Judgments

[2000] 1 F.C. 135

A-507-97

A-603-96

Gitxsan Treaty Society, as represented by the Gitxsan Health Authority (Applicant)

v.

The Hospital Employees’ Union and The British Columbia Nurses’ Union (Respondents)

Indexed as: Gitxsan Treaty Society v. Hospital Employees’ Union (C.A.)

Court of Appeal, Rothstein J.A.—Vancouver, July 19 and 20, 1999.

Practice — Notice of constitutional question — Motion by Attorney General of Canada to prevent applicant from questioning constitutional validity, applicability, operability of Canada Labour Code — Applicant seeking judicial review of decisions of CLRB — Failing to give notice to Attorney General of constitutional question in proceedings before Board as required by Federal Court Act, ss. 57(1), (2) — S. 57(1) applying to proceedings before Federal Court, federal boards, commissions, other tribunals — Requirement to give notice under s. 57(1) mandatory — Argument notice requirement could not be complied with as Board never convened oral hearing rejected — Notice must be given even if not known whether oral hearing will be held — Form 2.1 (notice form) must be adapted to particular circumstances — If no hearing to be held, tribunal will so advise attorneys general, give deadline for written submissions — Presence of prejudice irrelevant — Attorneys general having demonstrated prejudice — On judicial review evidence extrinsic to record before tribunal whose decision reviewed may be introduced — Issue one of constitutional jurisdiction of Board under Canada Labour Code, not one in which want of jurisdiction of Board only apparent on new evidence — Review of decisions, not determination, by trial de novo, of questions not adequately canvassed in evidence at tribunal, trial court essential purpose of judicial review.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, s. 16(p).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1).

Courts of Justice Act, R.S.O. 1990, c. C.43.

Federal Court Act, R.S.C., 1985, c. F-7, s. 57(1) (as am. by S.C. 1990, c. 8, s. 19), (2) (as am. idem).

Federal Court Rules, C.R.C., c. 663, R. 301.1 (as enacted by SOR/92-43, s. 2), Form 2.1 (as enacted idem, s. 20).

Federal Court Rules, 1998, SOR/98-106, r. 107.

CASES JUDICIALLY CONSIDERED

APPLIED:

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1997), 142 D.L.R. (4th) 385; 41 C.R.R. (2d) 240; 207 N.R. 171; 97 O.A.C. 161; Rex v. Nat Bell Liquors Limited, [1922] 2 A.C. 128 (P.C.).

REFERRED TO:

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 98 D.L.R. (3d) 1; 79 CLLC 14,211; 28 N.R. 107; Watt v. Liebelt, [1999] 2 F.C. 455(C.A.); Westbank First Nation v. British Columbia (Labour Relations Board), [1997] B.C.J. No. 2410 (S.C.) (QL); Kenbrent Holdings Ltd. v. Atkey, [1995] F.C.J. No. 530 (T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Toledo, [1998] F.C.J. No. 284 (T.D.) (QL); In re McEwen, [1941] S.C.R. 542.

MOTION to prevent the applicant from questioning the constitutional validity, applicability or operability of the Canada Labour Code on the ground that the applicant failed to give notice to the Attorney General of Canada of the constitutional question before the Canada Labour Relations Board as required by subsections 57(1) and (2) of the Federal Court Act. Motion granted.

APPEARANCES:

Charles B. Coutts and Paul M. Pulver for applicant.

Carolyn J. Askew for respondent, Hospital Employees’ Union.

Christopher G. Buchanan for respondent, British Columbia Nurses’ Union.

Alan D. Louie and Rodney Yamanouchi for intervener, Attorney General of Canada.

John B. Edmond for intervener, Attorney General of British Columbia.

SOLICITORS OF RECORD:

Schiller, Coutts, Weiler & Gibson, Vancouver, for applicant.

Askew Fiorillo & Glavin, Vancouver, for respondent, Hospital Employees’ Union.

Christopher G. Buchanan, Victory Square Law Office, Vancouver, for respondent, British Columbia Nurses’ Union.

Deputy Attorney General of Canada for intervener, Attorney General of Canada.

John B. Edmond, Legal Services, Ministry of the Attorney General of British Columbia, Victoria, for intervener, Attorney General of British Columbia.

The following are the reasons for order rendered in English by

[1]        Rothstein J.A.: The Attorney General of Canada moves for an order under Rule 107 of the Federal Court Rules, 1998 [SOR/98-106], that the applicant be prevented from questioning the constitutional validity, applicability or operability of the Canada Labour Code[1] in these judicial reviews of decisions of the Canada Labour Relations Board (CLRB).[2] The grounds are that the applicant failed to give notice to the Attorney General of Canada of the constitutional question in the proceedings before the CLRB as required by subsections 57(1) and (2) of the Federal Court Act,[3] that the Attorney General is prejudiced thereby, and that there is no proper factual foundation for the constitutional question to be argued in this Court. Subsections 57(1) and (2) provide:

57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).

(2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued.

The Attorney General of Canada is supported in this motion by the respondents and by the Attorney General of British Columbia.

[2]        For the purposes of this motion, the facts may be briefly stated. By decision No. 1552 of July 5, 1996, the CLRB certified the Hospital Employees’ Union as the bargaining agent for a unit comprising all employees of the Gitxsan Treaty Society as represented by the Gitxsan Health Authority engaged in providing community health services in the province of British Columbia excluding the executive director, regional managers and medical doctors.

[3]        The British Columbia Nurses’ Union and the applicant sought reconsideration of that decision. By decision dated March 13, 1997, a reconsideration panel of the CLRB denied the applicant’s reconsideration application. By decision issued June 12, 1997, the British Columbia Nurses’ Union was certified to be the bargaining agent for a unit comprising all registered nurses and the registered nurses were excluded from the Hospital Employees’ Union bargaining unit.

[4]        In Court file A-603-96, the applicant seeks judicial review of the July 5, 1996 decision of the Board and in Court file A-507-97, the applicant seeks judicial review of the June 12, 1997 decision of the Board.

[5]        Applicant’s counsel explained that it is the applicant’s position that the Hereditary Chiefs of the Gitxsan people had the Aboriginal right to control the delivery of health care to the Gitxsan people, that labour relations falls under the delivery of health care services to the Gitxsan and that the decision of the CLRB to certify bargaining agents unjustifiably infringes the Aboriginal right at issue contrary to subsection 35(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. Subsection 35(1) provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

[6]        The applicant concedes that no notice of constitutional question was served on the Attorney General of Canada or the attorneys general of the provinces with respect to the proceedings before the CLRB. However, the applicant says first, because there was no hearing before the CLRB, it was not required to provide the notice contemplated under subsection 57(1); second, the attorneys general have not demonstrated prejudice by not being given notice and absent prejudice the attorneys general cannot rely on subsection 57(1); and third, any necessary constitutional evidence that the attorneys general might have introduced before the CLRB may be introduced in this Court.

[7]        A preliminary question is whether the CLRB had the jurisdiction to consider the constitutional question raised by the applicant. All parties and interveners argued that it did. They relied on paragraph 16(p) of the Canada Labour Code which gives the Board jurisdiction to decide any question that may arise in proceedings, as well as the Supreme Court decisions in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)[4] and Northern Telecom Ltd. v. Communications Workers of Canada.[5] I proceed on the basis that the CLRB had jurisdiction to consider the constitutional question.

[8]        As to whether notice of the constitutional question need have been served under subsection 57(1) of the Federal Court Act, with respect to the proceedings before the CLRB, the applicant says there was no oral hearing before the Board. Form 2.1 provided in the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 20)], required that notice be given of the date, time and place when the constitutional question was to be “heard”. As the Board never convened an oral hearing, the applicant could not comply with subsection 57(1) because it could not give notice of any date, time or place of a hearing. Part of Form 2.1 provided:

FORM 2.1

…

You are hereby advised that (name of party) intends to question the constitutional validity, applicability or effect (state which) of (identify the particular provision) in this proceeding, to be heard on (day, date and time) at (place).

[9]        Form 2.1 must be adapted to the particular circumstances. Rule 301.1 [as enacted idem, s. 2] of the Federal Court Rules provided:

Rule 301.1 Notice of a constitutional question under section 57 of the Act shall be in substantially the same form as Form 2.1 set out in the Appendix. [Emphasis added.]

I emphasize the word “substantially” to highlight that the Rules recognize that Form 2.1 may not, as set out, apply strictly in all cases. Subsection 57(1) applies not only to proceedings in the Federal Court but also to proceedings before federal boards, commissions or other tribunals. Some tribunals such as the CLRB do not hold oral hearings in all cases. When it is not known whether an oral hearing will be held, any party wishing to raise a constitutional challenge to the validity, applicability or operability of a statute must still notify the attorneys general of its intention to do so. While I do not here prescribe the form of notice, in the circumstances, I would think it advisable for counsel to indicate that an oral hearing may not be convened and that the attorneys general should make it known to the tribunal that they wish to make written or oral submissions. If a hearing is scheduled, a further notice of the date, time and place is a simple matter of follow up. If no hearing is scheduled, then the tribunal will undoubtedly advise the attorneys general and give them a deadline for written submissions. I am not persuaded by the applicant’s first argument.

[10]      As to the question of the attorneys general not demonstrating prejudice, whether subsection 57(1) is mandatory has not conclusively been decided by the Supreme Court of Canada. However, except in limited circumstances which are not applicable here, I think the weight of judicial authority is in favour of the provision being mandatory. The question was canvassed by Sopinka J. in Eaton v. Brant County Board of Education[6] where he explained why he was inclined to the view that subsection 57(1) is mandatory:

In view of the purpose of s. 109 of the Courts of Justice Act, I am inclined to agree with the opinion of the New Brunswick Court of Appeal in D.N. v. New Brunswick (Minister of Health & Community Services), supra, and Arbour J.A. dissenting in Mandelbaum, supra, that the provision is mandatory and failure to give the notice invalidates a decision made in its absence without a showing of prejudice. It seems to me that the absence of notice is in itself prejudicial to the public interest. I am not reassured that the Attorney General will invariably be in a position to explain after the fact what steps might have been taken if timely notice had been given. As a result, there is a risk that in some cases a statutory provision may fall by default.

There is, of course, room for interpretation of s. 109 and there may be cases in which the failure to serve a written notice is not fatal either because the Attorney General consents to the issue’s being dealt with or there has been a de facto notice which is the equivalent of a written notice. It is not, however, necessary to express a final opinion on these questions in that I am satisfied that under either strand of authority the decision of the Court of Appeal is invalid. No notice or any equivalent was given in this case and in fact the Attorney General and the courts had no reason to believe that the Act was under attack. Clearly, s. 109 was not complied with and the Attorney General was seriously prejudiced by the absence of notice.[7]

I think these comments suggest that the requirement to give notice in accordance with subsection 57(1) is mandatory (except in limited circumstances, i.e. where the attorneys general consent or where there has been de facto notice) and that the presence or absence of prejudice is irrelevant.

[11]      In any event, the attorneys general have demonstrated prejudice in this case. They advance a number of areas in which constitutional evidence would be relevant in determining the constitutional question put forward by the applicant. In particular, facts relating to the nature of the Aboriginal right claimed, whether the Aboriginal right has existed continuously, whether it has been infringed and if infringed whether the infringement is justified, are all legitimate evidentiary areas. See for example, Watt v. Liebelt.[8] I am satisfied that the attorneys general have demonstrated prejudice. The second argument of the applicant cannot be accepted.

[12]      As to the applicant’s third argument, that constitutional evidence may be introduced in this Court, the applicant has made reference to some authorities that suggest that where jurisdictional issues are in question, evidence may be introduced at the judicial review stage. See for example, Westbank First Nation v. British Columbia (Labour Relations Board);[9] Kenbrent Holdings Ltd. v. Atkey;[10] and Canada (Minister of Citizenship and Immigration) v. Toledo.[11]

[13]      In In re McEwen,[12] Rinfret J. refers to the seminal case of Rex v. Nat Bell Liquors Limited[13] in which Lord Sumner, delivering the judgment of the Privy Council, squarely addressed the issue. Having regard to the dicta of Lord Sumner, I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court. In McEwen, Rinfret J. quotes from Nat Bell Liquors as follows:

The subject was fully considered in Rex v. Nat Bell Liquors Limited. In that case, Lord Sumner, delivering the judgment of their Lordships of the Privy Council, said (p. 153):

In Reg. v. Bolton, Lord Denman, in a well-known passage, says: “The case to be supposed is one * * * in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do * * * is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law * * * Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction; the conviction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had mis-stated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to show to us by affidavits what the real charge was, and, that appearing to have been insufficient, we would quash the conviction; * * * But, as in this latest case, we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It will be observed, however, that here we receive them, not to show that the magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry * * *

At page 154:

The law laid down in Reg. v. Bolton has never since been seriously disputed in England.

At page 160:

When it is contended that there are grounds for holding that a decision has been given without jurisdiction, this can only be made apparent on new evidence brought ad hoc before the Superior Court. How is it ever to appear within the four corners of the record that the members of the inferior court were unqualified, or were biased, or were interested in the subject-matter?[14]

In the case at bar, the issue is one of the constitutional jurisdiction of the CLRB under the Canada Labour Code. However, this is not a case in which the want of jurisdiction of the Board could only be made apparent on new evidence. The opportunity to introduce new evidence before the reviewing Court is not open simply on the grounds that the applicant chose not to introduce sufficient evidence before the Tribunal or did not comply with required procedure so as to enable the attorneys general to have the opportunity to do so.

[14]      In Eaton, Sopinka J. said that it was essential for the Supreme Court to have the benefit of a record that is the result of a thorough examination of the constitutional issues in the court or tribunal from which the appeal arises. He stated:

The purpose of s. 109 is obvious. In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise.[15]

[15]      In my respectful view, the same principle is applicable in this Court. The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court. The latter is what the applicant is inappropriately proposing for this judicial review. This is not the necessity to which Lord Sumner was referring in Nat Bell Liquors, supra. The Court will not entertain new evidence in these circumstances.

[16]      The motion of the Attorney General of Canada will be granted with costs. In this judicial review the applicant will not be permitted to question the constitutional validity, applicability or operability of the Canada Labour Code.

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