A-513-77
Bank of Montreal (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Jackett C.J., Collier J. and Kelly
D.J.—Vancouver, March 22, 1978.
Judicial review — Labour relations — Certification order
for employees at branch of applicant — Board holding that a
particular stenographer not `employed in a confidential
capacity relating to industrial relations" — Whether or not the
Board erred in law in interpreting and applying the words
"matters relating to industrial relations" — Canada Labour
Code, R.S.C. 1970, c. L-1, s. 107(1) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
John C. Murray for applicant.
John Baigent for respondent.
Ian Donald for Service Office Retail Workers
Union of Canada.
SOLICITORS:
Hicks, Morely, Hamilton, Stewart, Stork,
Toronto, for applicant.
Baigent & Jackson, Vancouver, for respond
ent.
Rankin, Robertson, Giusti, Chamberlain &
Donald, Vancouver, for Service Office Retail
Workers Union of Canada.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: It is unnecessary to hear counsel
opposing the application.
This is a section 28 application to set aside a
certification order for all employees at the appli
cant's branch at Ganges, B.C., excluding certain
specified persons.
While it is put in different ways, as I read the
applicant's memorandum, and as I understood
counsel for the applicant, the sole basis for the
section 28 application is that the Board erred in
law in treating the person described as a stenogra
pher, who was not excluded, as a person who fell
within the definition of "employee" in section
107(1) of the Canada Labour Code, R.S.C. 1970,
c. L-1. That definition reads as follows:
"employee" means any person employed by an employer and
includes a dependent contractor and a private constable, but
does not include a person who performs management func
tions or is employed in a confidential capacity in matters
relating to industrial relations;
More specifically the section 28 application is
based, as I understand it, exclusively on the con
tention that the Board erred in law in holding that
the stenographer was not "employed in a confiden
tial capacity in matters relating to industrial
relations".'
Put another way the applicant contends in effect
that the Board erred in law (asked itself the wrong
question) in interpreting and applying the words
"matters relating to industrial relations". In this
connection, it seems clear that the Board acted on
the view that it was not sufficient to exclude a
person from the class of "employee", as defined, if
he was merely employed in a confidential capacity
in connection with such matters as "salaries",
"performance assessments", personal history or
family information, but rather took the view that
the employment had to be in relation to "industrial
relations" in the sense in which they are regulated
by Part V of the Canada Labour Code. I am
inclined to the view that the sense in which the
words in question are used in the statute must be
determined in relation to the context in which they
arise for consideration. I doubt that it is possible to
lay down a general definition in words other than
those found in the statutory definition. Within
' Some parts of the applicant's memorandum seem to be
contending that this evidence was "sufficient to conclude that
the stenographer occupied a confidential position". Since the
enactment of the present definition this would seem to be
obviously irrelevant unless she was employed in a confidential
capacity "in matters relating to industrial relations".
broad limits, in particular cases, it is, in my view, a
question of fact or opinion for the Board. 2 I am
not persuaded that, in the modern usage against
which the definition was enacted in 1972, the
words "matters relating to industrial relations"
include everything found on an individual
employee's personnel file, which would seem to be
the view that would have to be adopted to include
the duties of the stenographer as set out in the
applicant's memorandum in this Court. If the
question as to what the words mean is a pure
question of law, I am not persuaded that the view
adopted by the Board resulted in error. On the
evidence, a Board properly instructed as to the law
could, in my view, come to the conclusion that is
under attack.
Reference was made to material quoted by the
Board in considering the meaning of the expression
in question and to a view expressed by the Board
that "exclusions must be carefully interpreted and
applied to ensure the fewest number of persons are
excluded from the freedoms granted in the Code".
I have not been persuaded that the Board was led
into error by these quotations or that view.
I am of opinion that the section 28 application
should be dismissed.
2 Compare Brutus v. Cozens [1973] A.C. 854.
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.