A-596-87
Canadian Pacific Air Lines Limited, Nordair Inc.,
Eastern Provincial Airways Ltd. and Pacific
Western Airlines Ltd. and Canadian Pacific Air
Lines Limited carrying on business as Canadian
Airlines International (Applicants)
v.
Canadian Air Line Pilots' Association, Canadian
Airline Flight Attendants' Association (now
Canadian Union of Public Employees—Airline
Division), International Association of Machinists
and Aerospace Workers, Teamsters Local Union
1999, Lignes Aériennes A+ (Nordair Métro),
Propair Inc., Québecair, Québecair Inter, Québec
Aviation Ltée, Conifair Inc., Gestion Conifair
Inc., Nolisair International Inc., (Nationair), Avi-
tair Inc., Placements CMI Inc., Canadian Airline
Dispatchers' Association, CPAL-MEC, EPA -
MEC, PWA-MEC, Nordair-MEC, Brotherhood
of Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees, R. M.
Sparks, G. A. Moore, D. R. Windealt, C. O.
Ferguson, R. N. Clark, J. Bateman and Attorney
General for Canada (Respondents)
A-598-87
Québecair—Air Québec carrying on business as
Québecair, Québec Aviation Ltée carrying on
business as Québecair Inter, Conifair Inc., Ges-
tion Conifair Inc., Lignes Aériennes A+ Inc.
carrying on business as Nordair Métro (Appel-
lants)
v.
Canadian Air Line Pilots' Association, Canadian
Air Line Flight Attendants' Association (now
Canadian Union of Public Employees—Airline
Division), International Association of Machinists
and Aerospace Workers, Teamsters Local Union
1999 (Respondents)
and
Canadian Pacific Air Lines Limited, Canadian
Airlines International, Nordair Inc., Propair Inc.,
Eastern Provincial Airways Ltd., Nolisair Inter
national Inc. carrying on business as Nationair,
Canadian Air Line Dispatchers' Association,
CPAL-MEC, Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and
Station Employees, Nordair-MEC, EPA -MEC,
PWA-MEC, R. M. Sparks, G. H. Moore, D. R.
Windeatt, C. G. Ferguson, R. N. Clark, J. Bate-
man, Avitair Inc., Placements C.M.I. Inc. and
Attorney General of Canada (Mis -en-cause)
A-608-87
Nolisair International Inc. carrying on business as
Nationair (Applicant)
v.
Canadian Air Line Pilots' Association, Canadian
Airline Flight Attendants' Association (now
Canadian Union of Public Employees—Airline
Division), International Association of Machinists
and Aerospace Workers, Teamsters Local Union
1999 (Respondents)
and
Québecair—Air Québec carrying on business as
Québecair, Québec Aviation Ltée carrying on
business as Québecair Inter, Conifair Inc., Ges-
tion Conifair Inc., Lignes Aériennes A+ Inc.
carrying on business as Nordair Métro, Canadian
Pacific Air Lines Limited, Canadian Airlines
International, Nordair Inc., Propair Inc., Eastern
Provincial Airways Ltd., Canadian Air Line Dis
patchers' Association, CPAL-MEC, Brotherhood
of Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees, Nor-
dair-MEC, EPA -MEC, PWA-MEC, R. M.
Sparks, G. H. Moore, D. R. Windeatt, C. G.
Ferguson R. N. Clark, J. Bateman, Avitair Inc.,
Placements C.M.I. Inc. and Attorney General of
Canada (Mis -en-cause)
INDEXED AS: CANADIAN PACIFIC AIR LINES LTD. v.
C.A.L.P.A.
Court of Appeal, Hugessen, Lacombe and Desjar-
dins JJ.—Montréal, January 22; Ottawa, January
28, 1988.
Judicial review — Applications to review — Canada Labour
Relations Board order to file materials prior to hearing
application to amend certification — Motions to quash s. 28
applications dismissed — Order to produce documents judi
cial act — Order specifically subject to s. 28 review as
rendered in course of proceedings — "Decisions" and "orders"
distinguished — Meaning of "order" in s. 28 — Order made
pursuant to Board's powers under Code, s. 118(a) and (f —
Legal rights and obligations flowing from order.
Federal Court jurisdiction — Appeal Division — Applica
tion to review Canada Labour Relations Board order to file
materials prior to hearing application to amend certification
— S. 28 jurisdiction not limited to review of things done by
tribunal at specific stage of proceedings.
Practice — Parties — Standing — Canada Labour Rela
tions Board denied standing in hearing of motion to set aside
its order — Contrary to public interest to allow tribunal to
take sides in court battle between parties to proceeding before
it.
This was a motion to quash applications to set aside an order
of the Canada Labour Relations Board, requiring the filing of
information concerning the employer companies which was
necessary to its investigation into whether to amend certain
existing certifications. It was argued that the impugned order
was purely administrative, and therefore not required to be
made on a judicial or quasi-judicial basis. This was based on a
suggestion in a Federal Court, Trial Division decision that an
order to produce documents was purely administrative. The
second submission was that the order was not a decision or
order within the meaning of subsection 28(1) of the Federal
Court Act. That argument was based on case law to the effect
that section 28 cannot be used to review preliminary or inciden
tal "decisions" which a tribunal is not specifically authorized to
make by law, but which may be necessary in the course of
coming to a final decision. There was also a preliminary issue
as to whether the Board had standing with respect to the
motion to quash.
Held, the motions should be dismissed.
The Board was without standing as it had no interest in
questions relating strictly to the Federal Court's jurisdiction to
review the Board's orders. It would be contrary to public
interest to allow a tribunal to take sides in a court battle
between parties to a proceeding before it.
Since the Trial Division decision relied upon by the appli
cants was rendered, the Supreme Court of Canada has held
that the exercise of a legal power to compel persons to testify
and to produce documents, even when exercised by administra
tive bodies, is a judicial act.
The order in question was rendered "in the course of pro
ceedings" and was therefore specifically subject to subsection
28(1) review. Most of the case law referred to in support of the
second submission dealt with "decisions", rather than "orders".
The Court had often pointed out the distinction and empha
sized that different considerations may apply to orders.
"Order", in section 28, refers to a ruling which a tribunal is
specifically authorized to make, and which takes immediate
effect to force the doing or not doing of something. Normally,
an order cannot be undone by the final decision of the tribunal
which made it. Also, the Supreme Court of Canada had
recently emphasized that the Federal Court of Appeal's juris
diction under section 28 is not limited to the review of things
done by a tribunal at any specific stage of the proceedings:
Syndicat des employés de production du Québec et de l'Acadie
v. Canada Labour Relations Board et al.
Applying the two-part test stated in Anheuser-Busch, the
order was: 1) clearly within the Board's mandate under para
graphs 118(a) and (J) of the Labour Code, and 2) was one
from which legal rights and obligations flowed. It required
immediate compliance. Whatever the ultimate outcome of the
proceedings, the applicants were required to do something
which, if the order was made without jurisdiction, could never
be corrected. Also, if the order was filed with the Court, it
would acquire the force of a Court order and section 192 of the
Code attaches penal consequences to failure to comply with an
order pursuant to paragraph 118(a).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118 (as
am. by S.C. 1972, c. 18, s. 1), 119 (as am. idem), 123
(as am. by S.C. 1977-78, c. 27, s. 43), 133 (as am. by
S.C. 1972, c. 18, s. 1), 144 (as am. idem), 192 (as
enacted idem).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED:
APPLIED:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684; Vancouver Wharves Ltd. v. Inter
national Longshoremen's and Warehousemen's Union,
Local 514 (1985), 60 N.R. 118 (F.C.A.); Attorney Gen
eral (Que.) and Keable v. Attorney General (Can.) et al.,
[1979] 1 S.C.R. 218; Commission des droits de la per-
sonne v. Attorney General et al., [1982] 1 S.C.R. 215;
Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of
Canada Limited, [1983] 2 F.C. 71 (C.A.); Syndicat des
employés de production du Québec et de l'Acadie v.
Canada Labour Relations Board et al., [1984] 2 S.C.R.
412.
REFERRED TO:
Transportaide Inc. v. Canada Labour Relations Board,
[1978] 2 F.C. 660 (T.D.); National Indian Brotherhood
v. Juneau (No. 2), [1971] F.C. 73 (C.A.); Attorney
General of Canada v. Cylien, [1973] F.C. 1166 (C.A.);
B.C. Packers Ltd. v. Canada Labour Relations Board,
[1973] F.C. 1194 (C.A.); Anti-dumping Act (In re) and
in re Danmor Shoe Co. Ltd., [ 1974] 1 F.C. 22 (C.A.).
COUNSEL:
R. Bruce Pollock and Frederick R. von Veh,
Q.C. for applicants Canadian Pacific Air
Lines Limited, Nordair Inc., Eastern Provin
cial Airways Ltd. and Pacific Western Air
lines Ltd. and Canadian Pacific Air Lines
Limited carrying on business as Canadian
Airlines International.
John T. Keenan and Linda Thayer for
respondent Canadian Air Line Pilots' Asso
ciation.
Luc Beaulieu and Manon Savard for respond
ents Québecair—Air Québec, Québec Avia
tion Ltée, Conifair Inc., Gestion Conifair Inc.,
Lignes Aériennes A+ Inc.
Théodore Goloff for respondent Nolisair
International Inc. (Nationair).
Louis Crête for Canada Labour Relations
Board.
No one appearing for respondent CPAL-
MEC.
SOLICITORS:
Stikeman, Elliott, Toronto, for applicants
Canadian Pacific Air Lines Limited, Nordair
Inc., Eastern Provincial Airways Ltd. and
Pacific Western Airlines Ltd. and Canadian
Pacific Air Lines Limited carrying on busi
ness as Canadian Airlines International.
Gravenor, Keenan, Montréal, for respondent
Canadian Air Line Pilots' Association.
Ogilvy, Renault, Montréal, for respondents
Québecair—Air Québec, Québec Aviation
Ltée, Conifair Inc., Gestion Conifair Inc.,
Lignes Aériennes A+ Inc.
Goloff & Boucher, Montréal, for respondent
Nolisair International Inc. (Nationair).
Clarkson, Tétrault, Montréal for Canada
Labour Relations Board.
Jordan & Gall, Vancouver, for respondent
CPAL-MEC.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: The respondent Canadian Air
Line Pilots Association (CALPA) moves to quash
the section 28 applications brought by the appli
cants against an order of the Canada Labour
Relations Board dated July 13, 1987. The matter
originates in proceedings brought by CALPA before
the Board pursuant to sections 119 [as am. by S.C.
1972, c. 18, s.l], 133 [as am. idem] and 144 [as
am. idem] of the Canada Labour Code.' CALPA
sought to have the Board take note of various
corporate reorganizations and other arrangements
and to declare that they constituted a "sale" of the
business or, alternatively, that the affected compa
nies constituted a "single employer"; the Board
was asked to amend certain existing certifications
accordingly. No hearing has as yet been held by
the Board on cALPA's application. In the course of
investigating the matter prior to holding a hearing,
the Board has sought certain information about
the employer companies. The order of July 13,
1987 orders the applicants
... to file with the Board by July 31st, 1987, the information
and documents listed under their respective names in Appendix
`A'...
That is the order which is the subject of the section
28 proceedings which, in their turn, are the subject
of the motions to quash.
On the hearing of the motions to quash, counsel
for the Board sought to make representations. We
indicated that, in our view, this did not seem to be
the type of matter in which standing should be
granted to the tribunal whose order is under
attack. After hearing counsel for the Board on the
' R.S.C. 1970, c. L-l.
question of his right to be heard, we confirmed our
preliminary view and denied him standing. If au
thority is needed, reference may be had to the
judgment of the Supreme Court of Canada in
Northwestern Utilities Ltd. et al. v. City of
Edmonton, [1979] 1 S.C.R. 684, and the decision
of this Court in Vancouver Wharves Ltd. v. Inter
national Longshoremen's and Warehousemen's
Union, Local 514 (1985), 60 N.R. 118. While one
may recognize the interest, and therefore the
standing, of a tribunal to make representations on
the issue of its own jurisdiction in the narrow
sense, it can have no such interest in questions
relating strictly to the jurisdiction of this Court to
review the tribunal's orders. There is a strong
public interest to be served in refusing to a tri
bunal the right to take sides in a court battle
between parties to a proceeding currently pending
before it.
In support of the motions to quash, counsel for
CALPA takes two points. In the first place, he
asserts that the order of July 13, 1987 is a purely
administrative order "not required by law to be
made on a judicial or quasi-judicial basis."
In the second place, he argues that it is not, in any
event, a decision or order within the meaning of
those terms in subsection 28(1) of the Federal
Court Act. 2
The first point may be quickly dealt with. It is
based largely on a suggestion in a decision of the
Trial Division that an order to produce documents
is a purely administrative matter (see Transport-
aide Inc. v. Canada Labour Relations Board,
[1978] 2 F.C. 660 at page 670). Since that deci
sion was rendered, however, it has now been set
tled on highest authority that the exercise of a
legal power to compel persons to testify and to
produce documents, even when exercised by
administrative bodies, is a judicial act. (See Attor
ney General (Que.) and Keable v. Attorney Gener
al (Can.) et al., [1979] 1 S.C.R. 218, at page 225,
and Commission des droits de la personne v.
2 R.S.C. 1970 (2nd Supp.), c. 10.
Attorney General et al., [ 1982] 1 S.C.R. 215, at
page 221).
Counsel's second submission is based on this
Court's well-known jurisprudence to the effect that
section 28 cannot be used for the purpose of
reviewing preliminary or incidental "decisions"
which a tribunal is not specifically authorized to
make by law but which it may be required to come
to in the course of the proceedings leading to the
final decision. (See National Indian Brotherhood
v. Juneau (No. 2), [1971] F.C. 73 (C.A.); Attor
ney General of Canada v. Cylien, [1973] F.C.
1166 (C.A.); B.C. Packers Ltd. v. Canada Labour
Relations Board, [1973] F.C. 1194 (C.A.); Anti-
dumping Act (In re) and in re Danmor Shoe Co.
Ltd., [1974] 1 F.C. 22 (C.A.)). A frequently
quoted summary of that jurisprudence is contained
in the reasons of my brother Heald J. in Anheus-
er-Busch, Inc. v. Carling O'Keefe Breweries
of Canada Limited, [1983] 2 F.C. 71, (C.A.), at
page 75:
That jurisprudence is to the effect that the Federal Court of
Appeal has jurisdiction to review under section 28 only final
orders or decisions—that is final in the sense that the decision
or order in issue is the one that the tribunal has been mandated
to make and is a decision from which legal rights or obligations
flow. This jurisprudence makes it clear that the Court will not
review the myriad of decisions or orders customarily rendered
on matters which normally arise in the course of a proceeding
prior to that final decision.
While not in any way detracting from the force
and authority of those decisions, I am of the view
that they do not control the outcome of these
proceedings so as to oblige us to quash the
section 28 applications. On the contrary, in my
opinion the present case constitutes a classic exam
ple of the type of order rendered "in the course of
proceedings" which is specifically made subject to
review by the words of subsection 28(1).
In the first place, I note that virtually all of the
early jurisprudence referred to above dealt with
"decisions" (which may have taken the form of
declarations or rulings) rather than with "orders".
In most cases, the Court was careful to point out
the distinction and to emphasize that "different
considerations may be applicable" to order. 3
As I understand it, the word "order", when read
in the context of section 28 of the Federal Court
Act, refers to a ruling which a tribunal is specifi
cally authorized to make by statute and which
takes immediate effect to force the doing or not
doing of something by somebody. In the normal
course of things, an order cannot be undone or
corrected by the final decision of the tribunal
which has made it. In this respect, it is in sharp
contrast to the types of "decisions" dealt with in'
the cited cases.
Secondly, it appears to me that the Supreme
Court of Canada has recently emphasized that the
jurisdiction of this Court under section 28 is not, in
principle, limited to the review of things done by a
tribunal at any specific stage of its study of the
question before it. I find, with respect, the words
of Beetz J. speaking for the Court in Syndicat des
employés de production du Québec et de l'Acadie
v. Canada Labour Relations Board et al., [1984] 2
S.C.R. 412, at pages 428-439, to be particularly
instructive:
It seems to me that if jurisdictional error includes error as to
the initial jurisdiction of an administrative tribunal initiating a
hearing and its power to resolve by a declaration the question
submitted to it, a fortiori it covers provisions which confer on it
the power to add to its final decision orders arising out of the
hearing and intended to give effect to its declarations by
injunctions and other means of redress such as those in paras.
(a) to (d) of s. 182. I do not see how it is logical to limit the
possibility that an administrative tribunal may make a jurisdic
tional error to the initial stage, if the tribunal could err and
exceed its jurisdiction with impunity at the stage of the conclu
sion which constitutes the outcome of its hearing and is its
ultimate purpose.
The same is generally true, in my view, for errors relating to
the executory, if not declaratory powers which the Board
exercis-s during a hearing, like that of questioning witnesses,
requiring the production of documents, entering an employer's
premises and so on, conferred on it by s. 118 of the Code. Wide
as these powers may be, they do not include, for example,
giving the Board the right to punish for contempt. This power
continues to belong to the Federal Court, as provided in s. 123
regarding registration of the Board's orders or decisions, exclu
sive of the reasons therefor, in the Federal Court. That section
expressly refers to s. 28 of the Federal Court Act, and main
tains it in effect. Section 123 therefore a i ssunles by implication
that a jurisdictional error may be committed at any stage of a
hearing held by the Board.
3 See, notably, Danmor Shôe, supra, footnote 5, at page 30;
see also B.C. Packers, suprqjootnote 1, at page 1199.
Additionally, as I have already indicated, s. 28(1)(a) of the
Federal Court Act does not apply to the error as such, but quite
apart from any error, to the excess of jurisdiction or refusal to
exercise it, that is, the exercise by an administrative tribunal of
a power denied to it by the Act or the refusal to exercise a
power imposed on it by the Act. Section 28(1)(a) does not
distinguish between types of excess of power, the stages of the
hearing at which they occur and the circumstances causing
them. It applies to any excess of power. There is therefore no
reason to make a distinction where s. 28(1)(a) makes none,
between on the one hand excess of jurisdiction ratione materiae
committed at the beginning of a hearing, whether or not
resulting from an error, and on the other, an error made during
the hearing or in the conclusion of a hearing and the corrective
orders attached to it, despite the fact that the administrative
tribunal has jurisdiction ratione materiae. [Emphasis added.]
I return to the words of Heald J. in Anheuser-
Busch, supra. They pose two questions:
1. Is the order attacked "one that the tribunal
has been mandated to make"?
2. Is it one "from which legal rights and obliga
tions flow"?
In my view, both questions call for a clearly
affirmative answer in the present proceedings.
The Board's order, in its very terms, asserts that
it is made pursuant to the powers conferred on the
Board by paragraphs (a) and (f) of section 118 [as
am. by S.C. 1972, c. 18, s. 1]. This is a purported
exercise of a jurisdiction conferred by the statute
and thus normally subject to jurisdictional review
by this Court.
With regard to the second question, there can
equally be no doubt. The Board's order, by its
terms, requires immediate compliance. Whatever
may be the ultimate outcome of the proceedings
before the Board, the persons to whom the order is
directed will have been obliged to do something
which, if the order was jnade without jurisdiction,
can never be corrected. In addition the order, if
filed with the Trial Division of the Court pursuant
to section 123 [as am. by S.C. 1977-78, c. 27, s.
43] of the Code, would thereby acquire the force
and effect of an order of this Court, rendering
non-compliance subject to contempt proceedings. 4
Finally, in this respect reference may be made to
section 192 [as enacted by S.C. 1972, c. 18, s. 1]
of the Code, which attaches independent penal
consequences to failure to comply with certain
orders such as this one purported to have been
made pursuant to paragraph 118(a).
Before concluding, I wish only to add that I am
fully conscious of the policy considerations which
have dictated and continue to dictate a cautious
approach by this Court to the exercise of its
supervisory jurisdiction at intermediate stages of
proceedings before the affected tribunal. The ends
of justice are not served if parties who do not wish
to proceed before the tribunal have available to
them simple instruments of frustration and delay.
This Court has always demonstrated its sensitivity
to the problem and its willingness to expedite any
matter where that seems necessary. While the
Court can and will act on its own initiative in some
cases, the parties directly concerned are normally
in a far better position to bring the Court's atten
tion to cases where an expeditious hearing is
indicated. In the present case, the section 28 pro
ceedings have been pending since July 1987. With
out in any way wishing to prejudge the matter, I
would have thought that the materials necessary
for the resolution of the issues on the merits of the
applications would be relatively few in number and
easily assembled. A motion for directions regard
ing the composition of the case, a timetable for the
exchange of factums and a date for hearing would
have better employed the time of counsel and
would almost surely have resulted in the matter
being disposed of by final judgment long before
now. While time already lost cannot be regained,
such a motion would still seem to me to be
indicated.
For the reasons given, I would dismiss the
motions to quash.
LACOMBE J.: I agree.
DESJARDINS J.: I agree.
^ The material produced with these motions indicates that a
request was actually made to the Board to file its order with the
Court pursuant to section 123. At the hearing counsel indicated
that no such filing had yet taken place; nothing, however,
prevents it from being done at some future date.
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.