A-159-88
Canadian Transit Company (Applicant)
v.
Public Service Staff Relations Board, Treasury
Board, Carlo Barzotto, Ron Lauzon and Larry
Macko (Respondents)
INDEXED AS: CANADIAN TRANSIT CO. V. CANADA (PUBLIC
SERVICE STAFF RELATIONS BOARD) (CA.)
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.A.—Ottawa, April 27 and June 13, 1989.
Judicial review — Applications to review — Public Service
Staff Relations Board inquiring into safety of working condi
tions at Ambassador Bridge between Windsor and Detroit —
Finding dangerous conditions and ordering employer to correct
inadequacies — Applicant, owner of Bridge, neither formally
notified of hearing, nor given opportunity to be heard although
liable, under Customs Act, s. 6, for costs of improvements —
Applicant entitled to notice of hearing and reasonable oppor
tunity to be heard — S. 6 making applicant's interest direct
and necessary — Board's authority limited to ordering
employer to correct deficiencies — Lack of authority over
applicant not rendering effect of Board's decision less direct —
Applicant's failure to appear although heard rumours of
hearing not waiver of right to formal notice.
Public service — Labour relations — P.S.S.R.B. reversing
decision of safety officer under Canada Labour Code working
conditions of customs inspectors at international bridge not
dangerous — Statutory duty on bridge owner to pay cost of
improvements — Board denying owner standing — Whether
owner directly and necessarily affected by decision —
Although Board acting in employer-employee relations con
text, making determination of contents of owner's statutory
duty — Although means of enforcement circuitous, owner's
property, rights affected — Board decision set aside.
Customs and excise — Customs Act — Owners of interna
tional toll bridges liable, under s. 6, for costs of correcting
inadequacies in facilities — Creating interest sufficiently
direct and necessary to require notice to bridge owner of
P.S.S .R. B. hearing into safety of working conditions at bridge,
and opportunity to be heard.
This was an application to set aside a decision of the Public
Service Staff Relations Board refusing to grant standing to the
applicant, and refusing to reopen an inquiry under section 87 of
the Canada Labour Code into the safety of working conditions
at the Ambassador Bridge between Windsor, Ontario and
Detroit, Michigan. The applicant owned and operated the
bridge. Section 6 of the Customs Act requires the owner of any
international toll bridge to provide "adequate" facilities for the
examination and detention of imported goods, and deems any
facility that fails to meet the requirements of Part II of the
Canada Labour Code inadequate. It also makes the owner
liable for reasonable costs incurred in correcting any inadequa
cies. The applicant was never formally notified of the Board
hearing, although it was aware of the hearing a week before it
was held and an articling student from the applicant's solici
tors' office attended, but did not make his presence known. The
Board found that a situation of danger existed and ordered the
employer to take corrective measures. The employer requested
the owner to take those measures within a certain time, failing
which the employer would undertake the changes. The owner
would ultimately be responsible for costs incurred under the
Customs Act, section 6. The issues were (1) whether the Board
was obliged to give the applicant notice of the hearing and a
reasonable opportunity to be heard, and (2) whether the appli
cant waived the right to notice and an adequate hearing by
failing to appear when it had actual notice of the hearing.
Held, the application should be allowed.
Per Marceau J.A. (Pratte J.A. concurring): An individual
must be directly and necessarily affected by the decision in
order to have a right to participate therein. His interest must
not be merely indirect or contingent. The Customs Act, section
6 made the applicant's interest direct and necessary. Although
required to act in the context of employer-employee relations
and in the context of an authority conferred by the Canada
Labour Code, the Board was in effect determining the contents
of the duty imposed on the applicant by section 6 of the
Customs Act. That the Board had no authority over the
applicant, and that the means of implementing the Board's
decision was circuitous, did not lessen the effect of the Board's
decision on the property and rights of the applicant.
Per MacGuigan J.A.: Assuming Part IV of the Code is
subject to the natural justice principle of audi alteram partem,
the question remained whether the applicant's interest was
sufficiently direct as to require notice and an adequate hearing.
Recent cases have adopted a pragmatic interpretation of
"party", considering in particular whether the interests denied
a hearing would be adequately represented by a party more
directly involved. Here, the employer had no real interest in
opposing the changes in its employees' working conditions since
it was not liable for costs incurred. The applicant had a unique
and relevant point of view to present, as it was liable for costs
necessitated by the Board's order. This real interest of the
applicant was sufficiently directly related to the subject-matter
before the Board that the applicant was entitled to notice of the
hearing and an adequate opportunity to present its case, even if
this did not apply to investigation by safety officers.
The actual notice the applicant had was in the nature of
vague rumour and it could not reasonably be expected to take
cognizance of such information. It had precise knowledge of the
fact of the hearing, not as to the issues. This was insufficient in
light of the formal notice given to the parties.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 85(1) (as
am. by S.C. 1984, c. 39, s. 20), 87 (as am. idem), 103
(as am. idem).
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 6(1),(4)
(as enacted by S.C. 1987, c. 32, s. 1), (5) (as enacted
idem), (6) (as enacted idem).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; 33 N.R. 304.
CONSIDERED:
Appleton v. Eastern Provincial Airways Ltd., [1984] 1
F.C. 367; 2 D.L.R. (4th) 147 (C.A.); Okanagan Heli
copters Ltd. v. Canadian Helicopter Pilots' Assn, [1986]
2 F.C. 56; 64 N.R. 135 (C.A.); Alliance des Professeurs
Catholiques de Montréal v. Quebec Labour Relations
Board, [1953] 2 S.C.R. 140; [1953] 4 D.L.R. 161; 107
C.C.C. 183.
REFERRED TO:
Cooper v. Wandsworth Board of Works (1863), 14 C.B.
(N.S.) 180; 143 E.R. 414 (Eng. C.P.).
COUNSEL:
Theodore Crljenica for applicant.
Andrew J. Raven for respondents Carlo Bar-
zotto, Ron Lauzon and Larry Macko.
Charlotte A. Bell for respondent Treasury
Board.
SOLICITORS:
McTague, Clark, Windsor, for applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondents
Carlo Barzotto, Ron Lauzon and Larry
Macko.
Deputy Attorney General of Canada for
respondent Treasury Board.
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: I share the view of my brother
MacGuigan that the respondent Board should not
have made its decision without first giving the
applicant Transit Company a full opportunity to
be heard.
It is clear to me that mere interest in the
eventual outcome of a proceeding before a tri
bunal, whether financial or otherwise, is not in
itself sufficient to give an individual a right to
participate therein. The demands of natural justice
and procedural fairness certainly do not require so
much and in any event it would be impossible in
practice to go that far. In my judgment, to be
among the interested parties that a tribunal ought
to involve in a proceeding before it to satisfy the
requirements of the audi alteram partem princi
ple, an individual must be directly and necessarily
affected by the decision to be made. His interest
must not be merely indirect or contingent, as it is
when the decision may reach him only through an
intermediate conduit alien to the preoccupation of
the tribunal, such as a contractual relationship
with one of the parties immediately involved.
Was the interest of the applicant in the outcome
of the proceeding here before the Board merely
indirect and contingent in the sense I just
explained? I think not. In my understanding, sec
tion 6 of the Customs Act [R.S.C., 1985 (2nd
Supp.), c. 1] makes that interest direct and neces
sary. Indeed, subsection 6(1) of that Act dictates
that the owner of any international toll bridge is
bound to provide and maintain "adequate" facili
ties for the proper examination of goods by cus
toms officers, and subsection 6(4) [as enacted by
S.C. 1987, c. 32, s. 1] stipulates that any such
facility that fails to meet the requirements of Part
II of the Canada Labour Code [R.S.C. 1970, c.
L-1] shall be deemed not to be adequate. I
reproduce here these provisions:
6. (1) The owner or operator of
(a) any international bridge or tunnel, for the use of which a
toll or other charge is payable,
(b) any railway operating internationally, or
(e) any airport, wharf or dock that receives conveyances
operating internationally and in respect of which a customs
office has been designated under section 5
shall provide, equip and maintain free of charge to Her Majesty
at or near the bridge, tunnel, railway, airport, wharf or dock
adequate buildings, accommodation or other facilities for the
proper detention and examination of imported goods or for the
proper search of persons by customs officers.
(4) Any building, accommodation or other facility provided
for the purposes referred to in subsection (1) that fails to meet
the applicable requirements of Part II of the Canada Labour
Code shall be deemed not to be adequate for those purposes.
Thus, although required to act in the context of
employer-employee relations and in the exercise of
an authority conferred on it by the Canada Labour
Code, the Board was, in effect, called upon to
make a determination as to the adequacy of the
Transit Company's facilities at the Ambassador
Bridge or, put otherwise, make a determination as
to the contents of the duty imposed on the appli
cant by law, that is to say by section 6 of the
Customs Act.
It is true that the Board has no authority over
the Transit Company, as the latter is not the
employer concerned by the complaint which gave
rise to the proceeding, and Parliament has not seen
fit, in situations of that type, to extend the Board's
powers of enforcement beyond its natural borders
of employer-employee relations, having chosen
instead to give the Minister the power to carry out
the improvements necessary to make the facilities
adequate as determined by the Board and to make
the Transit Company liable for all reasonable costs
incurred in so doing.' The implementation of the
decision of the Board is thus, no doubt, somewhat
circuitous. This, however, is in my view, strictly
concerned with means of enforcement and does not
make less direct and necessary the effect of the
Board's decision on the property and rights of the
Transit Company.
' Subsections 6(5) [as enacted by S.C. 1987, c. 32, s. 1] and
6(6) [as enacted idem] of the Customs Act read thus:
(Continued on next page)
I would dispose of the matters as suggested by
my brother MacGuigan.
PRATTE J.A.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: These two section 28 [Fed-
eral Court Act, R.S.C., 1985, c. F-7] applications,
which were heard together, focus on the right to
notice and an adequate opportunity to be heard.
The applicant corporation, which is created by a
special Act of Parliament, is the owner and opera
tor of the Canadian half of the Ambassador
Bridge between the border cities of Windsor,
Ontario, and Detroit, Michigan. The individual
respondents are employees of the Department of
Revenue Canada as Customs and Excise Inspec
tors at the Ambassador Bridge. Between Novem-
ber 19 and 25, 1987, all of them exercised their
rights pursuant to subsection 85(1) [as am. by
S.C. 1984, c. 39, s. 20] of Part IV of the Canada
Labour Code ("the Code"), R.S.C. 1970, c. L-1,
to refuse to work on the basis of dangerous condi
tions of work such as inadequacies in crosswalks,
lighting, traffic control lights, the physical layout
of truck approaches, etc.
These work refusals were investigated on
November 25, 1987, by J. E. Sutherland, a safety
officer designated under the Code, who came to
the conclusion that the working conditions were
not dangerous but normal. Each of the individual
respondents requested an inquiry by the Public
Service Staff Relations Board ("the Board")
under section 87 [as am. idem] of the Code. A
(Continued from previous page)
6....
(5) Where any building, accommodation or other facility
provided pursuant to subsection (1), at or near an internation
al bridge or tunnel is not adequate for the purposes referred
to in that subsection, the Minister may, on thirty days notice
to the owner or operator of the birdge or tunnel, carry out
any construction or repairs on the site of the facility in order
to render it adequate for those purposes.
(6) The owner or operator of an international bridge or
tunnel is liable for all reasonable costs incurred by the
Minister under subsection (5), which costs may be recovered
in accordance with sections 143 to 145.
hearing of the Board in the matter was held on
Monday, December 21, 1987.
No representative of the applicant was present
when the safety officer made his investigation of
the work refusals and the applicant received no
notice of the Board hearing. Its operations manag
er did, however, become aware of the hearing on
the previous Thursday, December 17, with the
president being informed the next day. This infor
mation was also communicated by the applicant to
its solicitors on December 18. No one else from the
law firm being available on December 21, an
articling law student attended the hearing as an
observer, without informing the Board of his
presence.
By a letter of December 23 the applicant
requested that it be given standing to participate in
the hearing and that the matter be reopened to
allow it to participate in the proceedings. The
Board replied to this request on January 20, 1988,
refusing the applicant standing and the reopening
of the proceedings (Case at pages 17-18):
Insofar as the instant case is concerned it is not unusual to
have federal public servants performing duties on non-govern
ment (federal) property. In such a case, as you have indicated
the owner of the property at which the duties are performed is
not a party to the proceedings before the Board under section
87 of the Code; nor is the owner involved in the investigation
and decision making process conducted by a safety officer
under section 86 of the Code. Moreover, under the provisions of
Part IV neither a safety officer nor the Board has any authority
to issue a direction to the owner of the properly in question.
In the circumstances the Board is of the view that the
relationship between the interest claimed by your client and the
issue with which the Board is seized, namely the safety and
health of employees of Revenue Canada, Customs and Excise,
is not sufficient to give your client locus standi in the proceed
ings. Your request to re-open the proceedings is accordingly
denied.
The section 28 application in A-700-88 is
brought to set aside this "decision". The Board
then issued its substantive decision on January 21,
1988, the material part of which is as follows
(Case at page 24 and overleaf):
I conclude from the evidence given that a condition of danger
within the meaning of the Part IV of the Canada Labour Code
does exist in the workplace. Accordingly, I do not confirm the
decisions of the Safety Officer. I recognize that work of this
nature is accompanied by an inherent danger. However, it is
imperative that the danger be reduced to the absolute minimum
consistent with the effective performance of the employees'
duties. This has not been done in relation to the applicants'
workplace. With this in mind and in light of paragraph
87(1)(b) and subsection 102(2) of Part IV of the Canada
Labour Code, I order that the following corrective measures be
undertaken by the employer within 90 days of the date of this
decision:
1. The red and green lights at all booths, presently used to
indicate whether or not the booths are open, be changed to
lights which would read OPEN or CLOSED.
N.B. Red and green should only be used for traffic
control.
2. That red and green traffic control lights actuated from
the booths be installed at truck booths Ex 1, Ex 2 and Ex
3. These lights should be located at a sufficient distance
ahead of the entrance to each booth to permit on-coming
traffic to have a clear view unimpeded by any truck
already stopped at the booth.
3. The pavement on the truck lanes, at the three aforemen
tioned locations, be painted with a solid line and marked
with the word STOP.
4. A new pedestrian crosswalk be painted to cross the
in-bound truck lanes from custom booth #9, following the
concrete barrier to a point opposite passenger toll booths,
then across the in-bound truck lanes to the toll booths,
then in an easterly direction between the toll booths and
the barrier to a point one car length from the entrance to
the toll booths, then in a northerly direction across the toll
booth lanes to the barrier separating the toll booth lanes
and the outgoing truck lanes, then easterly on the raised
pavement, on the truck lane side of the barrier to booth
Ex 2.
5. Overhead stop signals be installed at the new crosswalks
actuated by hand buttons appropriately located.
The section 28 application in A-159-88 is brought
to set aside this order.
Although in terms the Board's order was direct
ed only to the employer, the consequences for the
applicant were immediate. The employer sent it a
copy of the Board's order on January 26, and the
following letter on February 5, 1988 (Case,
Appendix I at pages 10-11):
This is further to my letter of January 26, 1988, sent by
facsimile to your respective offices regarding corrective meas
ures required at the bridge plaza in Windsor. It was the
Department's expectation that this matter would be dealt with
appropriately by the On-Site Technical Committee at its meet
ing of February 3 in Windsor, and that firm commitments
would have been made addressing all nine corrective measures
requested by the Public Service Staff Relations Board decision.
In view of the importance attached to undertaking these
corrective measures within 90 days of the decision, a firm
commitment from the Bridge Authority to correct the noted
deficiencies is essential at this time. I must therefore request a
formal response from you or your client, on or before February
12, 1988 confirming that the work required to implement the
nine corrective measures will be duly undertaken as per the
P.S.S.R.B. decision.
Should such affirmative response not be received by close of
business February 12, the Minister will have no alternative
than to have recourse to the process available under Section 6
of the Customs Act to remedy the situation.
Section 6 of the Customs Act, R.S.C., 1985
(2nd Supp.), c. 1, as enacted by S.C. 1987, c. 32
reads as follows:
6. (1) The owner or operator of
(a) any international bridge or tunnel, for the use of which a
toll or other charge is payable,
(b) any railway operating internationally, or
(c) any airport, wharf or dock that receives conveyances
operating internationally and in respect of which a customs
office has been designated under section 5
shall provide, equip and maintain free of charge to Her Majesty
at or near the bridge, tunnel, railway, airport, wharf or dock
adequate buildings, accommodation or other facilities for the
proper detention and examination of imported goods or for the
proper search of persons by customs officer.
(2) The Minister may
(a) make such improvements as the Minister considers desir
able to any facilities provided pursuant to subsection (1),
(b) post, on or about such facilities, such signs as the
Minister considers appropriate for the safe use of the facili
ties or for the enforcement of any law relating to the
importation or exportation of goods or the international
movement of persons, and
(c) continue to use such facilities for as long a period of time
as he requires,
and no person shall interfere with any of the rights set out in
this subsection.
(3) The Governor in Council may, subject to subsection (4),
make regulations determining what are adequate buildings,
accommodation and other facilities for the purposes referred to
in subsection (1).
(4) Any building, accommodation or other facility provided
for the purposes referred to in subsection (1) that fails to meet
the applicable requirements of Part IV of the Canada Labour
Code shall be deemed not to be adequate for those purposes.
(5) Where any building, accommodation or other facility
provided pursuant to subsection (1) at or near an international
bridge or tunnel is not adequate for the purposes referred to in
that subsection, the Minister may, on thirty days notice to the
owner or operator of the bridge or tunnel, carry out any
construction or repairs on the site of the facility in order to
render it adequate for those purposes.
(6) The owner or operator of an international bridge or
tunnel is liable for all reasonable costs incurred by the Minister
under subsection (5), which costs may be recovered in accord
ance with sections 143 to 145.
On these facts two issues arise: (1) was the
Board obliged to give the applicant notice of the
December 21 hearing and an adequate opportunity
to be heard at the hearing? (2) assuming that the
first issue is decided in the applicant's favour, did
it waive its right to notice and an adequate hearing
by failing to appear on December 21 when it had
actual knowledge of the hearing?
Probably no principle is more fundamental to
administrative law at common law than that of
audi alteram partem, a rule of natural justice that
parties be given adequate notice and opportunity
to be heard, and at least from the time of Cooper
v. Wandsworth Board of Works (1863), 14 C.B.
(N.S.) 180, at page 194; 143 E.R. 414, at page
420 (Eng. C.P.), the courts have used "the justice
of the common law" to "supply the omission of the
legislature" where a statute authorizing interfer
ence with property or civil rights is silent on the
question of notice and hearing.
This view was forcefully stated by Rinfret
C.J.C. in Alliance des Professeurs Catholiques de
Montréal v. Quebec Labour Relations Board,
[1953] 2 S.C.R. 140, at page 154; [1953] 4 D.L.R.
161, at page 174; 107 C.C.C. 183, at page 197:
[TRANSLATION] The principle that no one should be con
demned or deprived of his rights without being heard, and
above all without having received notice that his rights would
be put at stake, is of a universal equity and it is not the silence
of the law that should be invoked in order to deprive anyone of
it. In my opinion, nothing less would be necessary than an
express declaration of the Legislature in order to put aside this
requirement which applies to all Courts and to all the bodies
called upon to render a decision that might have the effect of
annulling a right possessed by an individual.
There is admittedly no express declaration of
Parliament in Part IV of the Canada Labour Code
as to who should receive notice on a section 87
hearing, but it was argued by the respondent that
the scheme of the Part is designed to provide an
expeditious, summary procedure for the determi
nation of the question whether a workplace is or
contains something that is a danger to employees
and that the Board's only concern on such a
hearing must be with rights as between employee
and employer.
It was pointed out by the respondent that it is
only if the safety officer determines that no danger
exists that a section 87 hearing can even arise,
because if that officer determines that danger does
exist and gives directions with respect thereto, the
only right to complain is to a regional safety
officer under section 103 [as am. by S.C. 1984, c.
39, s. 20], and that that right can be invoked only
by those specified in that section: "any employer,
employee or trade union that considers himself or
itself aggrieved by any direction issued by a safety
officer under this Part...." It was therefore
argued that this was a further indication that the
property owner should not be entitled to partici
pate in a hearing before the Board.
Nevertheless, it seems clear from the case law
that where a tribunal decision affecting rights
could be said to be quasi-judicial rather than
purely administrative there was never any question
that the rules of natural justice applied: Attorney
General of Canada v. Inuit Tapirisat of Canada et
al., [1980] 2 S.C.R. 735, at page 746; 33 N.R.
304, at page 315 (per Estey J.). That case, it is
true, emphasized the necessity of looking to the
relevant statute for guidance for the reason that
the domain of natural justice is now considered to
run beyond the quasi-judicial to purely administra
tive actions (at pages 755 S.C.R.; 323 N.R.):
While it is true that a duty to observe procedural fairness, as
expressed in the maxim audi alteram partem, need not be
express (Alliance des Professeurs Catholiques de Montréal v.
Commission des Relations Ouvrières de la Province de Québec
([1953] 2 S.C.R. 140), it will not be implied in every case. It is
always a question of construing the statutory scheme as a whole
in order to see to what degree, if any, the legislator intended the
principle to apply. It is my view that the supervisory power of s.
64, like the power in Davisville [(1977), 15 O.R. (2d) 553; 76
D.L.R. (3d) 218 (C.A.)], is vested in members of the Cabinet
in order to enable them to respond to the political economic and
social concerns of the moment. Under s. 64 the Cabinet, as the
executive branch of government, was exercising the power
delegated by Parliament to determine the appropriate tariffs
for the telephone services of Bell Canada. In so doing the
Cabinet, unless otherwise directed in the enabling statute, must
be free to consult all sources which Parliament itself might
consult had it retained this function.
In those words Estey J. did not in my view
intend to limit the traditional scope of natural
justice. He was, I believe, advocating a more func
tional approach that would extend rather than
restrict the principle. Its ultimate limit was for him
to be drawn only at largely legislative functions, as
he subsequently pointed out (at pages 758 S.C.R.;
325-326 N.R.):
The answer is not to be found in continuing the search for
words that will clearly and invariably differentiate between
judicial and administrative on the one hand, or administrative
and legislative on the other. It may be said that the use of the
fairness principle as in Nicholson [[1979] 1 S.C.R. 311; 23
N.R. 410], will obviate the need for the distinction in instances
where the tribunal or agency is discharging a function with
reference to something akin to a lis or where the agency may be
described as an `investigating body' as in the Selvarajan case
[[1975] 1 W.L.R. 1686; [1976] 1 All E.R. 12 (C.A.)]. Where,
however, the executive branch has been assigned a function
performable in the past by the Legislature itself and where the
res or subject matter is not an individual concern or a right
unique to the petitioner or appellant, different considerations
may be thought to arise.
The application of natural justice in such cases
does not, of course, resolve the issue. Even if, as I
believe, Part IV of the Code must be interpreted as
subject to the common law presumption of audi
alteram partem, the question remains whether the
interest of the applicant is sufficiently direct as to
require notice and an adequate hearing in this
case.
Clearly, the applicant is not a direct party in the
most literal sense. The order is directed to the
employer, and the applicant is not quite so directly
implicated as the successful applicants in Appleton
v. Eastern Provincial Airways Ltd., [1984] 1 F.C.
367; 2 D.L.R. (4th) 147 (C.A.), in which this
Court held that replacement airline pilots fired
during a pilots' strike were parties directly affected
under subsection 28(2) of the Federal Court Act
and also entitled to notice and an opportunity to be
heard. In that case the larger question was in
relation to the related issue under subsection
28(2), which was not raised in the case at bar.
Thurlow C.J. said for the majority (at pages 371
F.C.; 150 D.L.R.):
I am also of the opinion that these pilots fall within the
meaning of "party" in subsection 28(2). The statute is remedial
and, as pointed out by Le Dain J. in Canadian Telecommuni
cations Union, Division No. I of the United Telegraph Workers
v. Canadian Brotherhood of Railway, Transport and General
Workers, et al., [1982] 1 F.C. 603 [C.A.], at page 611, a broad
interpretation should be given to the word "party" so as to
include an applicant whose rights are directly affected by the
order and who, whether or not technically joined as a party to
the proceedings of the tribunal, should have been offered the
opportunity to be a party. Here the applicants, whether they
were employees before the strike began or were hired after it
began, were all members of the bargaining unit for which
CALPA was the recognized bargaining agent. As members of
the unit they would be bound by the collective agreement which
the Board by its order established. Yet it is obvious that their
interests were adverse to those espoused by CALPA. As mem
bers of the unit for whom CALPA acted they were, in my view,
de facto parties and as persons against whose interest an order
was to be made they were persons who ought to have been
given an opportunity to become parties before such an order
was made.
The thrust of this dictum, it seems to me, is
towards a pragmatic interpretation, taking into
account in particular whether the interests denied
a hearing would be adequately represented by a
party more directly involved. That also was the
kind of approach taken by this Court in Okanagan
Helicopters Ltd. v. Canadian Helicopter Pilots'
Assn, [1986] 2 F.C. 56; 64 N.R. 135 (C.A.),
where it was held that certain dissenting
employees were necessary parties to proceedings
before the tribunal. Hugessen J. for the Court
found it decisive that "the interests of the union
and those of the dissenting employees were directly
opposed to each other" (at pages 69 F.C.; 143
N.R.).
In the case at bar, the interests of the employer
and the applicant could not be said to be totally
opposed, but it can be said that the employer had
no real interest in opposing the changes in its
employees' working conditions since it would
suffer no costs in any event. The only property
which could be affected was that of the applicant.
The applicant's affidavit (Case, Appendix I, at
page 7) makes it clear that the applicant had a
unique and relevant point of view to present.
Can it follow from the bare fact that the Board's
order was directed solely to the employer that the
applicant is excluded from the traditional pre
sumption of audi alteram partem. On a pragmatic
view this does not seem appropriate.
The Board was clearly aware at least by Decem-
ber 23 of the applicant's interest and would in any
event be presumed to be aware of the provisions of
an Act of Parliament by which the applicant was
made liable for whatever expenditures were neces
sitated by its order of January 21, 1988. The
employer's interest in the proceedings was only
apparent; that of the applicant was real. In my
view this real interest of the applicant was in a
sufficiently direct relationship to the subject-
matter before the Board that the applicant was
entitled to notice of the hearing on December 21
and an adequate opportunity to present its case.
Even if this does not apply to investigation by local
or regional safety officers, I believe it ought to
apply in formal hearings before the Board.
There remains, however, the question of a possi
ble waiver of rights by the applicant. The respon
dent argued that the applicant had actual knowl
edge of the employees' complaints for weeks, and
that in any event it had sufficient knowledge of
both the hearing and the issue to have appeared
before the Board on December 21 without formal
notice. It is, of course, true that general knowledge
can sometimes take the place of formal notice. But
it seems clear that the notice the applicant had in
the weeks before December 21 was the kind of
vague rumour (Case, Appendix I, at page 19) of
which it could not reasonably be expected to take
cognizance.
The applicant's precise knowledge of the hearing
dated only from the Thursday before the Monday
hearing, and then it was precise only as to the fact
of the hearing, not as to the issues. Whatever
degree of informal knowledge might be considered
to be equivalent to notice, this was not it. The
Board chose to notify the formal parties to the
December 21 hearing on December 2. It would
seem to me that this provides the best measure of
what might be considered a reasonable period of
actual knowledge of the hearing, if coupled with
knowledge of the precise issues.
I would therefore allow the section 28 applica
tion in A-159-88, set aside the decision of the
Public Service Staff Relations Board dated Janu-
ary 21, 1988, and remit the matter to the Board
for a re-hearing at which the applicant would be
allowed standing, following adequate notice to the
applicant.
The applicant in oral argument effectively aban
doned A-700-88. I would therefore dismiss that
section 28 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.