Judgments

     A-338-98

Dynamex Canada Inc. (Applicant)

v.

Canadian Union of Postal Workers (CUPW) (Respondent)

and

Canada Labour Relations Board (Intervener)

     A-339-98

Dynamex Canada Inc. (Applicant)

v.

Canadian Union of Postal Workers (CUPW) (Respondent)

and

Canada Labour Relations Board (Intervener)

Indexed as: Dynamex Canada Inc.v. Canadian Union of Postal Workers (C.A.)

Court of Appeal, Stone, Létourneau and Sexton JJ.A. "Toronto, December 18, 1998; Ottawa, March 19, 1999.

Labour relations — Certification — Reapplications — Authority in CLRB, pursuant to CLRB Regulations, s. 31(3), to abridge time period for filing new certification application — Board did not exceed jurisdiction in adopting Regulations, s. 31(3) and correctly interpreted its Code, s. 15(e) mandate.

The Canada Labour Relations Board decided, pursuant to subsection 31(3) of the Canada Labour Relations Board Regulations, 1992, to abridge the six-month time period (established in subsection 31(1) of the Regulations) for filing a new application for certification by CUPW for a unit of applicant's employees at Winnipeg. The first application for certification had been rejected three months earlier because the respondent had underestimated the number of employees included in the unit. The decision to abridge the time period enabled the Board to consider the application for certification, and to certify the respondent as the bargaining agent of the unit of employees following the holding of a representation vote.

Subsection 31(1) stated that a second application for certification would not be heard before six months have elapsed from the date of rejection of the first application. Subsection 31(3) gave the Board discretion to abridge that time period.

In these applications for judicial review of the two decisions, the applicant argued that subsection 31(3) was not validly enacted under paragraph 15(e) of the Canada Labour Code (authorizing the Board to make regulations respecting the specification of that time period). It was argued that subsection 31(3) gave the Board complete discretion to abridge the time bar, and that this amounted to a complete redelegation by the Board to itself of a power conferred on it by Parliament in a form different than that authorized by the Code. Another issue was whether the Board was entitled to abridge the time bar imposed in subsection 31(1) pursuant to paragraph 16(m) of the Code (conferring the general power on the Board to abridge or enlarge time periods in relation to proceedings before it).

Held (Létourneau J.A. dissenting), the applications should be dismissed.

Per Sexton J.A.: Parliament intended to give the Board flexibility in determining the period that must be awaited. In this regard, the Board's decision to abridge the time period was a valid exercise of the authority conferred by Parliament and could be justified under both subsection 31(3) of the Regulations and paragraph 16(m) of the Code.

Subsection 31(3) of the Regulations was validly enacted under paragraph 15(e) of the Code. Paragraph 15(e) should be interpreted using the purposive approach. The aim of the Code is primarily to foster constructive settlement of disputes and free collective bargaining. The Board's purpose is to effectively manage labour relations with the goal of maintaining a high level of industrial peace. The Board must be given flexibility to apply the system in a manner that will best enable it to accomplish its task. With respect to reapplications, the Board purported to exercise the authority conferred by the Code (15(e)) by creating a general rule (31(1)) which included retaining flexibility to abridge (31(3)). Parliament intended the Board to draw on its own expertise and experience to determine in which circumstances abridging the time bar would better maintain labour relations. It is doubtful that Parliament intended to fix stringent parameters on the manner in which the Board must deal with the time bar for reapplications for certification. Furthermore, if the applicant were correct in saying that once the Board has enacted a specific time limit, it is then prohibited from abridging that time, then this would alter paragraph 16(m) of the Code, which gives the Board that power.

The present case did not involve the redelegation of a power to legislate in one form into the power to legislate in another form, nor did it involve an improper subdelegation of power where the responsibility and obligation to exercise a power set out in a statute has been transferred inappropriately to another body.

The fact that it retained flexibility was consistent with the statutory scheme created by Parliament.

A holding that subsection 31(3) is ultra vires would signify that Parliament contemplated that where there is no certified bargaining agent and no valid reason for not allowing one, the Board should not have the power to abridge the time bar it has established. This would amount to applying section 31 in a punitive manner that is inconsistent with the purposes of the Code.

The Board's decision to abridge was also authorized by paragraph 16(m) of the Code. Parliament clearly intended the Board to have flexibility in dealing with time periods in matters before it, including in the certification process. The imposition of strict and unalterable time periods would frustrate one of the obvious purposes of the Code which is to foster industrial peace through effective labour relations. The specification that the Board may abridge the time limits set in section 24 of the Code was not redundant and therefore the power to vary time periods in section 24 was not a basis for finding that paragraph 16(m) does not confer the power to amend time periods set by regulation. There was no basis to the applicant's argument that paragraph 16(m) did not apply because this matter was not "in relation to any proceeding before it". The application for certification was before the Board pursuant to section 24. Quite simply, the Board was seized with jurisdiction to consider whether the application was submitted in accordance with the statutory scheme.

Per Stone J.A. (concurring): The applications should be dismissed.

Since this was a jurisdictional matter, "correctness" was the applicable standard. The wording of paragraph 15(e ) must be viewed not only in its own immediate context but also in the context of the Code as a whole.

It was to be noticed that paragraph 15(e) did not require the Board by regulation to "specify" a time period. By empowering the Board to make regulations of general application "respecting . . . the specification" of the period of time, Parliament intended the Board to have somewhat greater latitude. The presence of the word "respecting" in paragraph 15(e ) supported this view. Moreover, the foregoing interpretation furthers the purposes of the Code and the specialized role of the Board. It was consistent with the pragmatic and functional approach now so firmly enshrined in the Supreme Court's recent cases.

The Board did not exceed its jurisdiction in adopting subsection 31(3) of its Regulations, and it correctly interpreted its paragraph 15(e) mandate. Consequently, the Board's decision to abridge the time period should not be interfered with.

Per Létourneau J.A. (dissenting): The applications should be allowed. Neither subsection 31(3) of the Regulations, nor paragraph 16(m) of the Code gave the Board jurisdiction to abridge the six-month limitation period established pursuant to subsection 31(1) of the Regulations.

Subsection 31(3) of the Regulations was ultra vires because it amounted to nothing less than the attribution of a discretionary power by the Board to itself by means of a regulation. This was clearly an illegal delegation of powers according to well established administrative law principles. That provision cannot be saved by a purposive approach or a purposive interpretation of section 31 of the Regulations or paragraph 15(e) of the Code. Indeed, a purposive approach cannot be attributive of a power if the text of the provision itself does not grant such power or denies it expressly or impliedly. It is a fundamental principle of administrative law that a body empowered by statute to make regulations cannot use that regulatory power to give itself the discretion to decide issues on a case-by-case basis. Parliament granted the Board, in paragraph 15(e) of the Code, the power to establish norms of general application with respect to the time limit applicable to the renewal of an application for certification and, as a consequence, did not intend the Board to decide such time limit on a case-by-case basis. The fact that the Board has fixed a six-month time period in subsection 31(1) becomes of no significance and of no effect if this norm can be set aside at any time at the Board's discretion. It was no answer for the Board to say that it had so far exercised its discretion in a responsible manner. It was clear that Parliament intended that the discretion of the Board with respect to applications for certification be limited and statutorily controlled. Such intent is found in subsections 24(2) and (3) of the Code.

Paragraph 16(m) of the Code is a general provision of broader application than section 24 which deals specifically with one type of proceeding " an application by a trade union to be certified as the bargaining agent for a unit. Subsection 24(1) clearly states that such application is subject to any regulations made by the Board under paragraph 15(e ). Because the limitation period applicable to the renewal of an application for certification is specifically dealt with in section 24 and paragraph 15(e) of the Code and subsection 31(1) of the Regulations, the general provision of paragraph 16(m) cannot be resorted to to circumvent the legislative intent expressed in these specific provisions.

The Court's task was not to interpret the provisions to find powers that the Board wants, thinks it has or would like to have. The Court's duty was to interpret these provisions to find the powers that the Board actually has and Parliament says it has.

Furthermore, paragraph 16(m) provides that the Board possesses the power described therein "in relation to any proceeding before it" i.e. pending before it. Yet in the case at bar, there was no proceeding before the Board. On the one hand, the initial application for certification had been refused and these proceedings were terminated. On the other hand, subsection 31(1) not only barred the beginning of a new proceeding until the limitation period has expired, but also deprived the Board of its jurisdiction with respect thereto.

statutes and regulations judicially considered

An Act to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, S.C. 1998, c. 26, s. 5(4).

Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(a) (as am. by S.C. 1977-78, c. 27, s. 40), 121 (as am. by S.C. 1972, c. 18, s. 1).

Canada Labour Code, R.S.C., 1985, c. L-2, ss. Preamble, 15(e), 16(m), 24, 27, 28, 29(2).

Canada Labour Relations Board Regulations, SOR/73-205, s. 31.

Canada Labour Relations Board Regulations, 1992, SOR/91-622, s. 31(1),(3).

Cities and Towns Act, R.S.Q. 1941, c. 233, ss. 426, 526 (as am. by S.Q. 1956-57, c. 91, s. 4).

Code of Civil Procedure, R.S.Q. 1977, c. C-25, art. 33.

Federal Court Act, R.S.C., 1985 c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).

Immigration Act, R.S.C. 1952, c. 325, s. 61.

Immigration Regulations, P.C. 1954-1351, s. 20(4).

Income Tax Act, S.C. 1970-71-72, c. 63, ss. 3(a), 221(1)(d), 231(3).

Milk Act, 1965 (The), S.O. 1965, c. 72, s. 8(1),(6).

Ont. Reg. 294/65, s. 6.

Ont. Reg. 52/68, s. 4(2).

Planning Act (The), R.S.O. 1970, c. 349, s. 35a(2) (as enacted by S.O. 1973, c. 168, s. 10).

Railway Act, R.S.C. 1970, c. R-2, s. 328(1).

cases judicially considered

considered:

U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; (1996), 135 D.L.R. (4th) 385; 40 Admin. L.R. (2d) 1; 96 CLLC 210-037; 198 N.R. 99; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; (1995), 121 D.L.R. (4th) 385; 27 Admin. L.R. (2d) 1; 95 CLLC 210-009; 177 N.R. 1; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; 14 Admin. L.R. 72; 84 CLLC 14,069; Clarke v. Clarke, [1990] 2 S.C.R. 795; (1990), 101 N.S.R. (2d) 1; 73 D.L.R. (4th) 1; 275 A.P.R. 1; 113 N.R. 321; 28 R.F.L. (3d) 113; Upper Lakes Shipping Ltd. v. Sheehan et al., [1979] 1 S.C.R. 902; (1979), 95 D.L.R. (3d) 25; 79 CLLC 14,192; 25 N.R. 149; Attorney General of Canada v. Brent, [1956] S.C.R. 318; (1956), 2 D.L.R. (2d) 503; 114 C.C.C. 296; Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario et al., [1973] S.C.R. 131; (1972), 30 D.L.R. (3d) 559; Canadian Institute of Public Real Estate Companies et al. v. Corporation of the City of Toronto, [1979] 2 S.C.R. 2; (1979), 7 M.P.L.R. 39; 8 O.M.B.R. 385; 25 N.R. 108; Air Canada v. City of Dorval, [1985] 1 S.C.R. 861; (1985), 19 D.L.R. (4th) 401; 13 Admin. L.R. 42; 59 N.R. 177; Verdun, City of v. Sun Oil Co., [1952] 1 S.C.R. 222; [1952] 1 D.L.R. 529; Cdn. Pacific Ltd. v. Canada (Cdn. Transport Comm.) (1988), 31 Admin. L.R. 138; 86 N.R. 360 (F.C.A.).

referred to:

Bell Canada, Montreal, Quebec and Communications Workers of Canada and Communications Union Canada, [1979] 2 Can LRBR 429; (1979), 30 di 104; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; (1993), 108 D.L.R. (4th) 1; 17 Admin. L.R. (2d) 141; 93 CLLC 14,062; 160 N.R. 321; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] CTC 20; 83 DTC 5041; 46 N.R. 41; James Richardson & Sons, Ltd. v. Minister of National Revenue et al., [1984] 1 S.C.R. 614; (1984), 9 D.L.R. (4th) 1; [1984] 4 W.W.R. 577; 7 Admin. L.R. 302; [1984] CTC 345; 84 DTC 6325; 54 N.R. 241; British Columbia (Milk Board) v. Grisnich, [1995] 2 S.C.R. 895; (1995), 126 D.L.R. (4th) 191; 7 B.C.L.R. (3d) 1; 30 Admin. L.R. (2d) 54; 183 N.R. 39; 100 W.A.C. 81; Schwartz v. Canada, [1996] 1 S.C.R. 254; (1996), 113 D.L.R. (4th) 289; 17 C.C.E.L. (2d) 141; 10 C.C.P.B. 213; [1996] 1 C.T.C. 303; 96 DTC 6103; 193 N.R. 241; Danjou v. Marquis (1879), 3 S.C.R. 251.

authors cited

Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979. "specify".

Canadian Oxford Dictionary. Toronto: Oxford University Press, 1998. "respecting".

Clarke, Graham J. Canada Labour Relations Board: An Annotated Guide. Aurora (Ont.): Canada Law Book, 1998.

Dussault, R. and L. Borgeat. Administrative Law: A Treatise, vol. 1, 2nd ed. Toronto: Carswell, 1985.

Edgar, S. G. G. Craies on Statute Law, 7th ed. London: Sweet & Maxwell, 1971.

Garant, Patrice. Droit administratif, vol. 1, Cowansville (Qué.): Éditions Yvon Blais, 1996.

Pigeon, Louis-Philippe. Rédaction et interprétation des lois. Québec: Éditeur officiel, 1978.

Shorter Oxford English Dictionary, Vol. II, 3rd ed., Oxford: Clarendon Press, 1969. "specify".

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

APPLICATIONS for judicial review of two decisions by which the Canada Labour Relations Board first abridged the six-month time period for filing a new application for certification for a unit of applicant's employees, and then certified the respondent as bargaining agent. Applications dismissed.

appearances:

Guy Dussault for applicant.

Mel Myers, Q.C., for respondent.

Johane Tremblay for intervener.

solicitors of record:

Flynn, Rivard, Québec, for applicant.

Myers Weinberg Kussin Weinstein Bryk, Winnipeg, for respondent.

Canada Labour Relations Board, for intervener.

The following are the reasons for judgment rendered in English by

[1]Stone J.A. (concurring): I have had the advantage of reading in draft the reasons for judgment of both of my colleagues.

[2]Two decisions of the Canada Labour Relations Board (the Board) are before the Court on separate applications for judicial review. On April 27, 1998, the Board decided to abridge the six-month time period established in subsection 31(1) of the Canada Labour Relations Board Regulations, 1992¹ (the Regulations) for the filing of a new application for certification by the respondent for a unit of employees of the applicant at Winnipeg, Manitoba. The decision enabled the Board to consider the application for certification, which it did on May 7, 1998 when it decided to certify the respondent as the bargaining agent of the unit of employees described in that decision following the holding of a representation vote.

[3]The respondent's earlier application for certification on March 24, 1997 was dismissed on July 30, 1997. The new application for certification was filed on November 7, 1997, slightly more than three months after the earlier application had been dismissed. The central issue facing this Court is whether the Board possessed authority under the Canada Labour Code² (the Code) and the Regulations to abridge the time period in question for filing the new application. If it did, then the decision to certify is unassailable. If it did not, the decision to certify could not stand.

[4]The applicant argued before the Board that as the Board had dismissed the respondent's application for certification in respect of substantially the same unit of employees, the second application should be dismissed as an abuse of the Board's process. The respondent submitted that as the unit of employees was substantially the same as the one proposed in the rejected application the Board should exercise its discretion pursuant to subsection 31(3) of the Regulations by abridging the six-month time period specified in subsection 31(1) thereof.

[5]In deciding to abridge this time period, the Board noted that the period "has no punitive purpose" and that it:³

. . . is meant to foster industrial peace by minimizing outside causes of disruption in existing collective bargaining relationships.

[6]The Board also noted that as there was no incumbent bargaining agent on the scene, the respondent's application for certification was not directed at replacing a certified bargaining agent which had not been given a reasonable opportunity to bargain collectively with the employer. The Board further noted that the reason why the first application for certification had been rejected was that the respondent had "underestimated the number of employees included in the unit". It found that the respondent had since gone "through the trouble of arranging another organizational campaign to secure the requisite employee support to earn the right to a vote." In its view:⁴

The Board cannot be oblivious to the energy, time and effort spent by the Union in carrying out this process and unjustifiably deny it the opportunity to represent these employees merely due to a technical error.

[7]The Board then concluded:⁵

In the present case, the Board is of the opinion that to subject the timeliness of the Union's application for certification to the accuracy of its assessment of the number of employees in the bargaining unit would defeat the purpose of the Code. For these reasons, the Board, exercising its discretion pursuant to section 31(3) of the Board's Regulations, hereby abridges the six-month time period specified in section 31(1) of the said Regulations and allows CUPW to file its application for certification dated November 7, 1997.

[8]The Board proceeded to determine the unit of employees to be appropriate for collective bargaining, and ordered that a representative vote be taken "to ascertain the wishes of the employees" included in the unit.

[9]In deciding as it did the Board was guided by its own jurisprudence, particularly the principles set out in Bell Canada, Montreal, Quebec and Communications Workers of Canada and Communications Union Canada⁶ which in turn was based upon certain decisions of the provincial labour relations boards of Ontario and British Columbia.

[10]The argument that subsection 31(3) of the Regulations is ultra vires was raised for the first time in this Court. The applicant contends that by the very language of paragraph 15(e) of the Code, the Board can do no more than specify by regulation a time period for the filing of a second application for certification. That paragraph reads:

15. The Board may make regulations of general application respecting

    . . .

(e) the specification of the period of time after which the Board may receive an application from a trade union for certification as the bargaining agent for a unit where the Board has refused an application from the trade union for certification in respect of the same or substantially the same unit;

[11]It is not disputed that the Board did specify a time period in subsection 31(1) of the Regulations. That subsection reads:

31. (1) Where the Board has rejected an application for certification by a trade union or a council of trade unions, the Board shall not consider a new application for certification from that trade union or council of trade unions in respect of the same or what the Board considers to be substantially the same bargaining unit until six months have elapsed from the date on which the application was rejected.

[12]What is contested is that the Board exceeded its regulation-making authority under paragraph 15(e) by adopting subsection 31(3) of the Regulations. That subsection reads:

31. . . .

(3) Notwithstanding subsections (1) and (2), the Board may, on its initiative or at the request of a trade union, a council of trade unions or an employee, abridge the time period specified in subsection (1) or (2).

Subsection 31(2) is not relevant to the issue.

[13]The Board was granted leave to intervene in these matters. It asserts that the authority to abridge the time was validly conferred by subsection 31(3). Such authority has been a feature of the Board's Regulations for many years. By section 31 of the Regulations as adopted by the Board in 1973 pursuant to the predecessor of paragraph 15(e),⁷ the Board specified a period of six months "unless the Board consents to receive the application prior to the expiry of that period".

[14]The applicant submits that paragraph 15(e) of the Code confers a limited power on the Board, viz., of making regulations of general application specifying a period of time. It argues that the Board did just that in subsection 31(1), and that it had no residual authority under paragraph 15(e) to go further and adopt subsection 31(3). The latter subsection, it contends, does not purport to specify a period of time but rather to leave to the Board's discretion in the circumstances of a given case the abridging of the time period specified in subsection 31(1).

[15]The standard of review of an administrative tribunal's decision varies according to whether the matter is jurisdictional or is one that falls within the jurisdiction of the tribunal. If the matter is jurisdictional, the decision-maker is held to a standard of "correctness". If, on the other hand, the matter is within the tribunal's jurisdiction to decide, the tribunal is held to the lesser standard of "patent unreasonableness". The difficult task of determining which standard is to be applied is assisted by the approach that has been developed by the Supreme Court of Canada over the past twenty years.

[16]The determination of whether a matter is jurisdictional as opposed to being one falling within jurisdiction is to be made by applying the pragmatic and functional approach enunciated by Beetz J. in U.E.S., Local 298 v. Bibeault.⁸ The purpose served by that approach is that of discovering Parliamentary intention. To accomplish that objective, Beetz J. directed the courts to examine:⁹

. . . not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction.

[17]The impact of the pragmatic and functional approach in this branch of the law has been profound. By adopting that approach the Supreme Court of Canada "has eschewed a formalistic approach".¹⁰ Indeed the pragmatic and functional approach has been described as "the very opposite of a textual and formalistic approach".¹¹

[18]It is now clear that a court must not be too astute to regard as jurisdictional that which may be doubtfully so.¹² That this has been a consistent theme of the decided cases in the Supreme Court of Canada is reflected in the judgment of Cory J. in International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., where he stated:¹³

At the outset it should be stated, once again, that it would be all too easy for courts to find that empowering provisions of statutes creating administrative tribunals are jurisdictional in nature, thereby increasing the likelihood that their jurisdiction will be unnecessarily limited. The result of adopting such an approach would be that a great many decisions of the tribunals would be required to be correct in the eyes of the courts. There have been very salutary warnings sounded against the courts taking such a position. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("CUPE"), at p. 233, Dickson J., as he then was, framed the warning in these clear words:

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.

Similarly, in Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at p. 181, Iacobucci J. observed that:

. . . when dealing with a tribunal as specialized as the Canada Labour Relations Board, inherent in whose functioning is the need to resolve disputes quickly and with finality, courts should be reluctant to characterize a provision as jurisdictional unless it is clear that it should be so labelled . . . .

To the same effect in Teamsters Union v. Massicotte, [1982] 1 S.C.R. 710, Laskin C.J., at p. 724, stated that:

. . . mere doubt as to correctness of a labour board interpretation of its statutory power is no ground for finding jurisdictional error, especially when the labour board is exercising powers confided to it in wide terms to resolve competing contentions.

If these warnings are not heeded, the operation and indeed the whole concept of administrative tribunals may be jeopardized. These tribunals are often set up to operate in areas where specific expertise, experience, and sensitivity to the particular problems involved are essential to their resolution. Administrative tribunals are designed to function expeditiously, inexpensively, and with less formality than courts. There is little doubt either of the need for these tribunals or of the very important role they fulfil in Canadian society.

It has often been very properly recognized that labour relations boards exemplify a highly specialized type of administrative tribunal. Their members are experts in administrating comprehensive labour statutes which regulate the difficult and often volatile field of labour relations. Through their constant work in this sensitive area, labour boards develop the special experience, skill and understanding needed to resolve the complex problems of labour relations. There were very sound reasons for the establishment of labour boards and the protection of their decisions by broad privative clauses. Parliament and provincial legislatures have clearly indicated that decisions of these boards on matters within their jurisdiction should be final and binding. The courts could all too easily usurp the role of these boards by characterizing the empowering legislation according them authority as jurisdiction limiting provisions which would require their decisions to be correct in the opinion of the court. Quite simply, courts should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction.

[19]The wording of paragraph 15(e) must be viewed not only in its own immediate context but also in the context of the Code as a whole. The policy objectives underlying the Code's adoption are recited in Part I. These include the recognition and support of "freedom of association and free collective bargaining." The responsibility for certifying a trade union as bargaining agent of a unit of employees appropriate for collective bargaining is that of the Board under sections 24, 27 and 28 of the Code. In this way the principles of freedom of association and free collective bargaining are recognized and supported. The expertise of the Board's members in discharging their duties under the Code and the presence of a strong privative clause have been emphasized by the Supreme Court for determining whether a question is jurisdictional or one falling within jurisdiction. Thus in Canadian Broadcasting Corp. , Iacobucci J. stated:¹⁴

The labour relations tribunal, in its federal and provincial manifestations, is a classic example of an administrative body which is both highly specialized and highly insulated from review. Decisions of the federal Board are protected by a broad privative clause, found in s. 22 of the Code. The Canada Labour Relations Board must develop a coherent and workable structure for the application of the numerous statutory provisions which govern the labour relations of the employers and employees whose operations fall within federal jurisdiction. In order for these workers and their employers to receive rapid resolution of their disputes in a manner which can be rationalized with their other rights and duties under the Canada Labour Code, the decisions of the Board cannot routinely be overturned by the courts whenever they disagree with the Board's treatment of an isolated issue. Thus the applicable standard of judicial review is one of patent unreasonableness so long as the Board has not committed a jurisdictional error.

Again in Prince Rupert Grain, Cory J. stated:¹⁵

This conclusion is clearly confirmed by the broad and strongly worded privative clause set out in s. 22 of the Canada Labour Code. It has been held on numerous occasions that such a clause gives a very clear signal to the courts that decisions of a board or tribunal operating under the protection of such a privative clause must be protected from strict judicial scrutiny.

[20]With all of this guidance in mind I turn now to consider whether the Board erred in a way that would justify the interference of this Court. I should say at this juncture that as the power to abridge the subsection 31(1) time period depends on whether the Board was endowed with authority under paragraph 15(e) of the Code to adopt subsection 31(3) of the Regulations, the applicable standard of review is that of correctness. This much seems clear from the following words of Beetz J. in Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board:¹⁶

[A jurisdictional error] relates generally to a provision which confers jurisdiction, that is, one which describes, lists and limits the powers of an administrative tribunal, or which is (translation) "intended to circumscribe the authority" of that tribunal, as Pigeon J. said in Komo Construction Inc. v. Commission des relations de travail du Québec , [1968] S.C.R. 172, at p. 175. A jurisdictional error results generally in an excess of jurisdiction or a refusal to exercise jurisdiction, whether at the start of the hearing, during it, in the findings or in the order disposing of the matter. Such an error, even if committed in the best possible good faith, will result nonetheless in the decision containing it being set aside, because it also falls within s. 28(1)(a) of the Federal Court Act.

[21]If, of course, the wording of paragraph 15(e) clearly limited the Board's regulation-making authority thereunder to that of "specifying" the period of time before which a subsequent application for certification could be received by the Board, that would be practically conclusive of the matter.¹⁷ Such a conclusion would necessarily flow from accepted dictionary definitions of the word "specify" as meaning: "To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly,"¹⁸ or: "To mention specifically; to state in full and explicit terms; to point out; to tell or state precisely or in detail; to particularize, or to distinguish by words one thing for another."¹⁹

[22]It is to be noticed, however, that paragraph 15(e) does not require the Board by regulation to "specify" a time period. The context appears somewhat broader. By that paragraph the Board is empowered to make regulations "of general application respecting . . . the specification of the period of time". If the Board's mandate had been limited by paragraph 15(e ) to that of "specifying" a time period, it would be arguable that the Board, by regulation, could do no more than specify the time period. Parliament, however, has not so limited the Board's mandate under that paragraph. It appears, instead, that by empowering the Board to make regulations of general application "respecting . . . the specification" of the period of time, Parliament intended the Board to have somewhat greater latitude. The presence of the word "respecting" in paragraph 15(e ) supports this view. Like the words "in respect of"²⁰ the word "respecting" is of broad import.²¹ Moreover, the foregoing interpretation furthers the purposes of the Code and the specialized role of the Board. In my view, it is consistent with the pragmatic and functional approach now so firmly enshrined in the Supreme Court's recent jurisprudence.

[23]I am satisfied, therefore, that the Board did not exceed its jurisdiction in adopting subsection 31(3) of its Regulations, and that it correctly interpreted its paragraph 15(e) mandate. Accordingly, as subsection 31(3) is not ultra vires, the Board's decision to abridge the time period on April 27, 1998 should not be interfered with. It follows, of course, that nor should this Court interfere with the Board's decision of May 7, 1998.

[24]In view of the foregoing conclusions, it is not necessary to express a view on whether the Board also had power to abridge the time period pursuant to paragraph 16(m) of the Code.

[25]I would dismiss these section 28 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)] applications with costs to the respondent.

The following are the reasons for judgment rendered in English by

[26]Létourneau J.A. (dissenting): I have had the benefit of reading the reasons for judgment of both of my colleagues. Unfortunately, I cannot share their views that the Canada Labour Relations Board (the Board) had jurisdiction under either subsection 31(3) of the Canada Labour Relations Board Regulations, 1992 (the Regulations) or paragraph 16(m) of the Canada Labour Code (the Code) to abridge the six-month limitation period established by subsection 31(1) of the said Regulations.

Whether subsection 31(3) of the Regulations is ultra vires

[27]Subsection 31(1) of the Code fixes the period that must lapse before the Board can acquire jurisdiction to consider a new application by a trade union to be certified as the bargaining agent for a unit. Subsection 31(3) gives the Board discretion to abridge or waive that period. They read:

31. (1) Where the Board has rejected an application for certification by a trade union or a council of trade unions, the Board shall not consider a new application for certification from that trade union or council of trade unions in respect of the same or what the Board considers to be substantially the same bargaining unit until six months have elapsed from the date on which the application was rejected.

    . . .

(3) Notwithstanding subsections (1) and (2), the Board may, on its initiative or at the request of a trade union, a council of trade unions or an employee, abridge the time period specified in subsection (1) or (2).

[28]In my view, subsection 31(3) of the Regulations is ultra vires the powers of the Board and cannot be saved by a purposive approach or a purposive interpretation of section 31 of the Regulations or paragraph 15(e) of the Code. Indeed, a purposive approach cannot be attributive of a power if the text of the provision itself does not grant such power or denies it expressly or impliedly. In other words, a court cannot legiferate under the guise of an interpretation based on a purposive approach.

[29]Subsection 31(3) of the Regulations is ultra vires because it amounts to nothing less than the attribution of a discretionary power by the Board to itself by means of a regulation. This is clearly an illegal delegation of powers according to well established administrative law principles.

[30]As a matter of fact, it is a fundamental principle of administrative law that a body empowered by statute to make regulations cannot use that regulatory power to give itself the discretion to decide issues on a case-by-case basis. This principle flows from the very nature of a regulatory power and the difference which exists at law between a discretionary and a regulatory power. A regulation is by nature normative and of general application while a discretionary power allows the recipient of such power to exercise it in individual cases or in particular situations. The purpose of a regulation is to create a norm and not simply make individual decisions. In their well known Treatise on Administrative Law²², R. Dussault and L. Borgeat refer to regulations as follows:

Essentially, they constitute a norm of general conduct authorized by statute and applying to citizens or to certain categories of citizens . . . . Given their normative nature and their general scope, regulations may be distinguished from individual administrative decisions.

[31]Based on an analysis of the case law, they express the rule against the subdelegation of discretionary powers by regulation in the following terms:²³

For some questions of detail not foreseen in the statute, the regulation-making authority is expected to establish objective and uniform norms of behaviour for all citizens. However, at times, by deciding to draft regulations in discretionary terms, the authority is granted the power to make a particular decision in each case. Thus, for example, a board empowered to make regulations concerning the conditions for obtaining a licence may decide to make a regulation granting it full discretion as to the issuance of each licence sought. There is no doubt as to the illegality of this process, if it is not expressly authorized by Parliament; the exercise of a regulation-making power must involve general norms and not a system of administrative discretion.

[32]The writings of Professor Garant, another expert in administrative law, are to the same effect:²⁴

[translation]

    Regulations cannot confer pure discretion

The implications of this rule are twofold. On one hand, it means that a regulation-making authority cannot, through regulations, grant itself discretion when the legislator contemplated the establishment of norms. Pigeon put it this way:

". . . it must be remembered that a regulation-making authority cannot turn regulation-making power into administrative discretion . . . . Once again, two things can be done with regulation-making power:"1o establish norms;"2o adopt compliance measures."

[33]The normative character of a regulation means that, if a situation contemplated by a regulation arises, the treatment of that situation will be in accordance with what the regulation says and there will be no room for discretion for the authority charged with the application of the regulation. In the present instance, Parliament granted the Board in paragraph 15(e) of the Code the power to establish norms of general application with respect to the time limit applicable to the renewal of an application for certification and, as a consequence, did not intend the Board to decide such time limit on a case-by-case basis.

[34]A close reading of subsections 31(1) and (3) undoubtedly reveals that this regulation does not really create a norm of general application as it should, but rather gives the Board the discretion to decide on a case-by-case basis by waiving the application of the general norm established in subsection 31(1). Section 31 of the Regulations, by any stretch of the legal principles applicable, cannot be said to be a norm. The fact that the Board has fixed a six-month time period in subsection 31(1) becomes of no significance and of no effect when this norm can be set aside at any time at the Board's discretion.

[35]Moreover, it is hard to see how it can be said that the Board has provided direction and guidance in these matters of renewed applications for certification by specifying in subsection 31(1) the six-month rule. Nor is it of any assistance or comfort to say that the Board has, by enacting subsection 31(1), specified a benchmark to follow. This is precisely the point in issue here. The time period established in subsection 31(1) is not, and cannot be seen as, a mere direction or benchmark. It is the actual norm to be followed by everyone. It represents the very exercise of the regulatory power. What subsection 31(3) does, however, is to improperly give to the Board the discretionary power not to follow the norm. It actually defeats and eliminates the norm.

[36]Furthermore, the breath of discretion that the Board gave itself in subsection 31(3) remains entire and unabated. It is no answer for the Board to say that it has so far exercised its discretion in a responsible manner. I have no doubt it has. The issue in respect of the power conferred in subsection 31(3) is not that of a valid exercise of the power, but rather that of its valid existence.

[37]It is clear to me that Parliament intended that the discretion of the Board with respect to applications for certification be limited and statutorily controlled. Such intent is found in subsections 24(2) and (3) of the Code²⁵. I shall come back to these two subsections when I will discuss the applicability of paragraph 16(m) of the Code to the subject-matter. Suffice it to say for the time being that Parliament has either denied the Board under paragraphs 24(2)(c) and (d) any discretion to abridge the time-limit or has expressly granted it such discretion in situations envisaged by paragraph 24(2)(b) and subsection 24(3), i.e., in specific cases where no collective agreement applicable to the unit is in force but a trade union has been certified as the bargaining agent for the unit, and where an application for certification is made during the first six months of a strike or a lock-out.

[38]What subsection 24(2) reveals is an intention by Parliament to control the process by establishing time-limits with respect to the making of applications for certification in order, as my colleagues have pointed out, "to foster industrial peace by minimizing outside causes of disruption in existing collective bargaining relationships". It also reveals its intention to provide the Board, in some limited specific situations, with the discretion to abridge such time-limit. In my view, it reveals no intention to give to the Board an uncontrolled power like the one it gave itself on the renewal of such applications through an illegal exercise of the regulatory power.

Whether paragraph 16(m) of the Code enables the Board to abridge the six-month limitation period

[39]Paragraph 16(m) at the time authorized the Board, "in relation to any proceeding before it", to abridge or enlarge the time for instituting the proceeding:

16. . . .

(m) to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;

Such power has since then been repealed.²⁶

[40]Section 16 is obviously, by its contents and wording, a general provision of broader application than section 24 which deals specifically with one type of proceeding, i.e., an application by a trade union to be certified as the bargaining agent for a unit. Subsection 24(1) clearly states that such application is subject to any regulations made by the Board under paragraph 15(e):

24. (1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit. [My emphasis.]

[41]Paragraph 15(e) empowers the Board to make regulations of general application respecting the period of time after which an application for certification may be renewed pursuant to an earlier refusal.

[42]It is significant that subsection 24(1) makes a specific and express reference to paragraph 15(e) of the Code. Clearly, Parliament intended that the renewal of an application be subject to the specific time-limit established by regulations. It is also instructive in this regard that the regulating power conferred to the Board by paragraph 15(e) is a power to specify the period of time that must lapse before the Board can receive a renewed application for certification. The French version of paragraph 15(e) leaves no doubt that Parliament intended that there be a waiting period:

15. . . .

e) le délai qui doit s'écouler avant qu'il puisse recevoir une nouvelle demande d'accréditation de la part d'un syndicat à qui il a déjà refusé l'accréditation pour la même unité ou une unité essentiellement similaire; [Underlining mine.]

[43]Paragraph 16(m) is in direct conflict with paragraph 15(e) as it empowers the Board to practically eliminate the time period fixed by Regulations and give itself a jurisdiction that it would not otherwise have had prior to the expiry of the limitation period. The exercise by the Board of the powers conferred in paragraph 16(m), in the context of the renewal of an application for certification to be the bargaining agent, runs counter to and defeats the legislative intent clearly expressed in subsection 24(1) of the Code.

[44]In my view, the express reference in subsection 24(1) of the Code to paragraph 15(e) excludes the possible application of paragraph 16(m) and the broad and general powers it confers to the Board. Had Parliament intended such broad powers to apply, it would not have made an express reference in subsection 24(1) to paragraph 15(e) and the specific time period established by regulation pursuant to that paragraph. It is an elementary rule of statutory interpretation that:

. . . whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.²⁷

[45]This basic principle of interpretation was approved and applied by the Supreme Court of Canada with respect to the interpretation of section 121 [R.S.C. 1970, c. L-1 (as am. by S.C. 1972, c. 18, s. 1) now section 21] of the Code. In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn.,²⁸ the Court refused to construe the general provisions of section 121 of the Code so as to give the Board the power to compel the production of documents outside the context of a formal hearing because paragraph 118(a) [as am. by S.C. 1977-78, c. 27, s. 40] (now paragraph 16(a)) specially regulated the granting and exercise of such power. The principle has also been applied in James Richardson & Sons, Ltd. v. Minister of National Revenue et al.²⁹ and in Schwartz v. Canada.³⁰

[46]In the James Richardson & Sons case, the Minister of National Revenue attempted, pursuant to subsection 231(3) of the Income Tax Act [S.C. 1970-71-72, c. 63], to obtain from the appellant some information relating to its clients who traded on the commodities futures market so as to check on their compliance with the Income Tax Act. The Supreme Court of Canada was of the view that the language of subsection 231(3) was unquestionably broad and would cover the kind of information sought by the Minister. However, paragraph 221(1)(d) of the Income Tax Act gave the Governor in Council the power to make regulations "requiring any class of persons to make information returns respecting any class of information required in connection with assessments under this Act". The Court concluded that the Minister could obtain a regulation under that paragraph requiring all traders on the commodities futures market to file returns of their transactions in such market. In the end, the Court refused to generally authorize under subsection 231(3) what could specifically be obtained under the authority of paragraph 221(1)(d ).

[47]In the Schwartz case, the Minister of National Revenue argued that the damages received by Mr. Schwartz in consequence of an unlawful breach of an employment contract were taxable as income from an unenumerated source under the general provision of paragraph 3(a) of the Income Tax Act [S.C. 1970-71-72, c. 63]. The Supreme Court of Canada refused to apply this general provision because the Income Tax Act contained a specific provision with respect to the payment of such damages. As La Forest J. wrote:

. . . accepting the argument made by the Crown would amount to giving precedence to a general provision over the detailed provisions enacted by Parliament to deal with payments such as that received by Mr. Schwartz pursuant to the settlement.

To do otherwise would defeat Parliament's intention by approving an analytical approach inconsistent with basic principles of interpretation.³¹

[48]Because the limitation period applicable to the renewal of an application for certification is specifically dealt with in section 24 and paragraph 15(e) of the Code and subsection 31(1) of the Regulations, the general provision of paragraph 16(m) cannot be resorted to to circumvent the legislative intent expressed in these specific provisions. I am comforted in this view by the fact that acceptance of the respondent's contention that the Board can resort to paragraph 16(m) to abridge the limit periods provided for in section 24 would, for any practical purpose, also defeat the legislative intent expressed in subsections 24(2) and (3) of the Code.

24. . . .

(2) Subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made

(a) where no collective agreement applicable to the unit is in force and no trade union has been certified under this Part as the bargaining agent for the unit, at any time;

(b) where no collective agreement applicable to the unit is in force but a trade union has been certified under this Part as the bargaining agent for the unit, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at any earlier time;

(c) where a collective agreement applicable to the unit is in force and is for a term of not more than three years, only after the commencement of the last three months of its operation; and

(d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only

(i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and

(ii) after the commencement of the last three months of its operation.

(3) An application for certification under subsection (2) in respect of a unit shall not, except with the consent of the Board, be made during the first six months of a strike or lock-out of employees in the unit that is not prohibited by this Part. [Emphasis added.]

Again, in paragraphs 24(2)(b), (c) and (d) for example, Parliament has provided very strict time-limits within which an application for certification either cannot be made at all or, in some cases, can be made only with the consent of the Board. If the Board can abridge these time periods pursuant to paragraph 16(m), notwithstanding that subsection 24(1) states that an application is "subject to this section", the mandatory prescriptions of paragraphs 24(2)(c ) and (d) become meaningless. Moreover, there would have been no need for Parliament to expressly state in paragraph 24(2)(b) and subsection 24(3) that the Board could give its consent to the making of an application at an earlier time if it could always do that under the authority of paragraph 16(m).

[49]There may be valid policy considerations for not having a rigid limitation period and for granting the Board some flexibility in determining, on a case-by-case basis, the appropriate moment when an application pursuant to subsection 24(1) could be renewed. There is no doubt that the Board wants such flexibility. However, our task is not to interpret the provisions to find powers that the Board wants, thinks it has or would like to have. Our duty is to interpret these provisions to find the powers that the Board actually has and Parliament says it has. In my view, subsection 24(1), which refers to paragraph 15(e) of the Code, and section 31 of the Regulations do not give the Board such flexibility. As the Supreme Court of Canada said in the Canadian Pacific Air Lines case³² with respect to the interpretation of the powers conferred to the Board by the then section 121 of the Code [R.S.C. 1970, c. L-1]:

It is a fundamental rule of interpretation that the meaning of general provisions in the Code cannot be developed in such a way so as to give to the Board powers which are broader than those expressly and specially provided for elsewhere.

[50]I believe there is another reason why paragraph 16(m) of the Act had no application in the present instance. The provision stipulates that the Board possesses all these powers herein enumerated, including the power described in paragraph 16(m), "in relation to any proceeding before it". A review of all these powers and their nature confirms that a proceeding must be pending before the Board before it can validly exercise such powers.³³

[51]Yet, in the case at bar, there was no proceeding before the Board. On the one hand, the initial application for certification had been refused and these proceedings were terminated. On the other hand, subsection 31(1) of the Regulations not only barred the beginning of a new proceeding until the limitation period has expired, but also deprived the Board of its jurisdiction to consider such proceeding. Indeed, the power claimed by the Board pursuant to paragraph 16(m) of the Act would have precisely been to authorize a proceeding when none existed in fact and could have existed at law.

[52]For these reasons, I would have allowed the application for judicial review with costs, quashed the decision of the Board issued on April 27, 1998 and rejected the application for certification filed by the respondent on November 7, 1997.

The following are the reasons for judgment rendered in English by

[53]Sexton J.A.: The applicant Dynamex Canada has brought two applications for judicial review that question the ability of the Canada Labour Relations Board (the Board) to abridge the time bar that a bargaining agent must respect before reapplying for certification when their original application has been refused. Subsection 31(1) of the Canada Labour Relations Board Regulations, 1992 (the Regulations) sets a period of six months as the time which must elapse in such circumstances. The Board in the present case abridged that time. Two possible bases were advanced on this application as permitting such abridgment. The first is subsection 31(3) which gives the Board the power to abridge the six-month time bar set in subsection 31(1) of the Regulations. The second is paragraph 16(m) of the Canada Labour Code (the Code) which confers the general power on the Board to abridge or enlarge the time periods in relation to proceedings before it. In my view, Parliament intended to give the Board flexibility in determining the period that must be awaited. In this regard, I have found the Board's decision to abridge the time period in this case was a valid exercise of the authority conferred by Parliament and can be justified under both bases.

Facts

[54]On March 27, 1997, the respondent, the Canadian Union of Postal Workers, filed an application with the Board to be certified as the bargaining agent for a group of employees of the applicant, Dynamex Canada. The respondent also filed an amended application for certification of a much smaller group of employees.

[55]On July 30, 1997 the Board dismissed both the original and amended applications. It found the amended bargaining unit sought was not appropriate for collective bargaining as the unit was a carving out and rejected the original application on the basis that the union had underestimated the number of employees in the bargaining unit. On November 7, 1997 the respondent filed a second application for certification which reflected the fact the bargaining unit sought covered a larger group of employees. The applicant opposed this application on several bases, including the ground that it was untimely. The applicant argued that since the application was for substantially the same bargaining unit as in the previous application, subsection 31(1) of the Regulations was contravened. This provision states that a second application for certification will not be heard before six months have elapsed from the date of rejection of the first application.

[56]On April 27, 1998, the Board issued their decision which concluded that the application was for substantially the same bargaining unit as in the previous application of March 27, 1997. However the Board exercised its discretion under subsection 31(3) of the Regulations and abridged the six-month time bar set in subsection 31(1) so that it could consider the merits of the application. The Board then determined that the requested bargaining unit was appropriate for collective bargaining, and ordered a representation vote be held pursuant to subsection 29(2) of the Code to determine the wishes of the employees included in that unit. The applicant applies for judicial review of the decision dated April 27, 1998 in A-339-98.

[57]After the representation vote, in a decision rendered on May 7, 1998 the Board certified the respondent as the bargaining agent for the employees in question. This decision is the subject of the application for judicial review in A-338-98. The issue raised in this application and the application of A-339-98 is whether the Board's decisions should be quashed on the basis that the Board lacked the jurisdiction to abridge the time bar.

Relevant Legislative Provisions

[58]Paragraph 15(e) of the Code confers the power to specify a time period for reapplication for certification. It states:

15. The Board may make regulations of general application respecting

    . . .

(e) the specification of the period of time after which the Board may receive an application from a trade union for certification as the bargaining agent for a unit where the Board has refused an application from the trade union for certification in respect of the same or substantially the same unit;

[59]In exercising this power, the Board enacted the following provisions in the Regulations:

31. (1) Where the Board has rejected an application for certification by a trade union or a council of trade unions, the Board shall not consider a new application for certification from that trade union or council of trade unions in respect of the same or what the Board considers to be substantially the same bargaining unit until six months have elapsed from the date on which the application was rejected.

    . . .

(3) Notwithstanding subsections (1) and (2), the Board may, on its initiative or at the request of a trade union, a council of trade unions or an employee, abridge the time period specified in subsection (1) or (2).

[60]Also relevant to this application is paragraph 16(m) of the Code which grants the Board the general power to vary time limits. It states:

16. The Board has, in relation to any proceeding before it, the power

    . . .

(m) to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;

Issues

[61]I. Is subsection 31(3) of the Regulations validly enacted under paragraph 15(e) of the Code?

II. Was the Board entitled to abridge the time bar imposed in subsection 31(1) of the Regulations pursuant to paragraph 16(m) of the Code?

Overview

[62]In my view the Board has the authority to abridge the time bar on reapplications for certification. This authority stems from two sources. The first source is subsection 31(3) of the Regulations which expressly grants the authority to abridge the time bar. In my view this subsection is validly enacted under paragraph 15(e) of the Code. Alternatively, if subsection 31(3) is ultra vires, the Board was nevertheless empowered to act as it did pursuant to paragraph 16(m) of the Code. I turn first to the validity of subsection 31(3) of the Regulations.

I.  Is subsection 31(3) of the Regulations validly enacted under paragraph 15(e) of the Code?

[63]At the outset it must be noted that Parliament has reposed in the Board an extremely broad discretion with respect to the time period within which a second application for certification can be considered after a previous application has been rejected. Paragraph 15(e) grants the Board the power to make regulations if it so desires: thus if it wishes, it can refrain from imposing any time bar at all.

[64]Relying on a strict textual construction, the applicant argued that paragraph 15(e) empowers the Board to set the time period through a regulation of "general application" only. Thus, subsection 31(1) which specifies a six-month waiting period is an appropriate exercise of the power conferred under paragraph 15(e ), for it can be generally applied to every case. However subsection 31(3) gives the Board discretion to abridge the time period set in subsection 31(1). It was argued that retaining the discretion to abridge the time bar amounted to a complete redelegation by the Board to itself in a form different than authorized by the Code and therefore subsection 31(3) was ultra vires.

[65]In my view, this narrow interpretation of the provision must be rejected. In order to determine whether subsection 31(3) of the Regulations is ultra vires it is necessary to undertake a purposive analysis of paragraph 15(e) of the Code. Understanding the nature and purpose of the time bars that Parliament has allowed the Board to impose is crucial in the determination of whether subsection 31(3) is intra vires. In the seminal text, R. Sullivan, Driedger on the Construction of Statutes, (3rd ed., Toronto: Butterworths, 1994) purposive analysis is described as a "staple of statutory interpretation" in the Supreme Court of Canada and the following quote from Clarke v. Clarke³⁴ is reproduced to confirm that a purposive approach is the correct one when interpreting a statutory provision:

In interpreting the provisions of the Act the purpose of the legislation must be kept in mind and the Act given a broad and liberal construction which will give effect to that purpose.³⁵

Thus the provision should be read in light of the whole statute and the construction of paragraph 15(e) should take into consideration the purpose and goals of the Code. With this aim in mind, the next section examines the general purpose of the Code.

Purpose of the Code

[66]The aim of the Code is primarily to foster constructive settlement of disputes and free collective bargaining. This is made clear in the preamble to Part I of the Code, which states:

Whereas there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;

    . . .

And Whereas the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all;

Now, Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

[67]The Board is entrusted to administer a highly complicated system of labour relations which contains numerous trade-offs between management and unions. The Board's purpose is to effectively manage labour relations with the goal of maintaining a high level of industrial peace. The Board must be given flexibility to apply the system in a manner that will best enable it to accomplish its task.

[68]Rather than imposing an absolute time bar, the Board created a comprehensive regime in section 31 of the Regulations by establishing a time bar of six months in subsection 31(1) and by granting itself flexibility in subsection 31(3) to abridge that period. The Board purported to exercise the authority conferred by the Code by creating a general rule which included retaining flexibility to abridge.

[69]Paragraph 15(e) of the Code clearly grants the Board authority to create a time bar for reapplications for certification. The question is the extent to which the Board may introduce flexibility when establishing this time bar.

How has the Board exercised its discretion?

[70]In Canada Labour Relations Board: An Annotated Guide³⁶, Graham J. Clarke summarizes the policy factors the Board has taken into account when determining whether to abridge the time bar for applying for certification after a refusal. These factors are:

. . . (1) a second application should not be entertained until a reasonable opportunity has been given to the parties to the collective agreement to bargain collectively its renewal; (2) the six-month bar is not a punitive measure; (3) the bar may not be applied where a union has underestimated the number of employees in the unit; (4) in raid situations, the bar ought not be applied where the initial application would probably have been successful; and (5) the bar should not be imposed unless the applicant uses the same membership evidence in its second application.

[71]The reasons of the Board in the present case also review in some detail the factors which it took into account when considering whether to abridge the time. The Board found:

The time period provided in section 31(1) of the Board's Regulations has no punitive purpose. It is meant to foster industrial peace by minimizing outside causes of disruption in existing collective bargaining relationships. The present case is not one where these risks exist since there is no incumbent bargaining agent and therefore no existing collective bargaining relationship involving the employees for which certification is sought. Unlike the situation that prevailed in Bell Canada (1979), 30 di 104; and [1979] 2 Can LRBR 429 (CLRB no. 191), this is not an application to replace a certified bargaining agent and one that should be rejected because the bargaining agent must be given a reasonable opportunity to bargain collectively with the employer with a view to renewing a collective agreement before another trade union, having seen its earlier application for certification rejected for lack of the requisite support, can take another kick at the can.

In the instant case, the earlier application failed because the Union underestimated the number of employees included in the unit. Nevertheless, following the Board's decision on the original application, CUPW did its homework and went through the trouble of arranging another organizational campaign to secure the requisite employee support to earn the right to a vote. The Board cannot be oblivious of the energy, time and effort spent by the Union in carrying out this process and unjustifiably deny it the opportunity to represent these employees merely due to a technical error. In this regard, we adopt the reasoning of the Ontario Labour Relations Board in Hydro Electric Commission of Hamilton (1958), 58 CLLC 18, 120 and General Freezer, 63 CLLC 16, 294, which is reproduced in Bell Canada, supra:

—In Hydro Electric Commission of Hamilton, 58 CLLC 18, 120, the Ontario Board also indicated that the application of the six-month period was not to be a punitive measure. The Board had the following to say:

`The Board has never looked upon the power conferred upon it by section 67(2)(h) of the Act as being of a punitive nature, as would be the case if the Board were to adopt here the course suggested by counsel for the respondent.'

In General Freezer, 63 CLLC 16, 294, the Ontario Board refused to apply the six-month limitation where a union had filed a new application for certification after under-estimating the number of employees included in the unit, which had the effect of denying the union the right to a vote since it had not filed with its application sufficient evidence of membership. In this situation, the Board stated the following:

`In addition it is not the usual practice of the Board to impose a bar on an unsuccessful applicant who fails to produce sufficient evidence of membership at a hearing to entitle it to a vote or who is dismissed in a pre-hearing representation vote prior to the vote being directed where there is no incumbent bargaining agent. The respondent in the instant case has urged the Board to change its policy. If the Board were to accede to the respondent's request, section 77(2)(i) of the Act would then be applied in a punitive manner contrary to the statement contained in Hydro Electric Commission of Hamilton case referred to above. We are of the opinion that to hold otherwise would be to defeat the purpose of the Act which may be briefly described as follows: to determine the true wishes of the employees in an appropriate bargaining unit for the purpose of gaining recognition of their chosen trade union as bargaining agent and then to promote and preserve a healthy and active bargaining relationship between the bargaining agent and the employer consistent of course with the wishes of the employees . . . . The timeliness of an application for certification should not be dependent entirely upon an applicant's —guesstimate— of the number of employees in a bargaining unit'—.

    (page 107)

In the present case, the Board is also of the opinion that to subject the timeliness of the Union's application for certification to the accuracy of its assessment of the number of employees in the bargaining unit would defeat the purpose of the Code. For these reasons, the Board, exercising its discretion pursuant to 31(3) of the Board's regulations, hereby abridges the six-month time period specified in section 31(1) of the said Regulations and allows CUPW to file its application for certification dated November 7, 1997.³⁷

[72]From the above, it is evident that the time bar has been applied principally for the situation where an application to replace an existing certified bargaining agent has been rejected. It is in this situation that the certified agent must be given an opportunity to bargain with the employer to renew its collective agreement before being disrupted by another union whose previous application for certification was already rejected. Where there is no incumbent union, the rationale for applying the six-month bar is diminished.

A purposive construction of paragraph 15(e)

[73]Clearly the time bar serves an important purpose in some situations. However, in other contexts its application is inappropriate and may unnecessarily lead to a delay in certification, which may damage labour relations. I am satisfied that Parliament could not have intended to limit the Board's regulation- making power to enact only a time bar that would apply in every situation. Such a rigid constraint might well frustrate the Board from maintaining the central purpose of the Code of achieving smooth labour relations. In my view, Parliament intended the Board to draw on its expertise and experience to determine in which circumstances abridging the time bar would better maintain labour relations.

[74]The applicant's position that subsection 31(3) is ultra vires depends on the construction of paragraph 15(e) as conferring only the power to establish a time bar that is mandatory in all circumstances. In my view, when construed in light of the statute as a whole, it becomes clear that Parliament could not have intended to impose such a rigid restriction on the Board when establishing time limits for its own proceedings. A purposive approach, which considers the aims of the time bar and the general goals of the Code leads to the conclusion that the flexible scheme enacted by the Board was well within the statutory grant of power.

[75]The view that Parliament intended to grant the Board flexibility in determining the time bar is consistent with the accepted position that the Board should control its own procedure. As an expert body, the Board has the insight and expertise to determine the best procedure to accomplish its goals. Parliament must be taken to have recognized the benefits of allowing the Board to tailor its procedures to best meet its needs. In this vein, it is doubtful Parliament intended to fix stringent parameters on the manner in which the Board must deal with the time bar for reapplication for certification.

[76]When read in light of the other provisions of the Code, it is evident that paragraph 15(e) could not have the strict meaning urged by the applicant. In particular paragraph 16(m) of the Code grants the Board the authority, "in relation to any proceeding before it", to "abridge or enlarge the time for instituting the proceeding or for doing any act". It is trite law that where possible, statutory provisions should be given a construction that are consistent with each other. The effect of the applicant's construction is that paragraph 15(e ) would authorize a regulation establishing a fixed time bar that would be insulated from the power to amend time limits given in another statutory provision. In my view, the applicant's construction of paragraph 15(e), which allows for the creation of a regulation that would supersede the power granted in paragraph 16(m), cannot be reflective of Parliament's intent.

[77]The applicant's construction of paragraph 15(e) is that the Board can only enact a regulation which imposes a fixed time bar. Once this is done, the applicant says that there is no power in the Board to abridge this time. This has the effect of removing from the Board the power explicitly given to it by virtue of paragraph 16(m). In other words the Board, by its own Act, has taken from itself the power which the legislature specifically gave it. This is the sort of action which the Supreme Court of Canada held is prohibited in the case of Upper Lakes Shipping Ltd. v. Sheehan et al.³⁸ In Sheehan the Board purported to enlarge a time limit prescribed by the statute. Laskin C.J. found:

. . . I am of the opinion that s. 118(m) [now 16(m)] is not applicable for another and more fundamental reason, namely, that it does not empower the Board to alter a substantive provision of the statute prescribing a time limit for filing complaints.³⁹

Thus in Sheehan, the Supreme Court of Canada established that the Board could not "alter a substantive provision" of its empowering statute.

[78]If the applicant is correct in saying that once the Board enacts a specific time limit, it is then prohibited from abridging that time, it has effectively altered paragraph 16(m) of the statute which gives the Board that power. This is more support for rejecting the applicant's interpretation of paragraph 15(e).

[79]While the foregoing analysis is sufficient to dispose of the applicant's argument, one last point need be addressed. The applicant has attempted to bolster its position that subsection 31(3) is ultra vires by reference to several cases. In view of the conclusion already reached, these cases do not assist the applicant. However, even absent this conclusion I do not believe they are helpful because each of these cases can be distinguished from the instant case. These cases do not concern labour relations and none of them involve the highly specialized Canada Labour Relations Board. I turn now to an examination of these cases.

1.  Attorney General of Canada v. Brent⁴⁰

[80]The issue in Brent was whether the Governor in Council properly subdelegated powers given it under the Immigration Act⁴¹ to special inquiry officers. The relevant provision read:

61. The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, without restricting the generality of the foregoing, may make regulations respecting

    . . .

(g)    the prohibiting or limiting of admission of persons by reason of

(i)        nationality, citizenship, ethnic group, occupation, class or geographical area of origin,

(ii)        peculiar customs, habits, modes of life or methods of holding property,

(iii)    unsuitability having regard to the climatic, economic, social, industrial, educational, labour, health or other conditions or requirements existing, temporarily or otherwise, in Canada or in the area or country from or through which such persons come to Canada, or

(iv)        probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their admission.

[81]Subsection 20(4) of the Order in Council [Immigration Regulations, P.C. 1954-1351] passed pursuant to this provision subdelegated the power granted to the Governor in Council in the Act to a special inquiry officer. The subdelegation read:

20. . . .

(4) Subject to the provisions of the Act and to these regulations, the admission to Canada of any person is prohibited where in the opinion of a Special Inquiry Officer such person should not be admitted by reason of

(a)    peculiar customs, habits, modes of life or methods of holding property . . . .

(b)    his unsuitability having regard to the economic, social, industrial, educational, labour, health or other conditions or requirements existing, temporarily or otherwise, in Canada or in the area or country from or through which such person comes to Canada, or

(c)    his probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after his admission.

[82]It is evident that the paragraphs 20(4)(a) to (c) of the Regulations merely parroted subparagraphs 61(g)(ii) to (iv) of the granting legislation. The Supreme Court found that this subdelegation was unlawful as Parliament intended that it would be the Governor in Council who would enact regulations establishing specific criteria for limiting the admission of persons into Canada. The power to grant admission could not be left to the open discretion of the opinion of special inquiry officers. Since the Governor in Council did not establish specific standards but merely passed on the general factors to be considered to the special inquiry officers, decisions would be made on a standard that was "everchanging according to the individual notions of Immigration Officers and Special Inquiry Officers".

[83]In my opinion this case can be distinguished as it involved the subdelegation of a power granted in a statute where the subdelegation merely parroted the terms of the authorizing statute. In our case, the Board has exercised the authority to establish a time bar by setting a six-month period while retaining flexibility. Thus our case can be distinguished from Brent.

2.  Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario et al.⁴²

[84]Brant Dairy involved the question of whether the Ontario Milk Marketing Board could redelegate to itself powers conferred upon it by the Milk Commission under regulations enacted under The Milk Act, 1965.⁴³

[85]Subsection 8(6) of the Act allowed the Commission to subdelegate its regulation-making powers to a marketing board. It read:

8. . . .

(6) The Commission may delegate to a marketing board such of its powers under subsection 1 as it deems necessary, and may at any time terminate any such delegation.

[86]Under subsection 8(6) the Commission issued Regulation 294/65. Section 6 of this Regulation delegated to the Marketing Board a substantial part of the Commission's powers, including the power given to the Commission under numbered paragraph 11 of subsection 8(1) which read:

8."(1) The Commission may make regulations with respect to regulated products generally or to any regulated product, and, without limiting the generality of the foregoing, may make regulations,

    . . .

11. providing for,

i.        the marketing of a regulated product on a quota basis,

ii.    the fixing and allotting to persons of quotas for the marketing of a regulated product on such basis as the Commission deems proper,

[87]After the Commission subdelegated this broad power to make regulations to the Marketing Board (in Regulation 294/65), the Marketing Board enacted O. Reg. 52/68, exercising its delegated power. However it did not establish any standards as instructed by the Regulation but merely repeated the terms of the authorizing statute. An example of this identical conferral of discretion is seen in subsection 4(2) of Regulation 52/68 which parroted subparagraph 11(ii) of subsection 8(1) of The Milk Act, 1965 (reproduced above). It read:

4. . . .

(2) The marketing board may fix and allot to persons quotas for the marketing of milk on such basis as the marketing board deems proper.

[88]The Supreme Court of Canada concluded that the Marketing Board had exercised the power to establish a quota system and allot quotas in the very terms in which it was given. Thus, the Marketing Board had not established a system as it was empowered to do, but had simply repeated the formula given in the statute, specifying no standards and leaving everything in its discretion. Laskin J. (as he then was) found:

A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from . . . Brent.⁴⁴

[89]Applying this to the facts here, the question becomes whether the Board has "simply repeated the power" given it in the statute. As already noted, the Board exercised the power conferred in paragraph 15(e ) of the Code by setting a six-month time bar as a general rule while retaining the flexibility to adjust the time bar where necessary. By specifying a general rule which is to be normally applied, the Board has done more than simply repeat the power conferred by the statute.

[90]Subsection 31(3) should be viewed as allowing the Board to vary a time period from the normal six-month time in circumstances where failure to do so would result in the purpose of the Code being frustrated. The Regulations are enacted in a manner that establishes a six-month period as the normal waiting time. This situation can be distinguished from the situation which would occur if the Board enacted a regulation giving itself the power to establish the time bar administratively on its own whim on a case-by-case basis.

[91]The following quote from Brant Dairy supports the view that by specifying a reference point of six months, the Board has properly exercised its discretion. Laskin J. found:

The Board was required to legislate by regulation. Instead it has purported to give itself random power to administer as it sees fit without any reference point in standards fixed by regulation.⁴⁵

[92]Here the Board has fixed by regulation a reference point of six months. Further, Laskin J. found:

What is objectionable, in my view of the law, is not the breadth of the delegation or the subdelegation but the failure . . . to provide even a minimum of direction and specification . . . .⁴⁶

[93]Again our case can be distinguished as the Board provided direction, by specifying the six-month rule. This is not a case where the Board has left itself untrammelled discretion without specifying a benchmark to follow.

[94]I agree with the respondent who distinguishes Brant Dairy on the basis that it involved a regulation which merely parroted the general criteria specified in the authorizing statute.

3.  Canadian Institute of Public Real Estate Companies et al. v. Corporation of the City of Toronto⁴⁷

[95]In Canadian Institute of Public Real Estate Companies, the Supreme Court considered the validity of a City of Toronto by-law which set out conditions for the development of land that were the same as those set out in the enabling legislation, subsection 35a(2) of The Planning Act.⁴⁸

[96]By-law 419-74 set out the conditions for land development in the following terms [at pages 4-5]:

(3)(i) As a condition of development or redevelopment of any land or buildings within any area hereinafter referred to, the Council requires the provision and maintenance of the following facilities and matters, namely:

 1. Widening of highways that abut on the land that is being developed or redeveloped.

 2. Subject to The Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings including the number, location and size of such facilities and the direction of traffic thereon.

 3. Off-street vehicular parking and loading areas and access driveways including the surfacing of such areas and driveways.

 4. Walkways and all other means of pedestrian access.

 5. Removal of snow from access ramps, driveways, parking areas and walkways.

 6. Grading or change in elevation or contour of the land and the disposal of storm, surface and waste water from the land and from any building or structures thereon.

 7. Conveyance to the municipality, without cost, of easements required for the construction, maintenance or improvement of any existing or newly required watercourses, ditches, land drainage works and sanitary sewerage facilities on the land.

 8. Floodlighting of the land or of any buildings or structures thereon.

 9. Walls, fences, hedges, trees, shrubs, or other suitable groundcover to provide adequate landscaping of the land or protection of adjoining lands.

10. Vaults, central storage and collection areas and other facilities and enclosures as may be required for the storage of garbage and other waste material.

11. Plans showing the location of all buildings and structures to be erected on the land and the location of the other facilities required by the by-law.

12. Perspective drawings and plans showing building elevations and cross sections of industrial and commercial buildings and residential buildings containing twenty-five or more dwelling units.

[97]This by-law was a verbatim repetition of the criteria set out in subsection 35a(2) of The Planning Act, which is set out below:

35a. . . .

(2) Where there is an official plan in effect in a municipality, the council of the municipality in a by-law passed under section 35 may, as a condition of development or redevelopment of land or buildings in the municipality or in any defined area or areas thereof, prohibit or require the provision, maintenance and use of the following facilities and matters or any of them and may regulate the maintenance and use of such facilities and matters:

1.    Widening of highways that abut on the land that is being developed or redeveloped.

2.    Subject to The Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings including the number, location and size of such facilities and the direction of traffic thereon.

3.    Off-street vehicular parking and loading areas and access driveways including the surfacing of such areas and driveways.

4.    Walkways and all other means of pedestrian access.

5.    Removal of snow from access ramps, driveways, parking areas and walkways.

6.    Grading or change in elevation or contour of the land and the disposal of storm, surface and waste water from the land and from any buildings or structures thereon.

7.    Conveyance to the municipality, without cost, of easements required for the construction, maintenance or improvement of any existing or newly required watercourses, ditches, land drainage works and sanitary sewerage facilities on the land.

8.    Floodlighting of the land or of any buildings or structures thereon.

9.    Walls, fences, hedges, trees, shrubs or other suitable groundcover to provide adequate landscaping of the land or protection to adjoining lands.

10.    Vaults, central storage and collection areas and other facilities and enclosures as may be required for the storage of garbage and other waste material.

11.    Plans showing the location of all buildings and structures to be erected on the land and the location of the other facilities required by the by-law.

12.    Perspective drawings and plans showing building elevators and cross sections of industrial and commercial buildings and residential buildings containing twenty-five or more dwelling units.

[98]Since the by-law merely repeated the enabling legislation, the Court found that the by-law was ultra vires for the same reasons enunciated in Brant Dairy. The Court could not uphold the City's action as it involved the "mere simple repetition of the power and not the exercise of the power by the enactment of a by-law defining the desired regulations". Canadian Institute of Public Real Estate Companies addressed another situation where the enabling legislation permitted the enactment of delegated legislation and the subordinate legislating body purported to exercise the delegated power in the very terms it was given. As previously discussed, our case does not involve the simple parroting of the authorizing statute and thus it is clearly distinguishable.

4.  Air Canada v. City of Dorval⁴⁹

[99]In Air Canada, the Supreme Court considered the issue of whether the City of Dorval, which had the authority to set a tax rate by by-law, acted within its authority when it adopted a by-law that gave City Council the right to fix the tax rate by resolution. The relevant provision (section 526 of the Cities and Towns Act⁵⁰) read:

526. The council may impose by by-law and collect certain annual dues or taxes on all or some trades, manufactures, financial or commercial occupations, arts, professions, callings or means of earning a profit or livelihood, carried on or followed in the city. Such dues or taxes may consist of a fixed amount or be proportionate to the annual rental value as assessed on the premises occupied for such purposes; such dues or taxes may be imposed under both forms at the same time, and may be different or higher when payable by persons who do not reside in the city or who have resided therein for less than twelve months; however, in no such case shall the sum fixed exceed two hundred dollars and the sum proportionate to the annual rental value, ten per cent of such value. [Emphasis added.]

[100]By-law 577 was enacted pursuant to this section. Section 2 read [at page 864]:

An annual tax is hereby imposed on all business carried on in the city, except those specifically referred to in Sections 3, 4 and 5 of this by-law, and such tax is hereby levied on every person carrying on any such business at a rate, to be fixed annually by resolution of the City Council, but not to exceed ten per cent (10%) of the annual rental value as assessed on the premises occupied for such purposes, provided, however, that such tax shall not be less than twenty-five dollars ($25.00) per annum for each of the premises occupied for any such purposes in the city. [Emphasis added.]

[101]The respondent conceded that it was contrary to section 526 of the Cities and Towns Act not to fix the annual rate of tax by by-law but to do it by way of resolution. The issue was the effect of this irregularity. The respondent argued that it was only a formal defect and since the by-law had not been quashed within three months, the applicant had no recourse. In contrast, the applicant argued that by-law 577 was subject to absolute nullity since it did not set the tax rate but left it to resolution.

[102]The Supreme Court found that City Council had exceeded its jurisdiction by delegating to itself the power to set the tax rate by resolution when it had received only the power to do it by by-law. This was more than a formal defect and therefore the appellant had a remedy under article 33 of the Code of Civil Procedure [R.S.Q. 1977, c. C-25].

[103]In reaching its decision, the Court compared this case to Brant Dairy, supra and Canadian Institute of Public Real Estate Companies, supra. It found:

In the case at bar the Council of the City of Dorval did not simply reproduce the provisions of s. 526 of the Cities and Towns Act in By-law 577. It enacted provisions in accordance with the Act by making certain of the choices offered to it. However, it did not exercise its power respecting the rate. To use the language of Laskin J. in Brant Dairy Co., the Council, in which the power to set a rate by by- law was vested, redelegated to itself the power to set it by way of resolution. The Council did not have the power to thus make a redelegation to itself.⁵¹

[104]In the instant case it has been argued that the Board redelegated itself the power to determine the time bar. However in my view, all the Board has done is specify a rule as instructed by paragraph 15(e) and made an exception to it to retain some flexibility in order to promote the purposes of the Code. In my view this does not contravene the rule established in Brant Dairy and applied in Air Canada.

[105]Air Canada can be distinguished in that the City did not exercise the authority conferred on it to set the tax rate at all. The City merely repeated the statute by establishing a maximum tax rate of 10%. The fact that in the instant case, the Board exercised the authority conferred on it by setting a six-month time bar as a general rule, distinguishes it from the situation in Air Canada where the City conferred complete discretion to itself without establishing any new guidelines for the exercise of its power. The specification of a general rule in our case represents the difference between a valid and invalid exercise of the power conferred.

5.  City of Verdun v. Sun Oil Co.⁵²

[106]The issue in this case concerned the City of Verdun's redelegation of its power to regulate the location of industrial establishments by by-law. City Council adopted a by-law which required applicants to apply to a building inspector. The by-law specified that a positive recommendation of the building inspector could be affirmed or denied by City Council at its discretion. Thus the issue was whether the City properly acted when it ultimately left itself the power to make discretionary decisions.

[107]Section 76 of by-law 128 was the relevant section. It read [at pages 225-226]:

(a)    Any person wishing to erect or use a building or any premises or to occupy a lot of land for. . . gasoline stations . . . shall make an application in writing to the City to do so.

    . . .

(b)    Any person who wishes to obtain such permission shall make an application to that effect to the Building Inspector who shall transmit a copy of such application to the City Clerk. . . .

(c)    Upon the receipt of any such application the Building Inspector shall inspect the lot of land, building or premises, or examine the plan of the building or premises proposed to be used for any of the purposes set forth in Section 76 of this By-Law and, if satisfied that such building or lot of land meets the requirements of this By-Law and that the permission applied for may be granted without in any way endangering life or property, he shall transmit a certificate to this effect to the City Council, which may, at its discretion, grant or deny the permission applied for.

(d)    Whenever any such application is made to the Building Inspector, the applicant shall deposit at the City Treasurer's Office a sum of ten dollars ($10) to cover the cost of advertisements and other expenses incurred by the City in connection with such application. [Underlining added.]

[108]The issue was whether section 426 of the Cities and Towns Act⁵³ conferred the authority on the City to enact section 76. It read:

426. The Council may make by-laws:

    . . .

1. To regulate the height of all structures and the materials to be used therein; to prohibit any work not of the prescribed strength and provide for its demolition; to prescribe salubrious conditions and the depth of cellars and basements; to regulate the location within the municipality of industrial and commercial establishments and other buildings intended for special purposes; to divide the municipality into districts or zones of such number, shape and area as may appear suited for the purpose of such regulation and, with respect to each of such districts or zones, to prescribe the architecture, dimensions, symmetry, alignment and use of the structures to be erected, the area of lots, the proportion which may be occupied by and the distance to be left between structures; to compel proprietors to submit the plans of proposed buildings to a designated officer and to obtain a certificate of approval; to prevent or suspend the erection of structures not conforming to such by-laws and to order the demolition, if necessary, of any structure erected contrary to such by-laws, after their coming into force.

[109]The Court found that section 426 was not sufficient authority to support the by-law. Fauteux J., writing for an unanimous Court, found:

. . . the city did nothing in effect but to leave ultimately to the exclusive discretion of the members of the Council of the City . . . what it was authorized by the provincial legislature, under section 426, to actually regulate by by-law. Thus, section 76 effectively transforms an authority to regulate by legislation into a mere administrative and discretionary power to cancel by resolution a right which, untrammelled in the absence of any by-law, could only, in a proper one, be regulated. This is not what section 426 authorizes.⁵⁴

[110]This case is similar to Air Canada as it stands for the principle that a body cannot redelegate to itself a power conferred on it by Parliament in a form different than granted. It also stands for the principle that a redelegation of authority resulting in untrammelled discretion will be declared ultra vires.

[111]Our case can be distinguished from Verdun. Verdun involves the transformation of the power to regulate by by-law to a discretionary power to veto a fully considered recommendation of a building inspector. The discretionary power to veto was clearly not granted in the authorizing statute. In contrast, in our case, the statute authorized the Board to specify a time bar for re-application for certification. As I have already pointed out, a purposeful reading of paragraph 15(e) authorizes the Board to retain flexibility in the manner it chose. Verdun can be distinguished on the basis that on any reading of the conferring provision, the power to a discretionary veto was not conferred on City Council.

[112]In addition, in Verdun, paragraph 2 of section 426 of the conferring statute expressly dictated that a by-law made under paragraph 1 may not be amended or repealed except by another by-law. This provision is another indication that in Verdun, the delegated right to regulate is to be maintained at the legislative level and not brought down to administrative discretion; in the present case, there is no such legislative provision.

6.  Cdn. Pacific Ltd. v. Canada (Cdn. Transport Comm.)⁵⁵

[113]In Cdn. Pacific, subsection 328(1) of the Railway Act⁵⁶ which is set out below, established that the Canadian Transport Commission was to treat the Canadian National Railway Company and the Canadian Pacific Railway Company in the same manner:

328. (1) The Commission shall prescribe for the Canadian National Railway Company and the Canadian Pacific Railway Company a uniform classification and system of accounts and returns of their assets, liabilities, revenues and working expenditures that relate to railway operations.

[114]The appellant argued that Order No. R-38529 of the Railway Transport Committee, which is a committee of the Canadian Transport Commission, was ultra vires since it contained a prescription that applied only to the expenses of the Canadian Pacific Railway Company. The majority of this Court agreed with the appellant, and found:

The subsection does not confer on the Commission a discretion to be exercised case by case. The Commission, therefore, under the subsection, does not have the power to prescribe rules of accounting applicable only to one of the two main Canadian railway companies; it does not have the power, either, to prescribe how one particular expense made by a railway company shall be classified . . . .⁵⁷

[115]In view of subsection 328(1), it is not surprising that this Court found that the Commission could not create rules that would only impact one of the two companies. In my view the equal application of the law to Canada's two main railway companies in Cdn. Pacific is an entirely different situation than the instant case, which involves consideration of the extent to which flexibility may be maintained in establishing a time bar in the labour context. Thus, Cdn. Pacific is easily distinguishable on the facts.

Conclusion on cases

[116]The issue at the heart of the present case is whether the decision of the Board to retain flexibility in setting the time bar in question in subsection 31(3) is an improper redelegation of the power given to it in paragraph 15(e) of the Code. I believe the present case can be distinguished from those relied upon by the applicant. The present case does not involve the redelegation of a power to legislate in one form into the power to legislate in another form nor does it involve an improper subdelegation of power where the responsibility and obligation to exercise a power set out in a statute has been transferred inappropriately to another body.

[117]In view of the fact that the Board established a general rule to use as a guideline, I believe the present case can be distinguished from the cases relied on by the applicant in which the subdelegate transforms a legislative power into an administrative one that is unchecked by regulation. Here the Board exercised the authority given it by establishing a general rule. The fact that it retained flexibility is consistent with the statutory scheme created by Parliament. Finally, in the instant case, subsection 31(3) of the Regulations is specifically supported by paragraph 16(m) which gives the Board the general power to vary time limits. This type of statutory support for the discretionary power is absent from the cases raised by the applicant.

Conclusion on validity of subsection 31(3)

[118]In the present case, the initial application failed because the union underestimated the number of employees included in the unit. A holding that subsection 31(3) is ultra vires would signify that Parliament contemplated that where there is no certified bargaining agent and no valid reason for not allowing one, the Board should not have the power to abridge the time bar it has established. In my view, this would be applying section 31 in a punitive manner that is inconsistent with the purposes of the Code.

[119]I am satisfied that Parliament envisioned that the Board may require flexibility to abridge the time bar in situations like in the instant case. Without subsection 31(3) the Board would be required to enforce the six-month time bar in situations where it has no purpose. Parliament must have been taken to have known that requiring the imposition of a fixed time bar to every situation involving a reapplication for certification was unnecessary and would serve as an impediment rather than a stepping stone to improved labour relations.

[120]To accept the applicant's view is to accept a strict literal construction of paragraph 15(e) that is inappropriate in the context of the Code. On a purposive construction it is clear that paragraph 15(e) confers a broader authority on the Board than simply the power to establish an absolute time bar for every case. Thus subsection 31(3) of the Regulations is intra vires the Board and validly enacted pursuant to the Board's power under paragraph 15(e) of the Code.

II.   Was the Board entitled to abridge the time bar imposed in subsection 31(1) of the Regulations pursuant to paragraph 16(m) of the Code?

[121]The alternative ground advanced for upholding the Board's decision to abridge the time bar is that it acted pursuant to paragraph 16(m) of the Code. This provision specifically allows the Board "in relation to any proceeding before it" to "abridge . . . the time for instituting the proceeding". In my view that is exactly what the Board has done in this case.

[122]Clearly the legislature intended the Board to have flexibility in dealing with time periods in matters before it, including in the certification process. The imposition of strict and unalterable time periods would frustrate one of the obvious purposes of the Code which is to foster industrial peace through effective labour relations. The reasons of the Board clearly demonstrate that this was the goal it sought to achieve. The fact that it chose to rely on subsection 31(3) of the Regulations rather than paragraph 16(m) of the Code is of no moment. On this latter point see British Columbia (Milk Board) v. Grisnich⁵⁸ where the Supreme Court found that the question to be considered is whether the tribunal acted pursuant to its jurisdiction rather than whether it correctly identified the source of its authority when doing so.

[123]Counsel for the applicant relies on Sheehan, supra, to support its argument that paragraph 16(m) cannot be used to circumvent the specific power imposed by paragraph 15(e) to specify a time period. In particular, he points to the following passage:

. . . I am of the opinion that s. 118(m) [now 16(m)] is not applicable for another and more fundamental reason, namely that it does not empower the Board to alter a substantive provision of the statute prescribing a time limit for filing complaints.

Section 118(m) is as follows:

118. The Board has, in relation to any proceeding before it, power

    . . .

(m) to abridge or enlarge the time for instituting the proceedings or for doing any act, filing any document or presenting any evidence in connection with the proceeding.

I read this provision as empowering the Board to abridge or enlarge the time for taking steps in a proceeding which is properly before it, as, for example, a certification proceeding. If, however, the issue is whether a proceeding is timely under the Board's governing statute, that is, whether the Board can lawfully entertain it at all in the light of s. 187(2) [now 97(2)], I do not regard its powers under s. 118(m) as entitling it to give latitude to a complainant who is out of time under the statute.⁵⁹

[124]In my view, this passage does not aid the applicant. I agree with the respondent that Sheehan stands only for the principle that paragraph 16(m) does not empower the Board to vary time limits set in the statute itself. However the statute in the present case sets no specific time bar. Indeed that is left to the Board. Since the issue here involves a time period set by regulation, Sheehan does not apply to negate the power conferred in paragraph 16(m) of the Code.

[125]It was argued by the applicant that in various parts of section 24 of the Code, power is given to the Board to abridge certain time periods and that if the respondent's argument that paragraph 16(m) gave a broad power to the Board to abridge time limits is correct, then these powers to abridge contained in section 24 would be redundant. This argument ignores the finding in Sheehan that the predecessor of paragraph 16(m) did not permit the Board to abridge time limits specified in the statute. Parliament clearly wished to give the Board this power. It must be taken to have known that paragraph 16(m) would not accomplish this purpose. Hence it was necessary to specifically give to the Board the power to abridge time periods within section 24 itself. Indeed the powers to abridge times contained in section 24 confirm that Parliament did not intend to confine the Board to a strait-jacket and a slave to pre-ordained time strictures.

[126]The specification that the Board may abridge the time limits set in section 24 is not redundant and therefore the power to vary time periods in section 24 is not a basis for finding that paragraph 16(m) does not confer the power to amend time periods set by regulation. Moreover, Parliament has indicated in section 24 that there are no set time requirements that are suitable for all certification proceedings. Depending on the circumstances, different time constraints are imposed and power to amend is given in certain situations. In my view, given this fact, it would be inconsistent to suggest that for reapplications for certification, Parliament intended that there would only be one strict time bar.

[127]The applicant has also argued paragraph 16(m) does not apply since this matter was not "in relation to any proceeding before it". This argument must be rejected as the application for certification was before the Board pursuant to section 24. The Board was obliged to deal with the application which had been filed before it. The Board could then decide to refuse the application based on subsection 31(1) of the Regulations or allow it to proceed by exercising its discretion to abridge the time bar. Quite simply, the Board was seized with jurisdiction to consider whether the application was submitted in accordance with the statutory scheme.

Conclusion

[128]In light of the foregoing, both applications for judicial review should be dismissed. Costs should be awarded to the respondent.

¹ SOR/91-622, November 6, 1991.

² R.S.C., 1985, c. L-2.

³ Applicant's Record (A-339-98), at p. 29.

⁴ Id., at p. 30.

⁵ Id., at p. 31.

⁶ [1979] 2 Can LRBR 429.

⁷ Canada Labour Relations Board Regulations, SOR/73-205, April 10, 1973.

⁸ [1988] 2 S.C.R. 1048.

⁹ Id., at pp. 1088-1089.

¹⁰ ;Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, per Iacobucci J., at p. 179.

¹¹ ;Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 725, per L'Heureux-Dubé J., dissenting, at p. 757.

¹² ;Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, per Dickson J. [as he then was], at p. 233.

¹³ [1996] 2 S.C.R. 432, at pp. 445-447.

¹⁴ Supra, note 10, at pp. 179-180.

¹⁵ Supra, note 13, at p. 454.

¹⁶ [1984] 2 S.C.R. 412, at pp. 420-421.

¹⁷ See e.g., Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; Canadian Pacific Air Lines, supra, note 11.

¹⁸ Shorter Oxford English Dictionary, 3rd ed., vol. II (Oxford: Clarendon Press, 1973), at p. 2067.

¹⁹ Black's Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979), at p. 1255.

²⁰ In Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39, Dickson J. [as he then was] described these words as "of the widest possible scope".

²¹ Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998), at p. 1228, defines the word "respecting" as: "with reference or regard to: concerning."

²² Administrative Law: A Treatise, vol. 1, 2nd ed., Toronto: Carswell, 1985, at p. 15.

²³ Id., at pp. 416-417.

²⁴ Garant, P., Droit administratif, vol. 1, 4th ed., Cowansville, Éditions Yvon Blais, 1996, at p. 441, citing L.-P. Pigeon, Rédaction et interprétation des lois, Québec: Éditeur officiel, 1978, at p. 33.

²⁵ See infra the text of these subsections reproduced.

²⁶ An Act to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, S.C. 1998, c. 26, s. 5(4). The provision now authorizes the Board to abridge or enlarge the time for doing any act, filing any document or presenting any evidence in connection with the proceeding.

²⁷ Edgar, S. G. G. Craies on Statute Law, 7th ed., London: Sweet & Maxwell, 1971, at p. 222. See also Danjou v. Marquis (1879), 3 S.C.R. 251, at p. 267.

²⁸ [1993] 3 S.C.R. 724.

²⁹ [1984] 1 S.C.R. 614.

³⁰ [1996] 1 S.C.R. 254.

³¹ Id., at pp. 293-294.

³² [1993] 3 S.C.R. 724, at p. 741.

³³ Ibid.

³⁴ [1990] 2 S.C.R. 795, at p. 807.

³⁵ Sullivan, at p. 38.

³⁶ Aurora (Ont.): Canada Law Book, 1998, at p. R/21.

³⁷ See Board's decision, at pp. 30-31.

³⁸ [1979] 1 S.C.R. 902.

³⁹ Id., at pp. 914-915.

⁴⁰ [1956] S.C.R. 318.

⁴¹ R.S.C. 1952, c. 325.

⁴² [1973] S.C.R. 131.

⁴³ S.O. 1965, c. 72.

⁴⁴ Brant Dairy, supra, note 42, at pp. 146-147.

⁴⁵ Id., at p. 147.

⁴⁶ Id., at pp. 150-151.

⁴⁷ [1979] 2 S.C.R. 2.

⁴⁸ R.S.O. 1970, c. 349 (as enacted by S.O. 1973, c. 168, s. 10).

⁴⁹ [1985] 1 S.C.R. 861.

⁵⁰ R.S.Q. 1941, c. 233 [as am. by S.Q. 1956-57, c. 91, s. 4].

⁵¹ Air Canada, supra, note 49, at p. 871.

⁵² [1952] 1 S.C.R. 222.

⁵³ R.S.Q. 1941, c. 233.

⁵⁴ Verdun, supra, note 52, at p. 229.

⁵⁵ (1988), 31 Admin. L.R. 138 (F.C.A.).

⁵⁶ R.S.C. 1970, c. R-2.

⁵⁷ Cdn. Pacific, supra, note 55, at p. 147.

⁵⁸ [1995] 2 S.C.R. 895.

⁵⁹ Sheehan, supra, note 38, at pp. 914-915.