A-7-79
La Banque Provinciale du Canada (Applicant)
v.
Syndicat National des Employés de Commerce et
de Bureau du Comté Lapointe (CSN) (Respond-
ent)
and
Canada Labour Relations Board (Tribunal)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, May 31; Ottawa, June 28,
1979.
Judicial review — Labour relations — Certification order
— Canada Labour Relations Board finding that majority of
employees wished respondent to represent them was made as
of the date of the application — Applicant contending finding
to be made at time certification order made — Court's author
ity to review decisions of Board restricted to cases of jurisdic
tion including natural justice — Court's authority to grant
relief dependent on whether Board's alleged error one of law or
one resulting in Board having exceeded its jurisdiction —
Application dismissed — Canada Labour Code, R.S.C. 1970,
c. L-1, ss. 122(1), 126 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
R. Monette for applicant.
J. F. Munn for respondent.
L. LeBel for Canada Labour Relations Board.
SOLICITORS:
Ogilvy, Montgomery, Renault, Clarke, Kirk-
patrick, Hannon & Howard, Montreal, for
applicant.
Théorêt, Labbé et Associés, Quebec, for
respondent.
Grondin, LeBel, Poudrier, Isabel, Morin &
Gagnon, Quebec, for Canada Labour Rela
tions Board.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside an order under Part V of the Canada
Labour Code, R.S.C. 1970, c. L-1, certifying the
respondent as bargaining agent for the bargaining
unit of employees of the applicant therein
described.
The application for certification was made to
the Canada Labour Relations Board by the
respondent on May 3, 1978. The certification
. order was made on December 29, 1978.
The principal attack on the certification order is
that the finding by the Board that a majority of
the employees in the unit wished the respondent to
represent them was made as of the date of the
application (and the period within which there
might have been an intervention in the proceeding
before the Board) whereas it was a condition
precedent to the granting of certification that
there be such a finding as of the time when the
certification order was made.' The attack is based
on an error the Board is alleged to have made in
interpreting an amendment to section 126(c) of
the Canada Labour Code.
Counsel for the Board questions this Court's
authority to grant relief to the applicant on this
ground. I am of the view that there is no such
authority and I shall explain how I reach that
conclusion.
Under the law as it stood prior to June 1, 1978,
an order of the Board could, by virtue of section
122(1) of the Canada Labour Code as it then read,
be reviewed under section 28 (1) of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, which
reads:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
' In this connection, the applicant relies on this Court's
decision in CKOY Limited v. Ottawa Newspaper Guild [1977]
2 F.C. 412, which decision was rendered on February 16, 1977.
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
Effective June 1, 1978, section 122(1) was
replaced by a new section 122(1), which reads:
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 paragraph 28(1)(a) of the
Federal Court Act.'
The effect of this change in the Canada Labour
Code was to remove this Court's authority to set
aside an order or decision of the Board on the
ground that it was based on an error of law and to
limit the Court's authority to reviewing orders or
decisions of the Board to cases of jurisdiction
including natural justice. In my view, the change
applies in respect of any decision or order made by
the Board after the change came into effect.' The
question is, therefore, whether the alleged error of
the Board in its interpretation of section 126(c)
was a mere error of law or resulted in the Board
having exceeded its jurisdiction.
I recognize that, superficially, section 126 seems
like a jurisdiction provision. That provision pres
ently reads:
126. Where the Board
(a) has received from a trade union an application for
certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropri
ate for collective bargaining, and
(c) is satisfied that, as of the date of the filing of the
application, or of such other date as the Board considers
appropriate, a majority of the employees in the unit wish to
have the trade union represent them as their bargaining
agent,
2 See section 43 of chapter 27 of the Statutes of Canada,
1977-78, which was brought into force on June 1, 1978, by a
Proclamation dated May 12, 1978.
3 Cases holding that a change in appeal jurisdiction applies
only to a judgment in an action commenced after the change do
not, in my view, apply. Those cases are based, as I understand
them, on the view that there is a vested right to appeal
according to the law as of the time when an action was
launched. I see no parallel in an application for a certification
order. (The Court proceedings in this matter were launched by
the section 28 application.)
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the bargain
ing unit.
However, when Division III of Part V of the
Canada Labour Code is read as a whole, I am of
opinion that section 124(1), which expressly
authorizes applications to the Board for certifica
tion, impliedly confers on the Board jurisdiction to
consider and dispose of such applications and that
subsequent provisions that are framed in terms of
what the Board is required to find or to do are
provisions that, properly considered, establish the
legal rules that are to be followed by the Board in
exercising that jurisdiction. In my view, such sub
sequent provisions do not create limits on the
Board's jurisdiction to dispose of such applications.
When, therefore, a question arose in the matter
under consideration as to whether a change in
paragraph (c) (providing for the majority being
determined "as of the date of the filing of the
application ..." instead of as of the time of the
certification order) was applicable to a certifica
tion order made after the change pursuant to an
application made before the change, that question
was, in my view, a question of law that would fall
under section 28(1)(b) of the Federal Court Act
but does not fall under section 28(1)(a) thereof.'
Such are my reasons for concluding that this
Court has no power to set aside the certification
order in this case on the ground that the order was
based on an error of the Board in interpreting the
effect of the change in section 126(c).
The other attacks made on the certification
order are based on the Board's failure to take into
account
(a) a letter written by several members of the
bargaining unit on November 22, 1978 to the
union (a copy of which was sent to the Board)
" Even if decisions that certain errors of law deprive a
tribunal of jurisdiction apply in deciding what falls under
section 28(1)(a) of the Federal Court Act, in my view a
misinterpretation of paragraph (c) would not be an error that
deprives the Board of jurisdiction. It is merely an error in
interpretation of a statutory provision that governs the exercise
of the Board's jurisdiction.
advising that a majority had decided to with
draw from the union, and
(b) information in a letter from the applicant's
solicitor dated November 29, 1978, advising the
Board of certain changes of personnel in the
bargaining unit.
If such attacks are, in effect, based on alleged
breaches of the requirements of natural justice,
they fall within section 28(1)(a) of the Federal
Court Act and require to be considered by this
Court. I do not find it necessary to decide whether
they are attacks of that character.
The short answer to such attacks, in my view, is
that, as I understand the Board's reasons, it sup
ports its decision on its interpretation of the effect
of the new paragraph (c) of section 126 plus the
necessary finding of fact (neither of which may be
challenged on this section 28 application) and it
did not take the information in question into
account because it was not relevant to what had to
be decided. That being so, it is an academic ques
tion as to whether the Board's reasons why it
would not have considered such information even
if it were relevant, which reasons are not part of
the reasoning on which the Board based its deci
sion, would have amounted to a breach of the
requirements of natural justice if the information
had been relevant.
In my view, the section 28 application should,
for the above reasons, be dismissed.
* * *
LE DAIN J.: I agree.
* * *
HYDE D.J.: For the reasons given by the Chief
Justice the section 28 application should be
dismissed.
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.