British Columbia Packers Limited, Nelson Bros.
Fisheries Ltd., The Canadian Fishing Company
Limited, Queen Charlotte Fisheries Limited,
Tofino Fisheries Ltd., Seafood Products Limited,
J. S. McMillan Fisheries Ltd., Norpac Fisheries
Ltd., The Cassiar Packing Co. Ltd., Babcock
Fisheries Ltd., Francis Millerd & Co. Ltd., Ocean
Fisheries Ltd. (Applicants)
v.
Canada Labour Relations Board and British
Columbia Provincial Council United Fishermen
and Allied Workers' Union (Respondents)
Court of Appeal, Jackett C.J., Thurlow J. and
Sheppard D.J.—Vancouver, December 6 and 7,
1973.
Judicial review—Application for directions—Canada
Labour Relations Board determination regarding its jurisdic-
tion—Whether a "decision'.—Federal Court Act, s. 28(1)—
Canada Labour Code, R.S.C. 1970, c. L-1, s. 118(p).
A hearing was held by the Canada Labour Relations
Board on November 12, 1973 to hear submissions regarding
the Board's jurisdiction to entertain a Union's applications
for certification. The Board recessed after hearing argument
by counsel for the companies to adjourn the hearing pending
determination of an application for prohibition which was
pending in the Trial Division of this Court. On reconvening,
the Board announced it had jurisdiction to entertain the
certification application. Both parties joined and presented
an application to this Court for review under section 28(1)
of the Federal Court Act as to the Board's jurisdiction.
Held, the ruling made or position taken by the Board as to
its jurisdiction is not a "decision" within the meaning of
section 28 of the Federal Court Act and is not reviewable by
this Court under that section. It is not within the compe
tence of the Board to decide the limits of its own jurisdic
tion so as to bind anyone. What the Board can decide is
whether or not to certify a union and when it does so its
decision will be reviewable under section 28.
Attorney General of Canada v. Cylien [1973] F.C. 1166,
referred to.
APPLICATION for judicial review.
COUNSEL:
G. S. Levey and V. Glasner for applicants.
N. D. Mullins, Q.C. for respondents.
SOLICITORS:
Levey, Samuels and Glasner, Vancouver,
for applicants.
Deputy Attorney General of Canada for
respondents.
The judgment of the Court was delivered by
THURLOW J. (orally)—In this matter on the
hearing of an application for directions for a
proceeding commenced under section 28 of the
Federal Court Act the Court postponed the
application and made an order that the applicants
show cause why the proceeding should not be
quashed on the ground that the Court was with
out jurisdiction to entertain it. What the Court is
to be asked to review in the proceeding, as set
out in the originating notice under section 28, is
"the decision of the Canada Labour Relations
Board, made the 12th day of November, 1973,
whereby the said Board decided that it has the
constitutional jurisdiction to entertain the afore
said Union Applications."
It appears from material placed before the
Court informally on the application for direc
tions and from what was stated to the Court by
counsel that the Board held a hearing on
November 12th, 1973, the purpose of which
was to hear submissions with respect to the
Board's jurisdiction to entertain the applica
tions. At that hearing counsel for the companies
concerned asked the Board to adjourn its hear
ing pending the determination of an application
for prohibition which was then pending in the
Trial Division of this Court but after hearing
argument on that request the Board recessed
and on reconvening announced that it had
decided that the Board had jurisdiction to enter
tain the certification applications. The Board
then suggested to those present that its "deci-
sion" might be made the subject of an applica
tion to this Court under section 28 of the Feder
al Court Act if any of the parties before them
wished to challenge it. A discussion ensued
from which it appears that the Board offered to
hear argument, either then or at a subsequent
hearing in the course of dealing with the
applications, on a constitutional point raised by
counsel for the companies in challenging the
Board's jurisdiction. This suggests that the
matter of the Board's jurisdiction had not been
finally decided even so far as the Board itself
was concerned and that the Board was prepared
to re-consider its jurisdiction again at a later
stage if and when a point of substance might be
raised in objection thereto.
At the time set by the order to show cause
counsel for the applicants took the position that
the Board's ruling was a "decision" within the
meaning of section 28(1) of the Federal Court
Act and he sought to support the proceeding on
that basis. Counsel for the Attorney General of
Canada and for the respondent Union conceded
that the matter was governed by the decision of
this Court in Attorney General of Canada v.
Cylien [1973] F.C. 1166 but they joined counsel
for the applicants in expressing the desire of all
parties to have a definitive ruling by the Court
on the question of the Board's jurisdiction as
quickly as possible. While such a determination
may be highly desirable, the consent of the
parties to the proceeding being entertained
cannot confer jurisdiction and the Court does
not entertain and determine such questions
academically.
In our opinion the ruling made or position
taken by the Board as to its jurisdiction is not a
"decision" within the meaning of section 28 of
the Federal Court Act and is not reviewable by
this Court under that section. It is not within the
competence of the Board to decide the limits of
its own jurisdiction so as to bind anyone. What
the Board can decide is whether or not to cer
tify a union and when it does so its decision will
be reviewable under section 28. There may of
course be matters arising in the course of pro
ceedings before it, which will be reviewable
under section 28, such as, for example, orders
to parties to do something which it is within the
jurisdiction of the Board to order them to do.
But the ruling here in question is not of that
nature and as we view it is of a kind which the
Court in Attorney General of Canada v. Cylien'
held to be not subject to review under
section 28.
It was submitted that the Board's ruling was a
"decision" because it was the Board's answer to
a question as to its jurisdiction which was raised
before it, which it was necessary for the Board
to decide before going on with the applications
and which the Board was authorized by section
118(p) of the Canada Labour Code to decide.
Whether or not incidental powers conferred by
section 118(p) are intended to be exercised by
the Board making interlocutory decisions on
questions that arise in the course of proceedings
or simply to be included in the decision by
which it exercises its express jurisdiction does
not have to be decided at this time. Whatever be
the correct view as to the effect of that provi
sion, it cannot have the effect of giving the
Board power to decide whether jurisdiction that
Parliament purported to confer on the Board
was within the power of Parliament to confer.
Counsel also relied upon the recent decision
of the Supreme Court of Canada with reference
to the effect of section 28(1) of the Federal
Court Act in Commonwealth of Puerto Rico v.
Humberto Pagan Hernandez. What the Supreme
Court held in that case to be within section
28(1) was the actual decision that the Extradi
tion Judge was required by the Extradition Act
to make and not some intermediate conclusion
on a question of fact or law. Moreover, we do
not find that anything said in that case bears in
any way on the problem that is raised by the
Cylien case and this case.
Reference was also made in the course of the
argument to section 122 of the Canada Labour
Code, R.S.C. 1970, c. L-1, subsection (1) of
which provides that subject to the provisions of
the Act orders and decisions of the Board may
not be questioned or reviewed in any Court
except in accordance with section 28 of the
Federal Court Act and subsection (2) of which
provides that subject to subsection (1) no order
shall be made or proceedings taken in any court
by way of injunction or prerogative writs or
otherwise to question, review, prohibit or
restrain the Board in any of its proceedings
under Part V of the Act. We do not think these
provisions have any effect on the question
before us. In our view section 122(1) of the
Canada Labour Code cannot and does not pur
port to affect the interpretation of section 28 of
the Federal Court Act so as either to enlarge or
abridge the jurisdiction of this Court under that
provision. If section 122(2) prevents the use of
other types of proceedings with respect to the
Board's exercise of its jurisdiction it is because
Parliament has made clear by that subsection
that the day-to-day exercise by the Board of its
authority to conduct the proceedings before it is
not to be called in question or hampered by
proceedings of that nature, though its decisions
affecting the rights of parties before it are to be
reviewable under section 28 of the Federal
Court Act. We express no opinion as to whether
section 122(2) has any application to prevent
proceedings in a case where the Board purports
to exercise a jurisdiction that has not been con
ferred on it.
The most obvious way of raising the constitu
tional question which all parties agreed it was
desirable to have finally determined at this stage
is for the Board to state and refer it to this
Court under section 28(4) of the Federal Court
Act but whether or not it should be so referred
is not for the Court or counsel but for the
exercise of its discretion for that purpose by the
Board. Alternatively, it may be possible to raise
it on a section 28 application against some spe
cific order by the Board requiring compliance
by a party to an application before it or by
prohibition proceedings in the Trial Division but
neither of these methods has the advantages of
such a reference either for the purpose of rais
ing the precise point that it is desired to have
decided or from the point of view of the time
likely to be involved in having it determined by
this Court.
The present section 28 application will be
quashed.
' It should be noted that the Cylien case was concerned
with the meaning of the word "decision" in section 28(1).
There was no question involved as to the meaning of `ord-
er" in that subsection.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.