exceeding such sum as, in the opinion of the Board, is
equivalent to any pecuniary or other penalty imposed on
the employee by the trade union,
and, for the purpose of ensuring the fulfilment of the objec
tives of this Part, the Board may, in respect of any failure to
comply with any provision to which this section applies and
in addition to or in lieu of any other order that the Board is
authorized to make under this section, by order, require an
employer or a trade union to do or refrain from doing any
thing that it is equitable to require the employer or trade
union to do or refrain from doing in order to remedy or
counteract any consequence of such failure to comply that is
adverse to the fulfilment of those objectives.
1. The Constitutional Issue
The applicant's submission on that first issue is
easily summarized. The relations between employ
ers and employees is a matter of property and civil
rights which, prima facie, is within the exclusive
legislative jurisdiction of the provinces pursuant to
subsection 92(13) of The British North America
Act, 1867, 30 & 31. Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5]. If the Parliament of
Canada has nevertheless been held to have the
competence to enact the Canada Labour Code, it
is because that Code applies only to employees
employed in connection with undertakings that are
within the legislative authority of Canada and
because the determination of the conditions of
work of those employees has been considered a
vital part of the operation of the federal undertak
ings. The authority of Parliament to enact labour
legislation therefore flows from its authority to
regulate the operation of federal undertakings.
However, according to counsel for the applicant,
paragraphs 185(f) and (h) cannot be considered as
being legislation regulating, either directly or in
directly, the operation of federal undertakings;
these provisions, said he, regulate the relations
between trade unions and their members, a matter
which is within the exclusive provincial jurisdic
tion.
That argument must, in my view, be rejected.
The authority of Parliament in the field of labour
relations is not limited to the direct determination
of the conditions of work of persons employed in
connection with federal undertakings; it extends to
the enactment of legislation appropriate to estab
lish "a system of collective bargaining and statu
tory provisions for settlement of disputes in labour
relations". 2 Trade unions are a necessary element
of such a system. For that reason, the Parliament
of Canada has, in my opinion, the authority to
legislate so as to ensure that persons employed in
connection with federal undertakings are not
unjustly deprived of their right to join the union of
their choice. This, in my view, is the purpose of
paragraphs 185(f) and (h).
2 In re the Validity and Applicability of the Industrial
Relations and Disputes Investigation Act [1955] S.C.R. 529,
per Estey J., at page 564.
2. The Interpretation Issue
The second argument put forward on behalf of
the applicant is that the Board based its finding
that the applicant had violated paragraph 185(h)
on a patently unreasonable interpretation of that
provision.
There is much to say in favour of that submis
sion. Mr. Matus was expelled from membership in
the applicant solely because he had become a
member of another trade union. The Board con
sidered, rightly or wrongly, that Mr. Matus had
the right, under the Code, to join that other trade
union. If the Board found that the applicant had
violated paragraph 185(h) in expelling Mr. Matus,
it is necessarily because it interpreted that para
graph as prohibiting a union from expelling a
member by reason of his having done something
authorized by the Code. This is, in my opinion, an
unreasonable interpretation of that provision.
Paragraph 185(h) clearly prohibits a union from
expelling a member for the reason that he has
refused to do something that is contrary to Part V
of the Code; it does not prohibit a union from
expelling a member for the reason that he has
done something that he had the right to do.
If the order made by the Board was based solely
on the determination that the applicant had violat
ed paragraph 185(h), I would have no hesitation to
allow this section 28 application. However, counsel
for the respondent and counsel for the Board
submitted that the error that the Board may have
committed in finding that the applicant had violat
ed paragraph 185(h) did not vitiate its order since
that order was also based on the alternative find
ing that the applicant had violated paragraph
185(f), a finding which was clearly supported by
the evidence. In answer to that submission, counsel
for the applicant did not deny that, in the circum
stances, a finding of violation of paragraph 185(f)
could have been made by the Board, but he argued
that such a finding had not in fact been made.
The passage of the decision of the Board which
contains that alleged finding of violation of para
graph 185(f) follows immediately the part of the
decision where the Board determined that the
applicant had violated paragraph 185(h); it reads
as follows:
It becomes unnecessary for the Board to find, as regards the
alternative allegation of Matus, that local 502 would have
applied to him a membership rule in a discriminatory manner
in expelling him for belonging to another trade union.
However, on the basis of the evidence, if the Board had had
to make such an alternative determination it would have found
in the evidence adduced, enough support of discrimination in
applying the rule to Matus, as opposed to other members, and
it would have arrived at the conclusion that local 502 had
violated section 185(f) of the Code.
It is true that the grammatical meaning of that
passage is that the Board does not make a determi
nation but merely indicates the determination it
would make if it had to make one. However, too
much importance must not be attached to the
grammar. The substance of a decision is more
important than its grammatical form. And, in my
opinion, the real meaning of the above-quoted
passage of the decision is that the Board makes an
alternative finding of violation of paragraph
185 (f).
For these reasons, I would dismiss the
application.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: As pointed out in the reasons for
judgment in Appeal No. A-700-80 [page 558
infra], the decision of the Canada Labour Rela
tions Board in this application was varied by the
decision which was sought to be set aside in
Appeal No. A-700-80. That being so, there is no
decision to be set aside herein and the section 28
application should, therefore, be dismissed.
* * *
The following are the reasons for judgment
rendered in English by
VERCHERE D.J.: In these proceedings two
applications under section 28 of the Federal Court
Act were heard together by consent. In the one,
the applicant, International Longshoremen's and
Warehousemen's Union, Local 502 ("the Union")
impugned a decision of the Canada Labour Rela
tions Board ("the Board") made March 6, 1980,
by which the Union had been ordered to reinstate
the respondent, Terrance John Matus ("Matus")
to its membership and to compensate him in
money for his loss of earnings resulting from his
earlier expulsion therefrom. In the other, the
Union attacked a subsequent decision of the Board
made October 7, 1980, in which it dismissed the
Union's request for a review of the earlier decision.
For convenience each application will be dealt with
separately in the order mentioned above.
As his first ground of attack, counsel for the
Union submitted that the provisions of the Canada
Labour Code ("the Code"), Part V, to which the
Board had referred in its reasons for decision
namely, paragraphs 185(f) and (h) thereof', went
beyond the legislative competence of the Parlia
ment of Canada in that they do not seek directly
or indirectly to regulate any federal undertaking
but merely to regulate the relationship between
trade unions and their respective members. I find
it unnecessary for me to go into the question. I
have had the opportunity of reading the reasons
for judgment of both my learned colleagues here
and as the issue is dealt with at some length and to
the same effect there, and as I find myself in
respectful agreement with their conclusions, it is
sufficient to say that I concur therein.
The second ground advanced by counsel for the
Union raised what was called "The Interpretation
Issue", that is to say, it was contended on behalf of
the Union that the Board had, in reaching its
decision, relied solely on paragraph 185(h), supra,
and that in so doing it had fatally misinterpreted
its language. It was argued that because Matus
was expelled from the Union because he had, while
still one of its members, joined another trade union
and thus contravened section 5(b) of the Union
by-laws which expressly prohibited such behav-
3 185. No trade union and no person acting on behalf of a
trade union shall
(f) expel or suspend an employee from membership in the
trade union or deny membership in the trade union to an
employee by applying to him in a discriminatory manner the
membership rules of the trade union;
(h) expel or suspend an employee from membership in the
trade union or take disciplinary action against or impose any
form of penalty on an employee by reason of his having
refused to perform an act that is contrary to this Part; ...
four, he had not been expelled, in the words of the
paragraph on which the Board had found to have
been breached, "by reason of his having refused to
perform an act that is contrary to this Part."
In my view, which I express with deference
because of at least one of my colleague's differing
opinion on this point, it is by no means certain that
the Board had erred in its application of paragraph
185(h) to a situation where, as here, a by-law
made by a union appeared to it prohibited from
application because it precluded enjoyment of the
basic freedom given to every employee by subsec
tion 110(1) of the Code to join the union of his
choice. It seems to me that the conduct at which
the by-law was aimed was not simply that of
belonging to a union; it was that of belonging to
any other trade union while a member of this
Union. The reason for it was probably the fear of a
resulting division of loyalty, but that is of little
consequence here. If, as the Board concluded, such
dual membership is permitted by the Code, it
would be an act contrary to the Code to require,
either expressly or impliedly, that the employee
concerned give up that duality. It accordingly
seems to me to follow that here, when Matus did
not forthwith give up his duality of membership,
he was refusing to perform an act that was con
trary to Part V of the Code, and that being so, that
it was not open to the Union to expel him.
It follows then that, in my opinion, the Board
did not err in law in its interpretation of paragraph
185(h) and that this ground of attack on its deci
sion must also fail.
In any event, however, as Pratte J. has pointed
out in words leading to a conclusion with which I
respectfully agree, the Board made an alternative
finding of the breach by the Union of paragraph
185(f); and as there was evidence to support that
finding, I agree with my learned colleague's con
clusion that even if the Board erred in its interpre
tation and application of paragraph 185(h), the
attack on its decision cannot succeed.
For these reasons I respectfully concur in the
conclusion reached by both of my colleagues,
namely, that this application 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.