T-4796-77
Transportaide Inc. (Petitioner)
v.
Canada Labour Relations Board and l'Union des
chauffeurs de camions, hommes d'entrepôts et
autres ouvriers, local 106 (Respondents)
and
Attorney General of Canada (Mis -en-cause)
Trial Division, Walsh J.—Montreal, February 7;
Ottawa, February 13, 1978.
Prerogative writs — Certiorari and prohibition — Truck
drivers working for company, but not admitted that employed
by the company — Petitioner claiming to be mere furnisher of
employees and not in the transport business as alleged by the
Union — Order issued by Board requiring petitioner to give
information to investigating officer — Board's jurisdiction
queried — Whether or not prohibition should lie against the
Board's proceedings, and whether or not certiorari should be
granted re order Canada Labour Code, R.S.C. 1970, c. L-1,
ss. 108, 118, 122 Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18.
Petitioner seeks the issue of a writ of certiorari annulling an
order of the Canada Labour Relations Board, and a writ of
prohibition to suspend any other proceedings of the Board
relative to the respondent Union's application for accreditation.
It is agreed that only five truck drivers are involved, all working
for Sanborn's Motor Express, but it is not admitted that they
are in the employ of that company. The affidavit accompanying
the petition states that the petitioner does not carry on a
transport business but merely furnishes employees, which enter
prise is carried on solely within the geographical limits of
Quebec. The Union's application, however, states the nature of
the employer's business to be "general transport within and
without Quebec". The Board therefore issued the order in
question requiring petitioner to give the investigating officer
various details of its organization; petitioner queries the Board's
jurisdiction to hear the case. Respondent Board argues that the
Court is without jurisdiction to hear a section 18 application
because of the Labour Code's privative clause (section 122(1)),
and urges that the Board be allowed to determine its own
jurisdiction, subject to review.
Held, the application is allowed. The argument that the
Court's jurisdiction to hear this application pursuant to section
18 of the Federal Court Act is ousted by the privative clause of
section 122 of the Canada Labour Code has been established to
be invalid. As the Board's order is administrative and of an
interlocutory nature, a section 28 application is not available in
the present proceedings. The supplying of truck drivers to a
trucking company or companies that may or may not carry on
business extending beyond the limits of the province is not itself
a work or undertaking over which the Canada Labour Code
can have jurisdiction. There is sufficient evidence to find that
the Canada Labour Relations Board lacks jurisdiction over the
petitioners. A writ of prohibition should issue against respond
ent requiring it to suspend proceedings relative to the accredita
tion application. It is unnecessary to consider whether certio-
rari should be issued against the order.
British Columbia Packers Ltd. v. Canada Labour Rela
tions Board [1974] 2 F.C. 913, applied. Bell v. The
Ontario Human Rights Commission [1971] S.C.R. 756,
applied. Maritime Telegraph & Telephone Co. Ltd. v.
Canada Labour Relations Board [1976] 2 F.C. 343, dis
tinguished. Northern Telecom Ltd. v. Communications
Workers of Canada [1977] 2 F.C. 406, distinguished.
Voyageur Inc. v. Syndicat des chauffeurs de Voyageur
Inc. (CNTU) [1975] F.C. 533, referred to. R. v. Totten-
ham and District Rent Tribunal. Ex p. Northfield (High-
gate) Ltd. [1957] 1 Q.B. 103, referred to.
APPLICATION.
COUNSEL:
G. Dussault for petitioner.
G. F. Henderson, Q. C., for respondent.
R. Castiglio for mis -en-cause.
SOLICITORS:
Flynn, Rivard, Cimon, Lessard & Lemay,
Quebec, for petitioner.
Gowling & Henderson, Ottawa, for respond
ent.
Décary, Jasmin, Rivest, Laurin & Castiglio,
Montreal, for mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for a writ of
certiorari and of prohibition against the Canada
Labour Relations Board calling on it to cease any
further proceedings in its Record No. 555-860,
suspend the execution of its order rendered on
November 30, 1977, by Marc Lapointe, Q.C.,
seeking the issue of a certiorari annulling the said
order, and a writ of prohibition to respondents to
suspend any other proceedings in the records of the
Canada Labour Relations Board No. 555-860
relative to an application for accreditation deposit
ed by l'Union des chauffeurs de camions, hommes
d'entrepôts et autres ouvriers, local 106, seeking to
represent the employees of Transportaide Inc.
A similar application was made in Record No.
T-4791-77, Wanima Management Inc. v. Le Con-
seil canadien des relations du travail, and l'Union
des chauffeurs de camions, hommes d'entrepôts et
autres ouvriers, local 106, and Attorney General
of Canada, concerning Canada Labour Relations
Board Record No. 555-861, and the two applica
tions were heard together on the same facts so that
these reasons will apply to both applications.
At the opening of the hearing it was agreed that
only five persons, all truck drivers are concerned in
the two applications and that all are working for
Sanborn's Motor Express. It was not admitted
however that they are in the employ of that com
pany. It was disclosed that there was a third
application for certification by the Canada Labour
Relations Board in which Sanborn's Motor
Express is named as respondent, but no applica
tions for certiorari or prohibition are before the
Court in connection with those proceedings at
present. Aside from the admission the evidence
before the Court consists of an affidavit accom
panying the petition to which are annexed the
application for accreditation of the Union and the
order of the Canada Labour Relations Board. The
affidavit states that the petitioner does not carry
on a transport business, but merely furnishes
employees which enterprise is carried on solely
within the geographical limits of the Province of
Quebec. No cross-examination took place on this
affidavit nor were any answering affidavits filed by
any of the other parties. The Union's application
for certification therefore in which it indicates the
nature of the employer's business as being [TRANS-
LATION] "general transport within and without
Quebec" is entirely unsupported.
The order of the Board by virtue of section 118
of the Act' requires petitioner to give the investi
gating officer details of its Letters Patent, the
names of its shareholders and the number of
shares held, the names and addresses of its direc-
' Canada Labour Code, R.S.C. 1970, c. L-1 as amended.
tors and executive officers, whether it is a subsidi
ary of another company and if so its name and
address and the names and addresses of any other
companies affiliated with it, the names and
addresses of all its employees, an explanation of
the relations between it, Wanima Management
Inc., and Sanborn's Motor Express Inc., including
copies of all contracts between these companies for
furnishing and payment of services, a description
of the services furnished by Transportaide Inc.,
including a list of clients to whom it furnishes the
services and a chart of its internal organization,
explaining the various levels and relationships of
its employees. It was also ordered to post a
"Notice to Employees" pursuant to section 118(g)
of the Act which reads as follows:
118. The Board has, in relation to any proceeding before it,
power
(g) to require an employer to post and keep posted in
appropriate places any notice that the Board considers neces
sary to bring to the attention of any employees any matter
relating to the proceeding;
While this information would be useful and
probably necessary for the Board to determine
whether the certification sought by the Union
should be granted or not, and possibly also the
question as to whether the Board has jurisdiction
over the petitioner, the position taken by the peti
tioner is that since the Board has no jurisdiction, it
had no right to make such an order which should
therefore be rescinded by certiorari and the Board
prohibited from proceeding further with the
matter.
The form of invoice used by petitioner, Trans-
portaide Inc. in billing its clients was filed as an
exhibit. The heading indicates the nature of peti
tioner's business as follows: "Professional Trucking
Personnel and Industrial Help". The face of the
invoice indicates the name and address of the
company being billed and has the indications "Do
not advance money to our employees" and "Four
hours minimum per man per day". There is a place
for the description of the work, the job site and the
employee's name. It is indicated that the condi
tions of employment are found on the back. These
conditions indicate that personnel supplied by
Transportaide Inc. will not be entrusted with the
handling of money, etc. except at risk of the client,
that the client will insure any and all vehicles and
that "persons supplied and Transportaide Inc."
shall have full benefits of protection from such
insurance. The client must satisfy itself as to the
person's qualifications to drive and assume any
risk. Transportaide Inc. assumes no responsibility
for shortages or loss resulting from negligence or
theft on the part of the personnel they have sup
plied. From the reading of this it is readily appar
ent that the employees in question are employees
of Transportaide Inc. and not of the client or
clients, namely the trucking firms to whom they
are supplied. Transportaide Inc. would appear to
be a company merely supplying a specialized type
of personnel, namely for trucking operations and
industrial work, in the same way that Office Over
load supplies office employees.
In the case of Wanima Management Inc. the
business of the company according to the uncon-
tradicted affidavit consists of the supply of man
agement services, and counsel for petitioner con
tended that it does not even have any truckers in
its employ. While respondent Canada Labour
Relations Board may have hoped to obtain, as a
result of its order, some information indicating
that there is some interrelationship, or unified
control of Transportaide Inc. and Wanima Man
agement Inc. and possibly Sanborn's Motor
Express, there is nothing whatsoever in the evi
dence before the Court to indicate such relation
ship save for the fact that the affidavit accompany
ing the two petitions is in each case signed by
William R. G. Abbott as President of the two
companies. Part V of the Canada Labour Code
under which the certification is sought defines in
section 108 the persons to whom it applies. This
section reads as follows:
108. This Part applies in respect of employees who are
employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees and in respect of trade unions and employers' organ
izations composed of such employees or employers.
"Federal work, undertaking or business" is defined
in section 2 of the Act as being "any work, under
taking or business that is within the legislative au
thority of the Parliament of Canada". Section 92
of The British North America Act, 1867 outlining
the classes of subjects within the exclusive powers
of provincial legislatures states in subsection (10):
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
10. Local Works and Undertakings other than such as are of
the following Classes:—
a. Lines of Steam or other Ships, Railways, Canals, Tele
graphs, and other Works and Undertakings connecting the
Province with any other or others of the Provinces, or
extending beyond the Limits of the Province:
It is clear on the basis of the evidence before me
that the supplying of truck drivers to a trucking
company or companies, which may or may not
themselves carry on a business connecting the
province with one of the other provinces or extend
ing beyond the limits of the province, is not itself
such a business and hence is not a "federal work,
undertaking or business" over which the Canada
Labour Code can have jurisdiction. The situation
would appear to be very similar to that reported in
the case of Avis Transport of Canada Ltd. v.
Cartage and Miscellaneous Employees Union,
Local 931 2 in which it was held that a business of
renting automobiles or station wagons at an air
port does not constitute an integral part of an
airline voyage, and even though in some cases the
cars in question may be taken out of the province
cannot be considered to be an interprovincial
undertaking. In that case an extensive review was
made of a number of decisions and it was stated at
page 264:
[TRANSLATION] The proof shows that the company rents cars
in Quebec which may occasionally (5% or 6% of the cases
according to the evidence of Mr. Neil Mills) be returned
outside Quebec. The Avis company rents cars and not
transportation.
Respondent has two main arguments:
1. That this Court cannot on an application by
virtue of section 18 of the Federal Court Act
intervene to issue a writ of prohibition or certiorari
against the Board.
2 [1971] T.T. 260.
2. That in any event the Board should be allowed
to determine its own jurisdiction after full disclo
sure of all pertinent information to it.
The first argument is based on the provisions of
section 122 of the Canada Labour Code which
reads as follows:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with section 28 of the Federal
Court Act.
(2) Subject to subsection (1), no order shall be made, pro
cess entered or proceeding taken in any court, whether by way
of injunction, certiorari, prohibition, quo warranto or other
wise, to question, review, prohibit or restrain the Board in any
of its proceedings under this Part.
This argument was dealt with by Addy J. in the
case of British Columbia Packers Limited v.
Canada Labour Relations Board 3 at pages 921-
922, where after quoting section 122(2) of the
Canada Labour Code he stated:
In my view, there is nothing extraordinary in this privative
clause contained in the Canada Labour Code.
There are numerous decisions of common law courts of the
highest jurisdiction over many years which have held that
courts of superior jurisdiction possessing powers of prohibition
and entrusted with the duty of supervising tribunals of inferior
jurisdiction, have not only the jurisdiction but the duty to
exercise those powers notwithstanding privative clauses of this
nature where the application is based on a complete lack of
jurisdiction on the part of the tribunal of inferior jurisdiction to
deal with the matter with which it purports to deal. These
decisions are based on the very logical assumption that where
Parliament has set up a tribunal to deal with certain matters it
would be completely illogical to assume that, by the mere fact
of inserting a privative clause in the Act constituting the
tribunal and outlining its jurisdiction, Parliament also intended
to authorize the tribunal to deal with matters with which
Parliament had not deemed fit to entrust it or to exercise
jurisdiction over persons not covered by the Act of Parliament,
or to engage in an illegal and unauthorized hearing.
A fortiori, the principle would apply in cases where the
tribunal was purporting to deal with matters over which Parlia
ment itself did not have the power to convey jurisdiction to the
tribunal. The last-mentioned situation is precisely the one
which the processors, applicants, allege exists in the present
case since they allege that the power to legislate in this matter
in the circumstances of the present case has been exclusively
reserved to the provinces under section 92(13) of the British
North America Act. The alternative grounds of the motion,
namely, that the Act itself does not purport to give the respond
3 [1974] 2 F.C. 913.
ent Board jurisdiction over the applicants in the circumstances
of the present case would, if upheld, necessarily lead to a
finding that it was attempting to exercise jurisdiction in cir
cumstances not authorized by Parliament in the Canada
Labour Code and would, therefore, also give this Court the
jurisdiction to intervene.
Finally, I would like to state that it matters not whether the
power and duty of supervision is a general one, such as exists in
the superior courts of the provinces, flowing from custom and
the common law of England whereby courts of superior juris
diction have traditionally exercised the power or whether it is
founded entirely on a specific statutory provision such as
section 18(a) of the Federal Court Act in the case of this
Court.
I therefore find that I have jurisdiction to intervene on both
grounds raised in the application before me.
In •the case of Maritime Telegraph & Telephone
Company Limited v. Canada Labour Relations
Board 4 , Thurlow A.C.J., at pages 345 to 347
discussed this decision as well as the decision of
the Court of Appeal in the same case, ([1973]
F.C. 1194) and an unreported decision of Dubé J.
in Montreal Boatman Limited v. Canada Labour
Relations Board, Court No. T-3556-75, and he
then states at pages 346-347:
It appears to me that there are at least two reasons for
holding that in a case of this kind subsection 122(2) does not
oust the jurisdiction of the Trial Division under section 18 of
the Federal Court Act. The first is that subsection 122(2) is, by
its language, restricted to proceedings before the Board under
Part V of the Canada Labour Code which, by section 108, is
made applicable only to the persons therein mentioned in
respect of the operation of a federal work, undertaking or
business. Accordingly, unless the enterprise in question is a
federal work, undertaking or business, the proceedings before
the Board are not proceedings authorized by, nor are they
proceedings under Part V, and subsection 122(2) by its terms
has no application.
The other reason is that if the enterprise in question is not
one in respect of which Parliament has authority to legislate,
subsection 122(2) is subject to the same frailty and cannot
operate to prevent the Court from exercising its supervisory au
thority in the case.
I am accordingly of the opinion that the jurisdiction of the
Trial Division to entertain the present application is not ousted
by subsection 122(2) of the Canada Labour Code.
It appears that in any event an application
under section 28 of the Federal Court Act is not
available to petitioners at the present stage of
4 [1976] 2 F.C. 343.
proceedings. In the Appeal Court judgment of
British Columbia Packers Limited v. Canada
Labour Relations Board, (supra), Thurlow J., as
he then was, in rendering the judgment of the
Court stated at pages 1195-1196:
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.
and again on page 1196:
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 certify 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 proceedings before it,
which will be reviewable under section 28, such as, for example,
orders to parties to do something which it is within the jurisdic
tion 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 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 "order" in that
subsection.
Also of interest is the Court of Appeal case of
Voyageur Inc. v. Syndicat des chauffeurs de
Voyageur Inc. (CNTU) 5 in which Pratte J. stated
at page 535:
Thus, under section 28 of the Federal Court Act, the Court
of Appeal does not have the power to review or set aside a
"decision or order of an administrative nature not required by
law to be made on a judicial or quasi-judicial basis". In our
opinion, the decision to order a representation vote can be
validly made without the parties having had an opportunity to
be heard, and it does not have any of the other essential
characteristics of judicial decisions. Consequently, this is a
decision that does not lie within our jurisdiction under
section 28.
Reference might also be made to the Supreme
Court judgment in the case of Bell v. The Ontario
5 [1975] F.C. 533.
Human Rights Commission 6 in which the head-
note of the majority judgment read in part [at
page 757] as follows:
The powers given to a board of inquiry are to enable it to
determine whether or not there has been discrimination in
respect of matters within the scope of the Act. It has no power
to deal with alleged discrimination in matters not within the
purview of the Act or to make recommendations with respect
thereto. Whether the accommodation was covered by the Code
raised an issue respecting the scope of the operation of the Act,
and on the answer to that question depended the au
thority of the board to inquire into the complaint of discrimina
tion at all. The Act does not purport to place that issue within
the exclusive jurisdiction of the board, and a wrong decision on
it would not enable the board to proceed further. The appellant
was not compelled to await the decision of the board on that
issue before seeking to have it determined in a court of law by
an application for prohibition.
In rendering judgment Martland J. referred to the
judgment of Lord Goddard C.J. in R. v. Totten-
ham and District Rent Tribunal. Ex p. Northfield
(Highgate) Ltd.' in which the learned Chief Jus
tice stated at pages 107-108:
But Mr. Winn asked us to express some opinion whether it was
right for the applicants to apply to this court for prohibition or
whether they ought not to have gone to the tribunal and taken
the point there. Of course, they could have taken the point
before the tribunal, and if the tribunal had decided in their
favour, well and good. If the tribunal had decided contrary to
their contention, then they would have had to come here and,
instead of asking for prohibition, asked for certiorari; but I
think it would be impossible and not at all desirable to lay down
any definite rule as to when a person is to go to the tribunal or
come here for prohibition where the objection is that the
tribunal has no jurisdiction. Where one gets a perfectly simple,
short and neat question of law as we have in the present case, it
seems to me that it is quite convenient, and certainly within the
power of the applicants, to come here for prohibition. That does
not mean that if the tribunal, during the time leave has been
given to move for prohibition and the hearing of the motion,
like to continue the hearing they cannot do so; of course, if
prohibition goes it will stop them from giving any decision, and
if prohibition does not go they can give their decision. For
myself, I would say that where there is a clear question of law
not depending upon particular facts—because there is no fact
in dispute in this case—there is no reason why the applicants
should not come direct to this court for prohibition rather than
wait to see if the decision goes against them, in which case they
would have to move for certiorari. For these reasons, I think
that prohibition must go.
6 [1971] S.C.R. 756.
7 [1957] 1 Q.B. 103.
Respondents laid considerable stress on the
Supreme Court case of Sanders v. The Queen' a
criminal case in which the Supreme Court in a 5 to
4 decision held that section 682(b) of the Criminal
Code prevented the removal of a magistrate's
order by certiorari. In rendering the majority
judgment Martland J. stated at page 141:
In my opinion the section was intended to apply, and by its
terms does apply in a situation where, in the absence of the
section, the jurisdiction of the court might have been ques
tioned on certiorari. If the accused has appeared before the
inferior court, and has entered a plea, and if, thereafter, the
court has proceeded to try the issue raised by that plea upon the
merits, then the accused, if he wishes to attempt to set aside the
court's decision, must, if he is given by law a right to appeal,
seek his redress by way of appeal only. The intention of this
section was to preclude the co-existence of two remedies in
those cases to which it applies, and to compel resort to appeal
procedures where they are available.
This was a rather special case however and at most
is authority only for the proposition that certiorari
does not lie when an appeal is available. In the
present case the Act not only does not provide for
an appeal but rather for a section 28 remedy which
is more limited, and in any event as I have pointed
out this remedy is not available to petitioners at
the present stage of proceedings as the order of the
Board to produce documents is an administrative
order of an interlocutory nature and not a final
one. Were all these documents furnished pursuant
to the order it is of course quite possible that the
Board would itself conclude it had no jurisdiction
and that would be the end of the matter. If it
found it had jurisdiction then a section 28 applica
tion to contest this would be available. If the
Board had doubts in the matter it could avail itself
of the procedure set out in section 28(4) which
reads as follows:
28. ...
(4) A federal board, commission or other tribunal to which
subsection (1) applies may at any stage of its proceedings refer
any question or issue of law, of jurisdiction or of practice and
procedure to the Court of Appeal for hearing and
determination.
There is nothing whatever however to indicate that
it would do so. This possibility was referred to in
the Appeal Court judgment in the B.C. Packers
case (supra) in which it was stated at page 1198:
8 [1970] S.C.R. 109.
The most obvious way of raising the constitutional question
which all parties agreed it was desirable to have finally deter
mined 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 specific 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 raising 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.
I believe the remarks of Lord Goddard in the
Tottenham and District Rent Tribunal case
(supra) are particularly apt in their application to
the present situation for if the Court in the present
case can conclude that there is a simple question of
law involved it is convenient to grant the prohibi
tion sought rather than force the petitioner to
await a decision of the Labour Relations Board on
a question of its jurisdiction and then possibly
bring proceedings under section 28 of the Federal
Court Act to set aside such a decision.
It is now therefore necessary to consider wheth
er on the facts of this case there is sufficient
evidence before the Court on which it can make a
finding that the Canada Labour Relations Board
lacks jurisdiction over the petitioners. The judg
ment of Associate Chief Justice Thurlow in the
Maritime Telegraph & Telephone case (supra) is
of particular interest because it closely resembles
the present proceedings and in it the learned
Associate Chief Justice concluded that the ques
tion of jurisdiction should be left to the Board to
determine. At pages 354-355 he stated:
It is, therefore, by no means apparent from the material
before the Court either that the Board is persuaded by the
union's submissions, whether commented on or not by the
plaintiff, that it has jurisdiction to proceed with the union
application, or that, at this stage, it has determined to assert
jurisdiction over the plaintiff. The plaintiff having raised the
objection, the Board appears to me to have simply followed a
course calculated to elicit information upon which to determine
whether it should assume and assert jurisdiction or decline it.
So matters stood at the time when this application was
launched and, so far as appears from the material before the
Court, the plaintiff was not at any time since April 2nd, 1975,
and is not at the present time, threatened with the exercise by
the Board of an unwarranted jurisdiction over it. The Board
may yet conclude, on what is before it, that it should not assert
jurisdiction. Or it may decide to investigate the matter further
before determining its course. In either case, it is not presently
threatening the exercise of jurisdiction over the plaintiff, and
this, in my view, is a matter to be taken into account in
exercising the Court's discretion to grant or deny the issue of
prohibition directed to the Board at this stage.
On the whole, I reach the conclusion that in the exercise of
the Court's discretion, the application should be refused and it
will, therefore, be dismissed, with costs.
It is important to note that he did not object to
procedures being brought under section 18 of the
Federal Court Act seeking a writ of prohibition
from the procedural point of view, but merely in
the exercise of the Court's discretion he decided
that it should be refused. I believe that this case
can be clearly distinguished on the facts however.
In that case as in the present proceedings there
was before the Court only a single affidavit by the
President and Chief Operating Officer of the
plaintiff and there was no cross-examination on it
nor any evidence adduced by the Union nor any
significant evidence submitted on behalf of the
Board. After reviewing this evidence the learned
Associate Chief Justice states at pages 348-349:
The evidence is, therefore, in my opinion, not necessarily
inconsistent with the undertaking being in fact one which
includes the provision of services of an extraprovincial
character.
It is, no doubt, not to be presumed that by providing in some
way for the carriage of the extraprovincial telecommunication
traffic of its customers, the plaintiff does so by carrying on an
extraprovincial, and thus a federal, undertaking. But while that
is not to be presumed, as it appears to me, it is incumbent on a
plaintiff, in seeking in this Court prohibition to prevent the
Canada Labour Relations Board from carrying out its statutory
function, which includes at least the exploring, if not the final
adjudication of its jurisdiction to deal with the matter in
respect of which its authority has been invoked, to establish the
facts clearly and leave the Court in no doubt as to the precise
nature of the undertaking that is being carried on.
and again on pages 349-350:
An application for prohibition is an appropriate procedure
for having a question of jurisdiction authoritatively determined
at an initial stage, where there is a clear question of law arising
on facts which are not in dispute*. But it seems to me that
where the facts, though not necessarily in dispute, or though
not necessarily open to serious contest, have not been put before
this Court to a sufficient extent to demonstrate the lack of
jurisdiction the Court is justified in being reluctant to decide
once and for all that jurisdiction does not exist and that the
Board is not entitled to so much as explore the facts upon which
its jurisdiction turns.
* See Bell v. Ontario Human Rights Commission [1971]
S.C.R. 756 and the passage cited therein from the judgment of
Lord Goddard C.J. in Ex parte Northfield (Highgate) Ltd.
[1957] 1 Q.B. 103 at page 107.
The situation in that case was clearly a much more
intricate one than that in the present proceedings
where the uncontradicted evidence discloses that
the petitioner is merely a supplier of the services of
truck drivers and not an operator of a trucking
operation whether intra or interprovincial. Refer
ence might also be made to the case of Northern
Telecom Limited v. Communications Workers of
Canada 9 , in which the Court of Appeal confirmed
a certification order by the Board. This decision is
now under appeal before the Supreme Court.
Chief Justice Jackett stated at page 408:
The contention was based on the assumption that it is a
condition precedent to the exercise by the Board of its jurisdic
tion to grant an application for certification that it have before
it evidence establishing that the facts are such as to enable it to
make findings of facts giving it jurisdiction to grant the
application. I do not accept that assumption. In my view, the
question whether an order falls within the ambit of a tribunal's
authority, in the absence of special authority vested in it to
determine itself the facts giving it jurisdiction, does not depend
on what the tribunal finds with regard to jurisdictional facts
nor upon what evidence, if any, was before the tribunal of such
jurisdictional facts. If the facts, as made to appear to a
reviewing court, are such as to give a tribunal jurisdiction, an
order made within the ambit of that jurisdiction must be found
to be valid even if there were no evidence of such facts before
the tribunal when it made the order. Conversely, if the facts, as
made to appear to a reviewing court, are such as to show that
the tribunal had no jurisdiction to make an order, the order
must be found to be a nullity even though, when the tribunal
made the order, it had evidence before it that appeared to
establish facts that would have given it jurisdiction to make the
order.
The Court found that the onus was on the appli
cant to ensure that evidence of the facts necessary
to support the application be made before the
Court. In that case the applicant did not seek to
adduce any evidence on the question of jurisdiction
before the Court and had abstained from putting
the matter in issue before the Board. The Court
therefore found that there was no evidence upon
which it could find that the Board acted beyond its
jurisdiction. In dealing with an argument based on
9 [1977] 2 F.C. 406.
section 118(1)(p) of the Canada Labour Code
which gives the Board power to decide any ques
tion arising in a proceeding "before it" the Court
found that that did not give the Board power to
decide whether a particular case was lawfully
"before it". It is evident that the facts in that case
were quite different from those now before the
Court where there is evidence to support the
application.
I believe therefore that in the present case a writ
of prohibition should issue against respondent the
Canada Labour Relations Board requiring it to
suspend any proceedings in its Record No. 555-
860 relative to the application for accreditation
deposited by l'Union des chauffeurs de camions,
hommes d'entrepôts et autres ouvriers, local 106,
and that a similar prohibition should be issued in
the case of Wanima Management Inc., in connec
tion with the application for accreditation bearing
the Board's Record No. 555-861.
In view of this finding it is unnecessary to
consider the somewhat more difficult question of
whether certiorari should be issued against orders
rendered on November 30, 1977, requiring peti
tioners to produce documents and perform certain
acts enumerated therein, as in view of the prohibi
tion to proceed further with the matter for lack of
jurisdiction the Board cannot require petitioners to
comply with these orders. Costs shall be in favour
of the petitioners, only one set of costs being
allowed for the hearing of the petitions which were
heard together.
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