A-364-78
Paul L'Anglais Inc. and J.P.L. Productions Inc.
(Applicants)
v.
Canada Labour Relations Board (Respondent)
and
Canadian Union of Public Employees, Attorney
General of the Province of Quebec and Attorney
General of Canada (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, March 15, 1979.
Judicial review — Labour relations — Canada Labour
Relations Board declared applicants to be federal works,
undertakings or businesses and therefore under its jurisdiction
— Whether or not s. 28 application should be dismissed
because decision a quo not a decision within meaning of s. 28
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 2, 108, 120.1,
133.
APPLICATION for judicial review.
COUNSEL:
Guy Dufort and André Comtois for appli
cants.
George A. Allison, Q.C. for respondent.
Richard Cleary for mis -en-cause Canadian
Union of Public Employees.
Louis Crête and Henri Brun for mis -en-cause
Attorney General of the Province of Quebec.
Jacques Ouellet for mis -en-cause Attorney
General of Canada.
SOLICITORS:
Johnston, Heenan & Blaikie, Montreal, for
applicants.
Martineau, Walker, Allison, Beaulieu,
MacKell & Clermont, Montreal, for respond
ent.
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for mis -en-cause Canadian
Union of Public Employees.
Bilodeau, Flynn & Roy, Montreal, for mis -
en-cause Attorney General of the Province of
Quebec.
Deputy Attorney General of Canada for mis -
en-cause Attorney General of Canada.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: This application, submitted pursuant
to section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, is against a decision of
the Canada Labour Relations Board, holding that
applicants are federal works, undertakings or busi
nesses within the jurisdiction of the Board.
On June 3, 1977 the Canadian Union of Public
Employees submitted an application to the Board,
in accordance with section 133 of the Canada
Labour Code, R.S.C. 1970, c. L-1,' asking the
Board to declare that the two corporations which
are the applicants in this Court constituted, to
gether with Télé-Métropole Inc., a single employer
and a single federal work, undertaking or business.
As both applicant corporations maintained that,
having regard to their activities, they were not
federal works, undertakings or businesses within
the meaning of sections 2, 108 and 133 of the
Code, 2 a hearing was held before the Board at
which the parties had an opportunity to submit
their evidence and arguments on this question. At
the conclusion of this hearing the Board handed
down the decision a quo, the last paragraph of
' Section 133 reads as follows:
133. Where, in the opinion of the Board, associated or
related federal works, undertakings or businesses are oper
ated by two or more employers, having common control or
direction, the Board may, after affording to the employers a
reasonable opportunity to make representations, by order,
declare that for all purposes of this Part the employers and
the federal works, undertakings and businesses operated by
them that are specified in the order are, respectively, a single
employer and single federal work, undertaking or business.
2 Sections 2 and 108 read in part as follows:
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative au
thority of the Parliament of Canada, including without
restricting the generality of the foregoing:
(f) a radio broadcasting station;
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'
organizations composed of such employees or employers.
which reads [[1979] 2 Can. L.R.B.R. 332 at p.
341] as follows:
We conclude therefore that Télé-Métropole Inc., Paul L'An-
glais Inc. and J.P.L. Productions Inc. are federal undertakings
and that their employees perform work which falls under the
jurisdiction established by the Canada Labour Code. In the
circumstances, the Board will pursue its investigation to deter
mine whether section 133 is applicable to the three companies
in question.
Counsel for the Canadian Union of Public
Employees argued that the application of appli
cants should be dismissed because the decision a
quo was not really a decision within the meaning
of section 28 of the Federal Court Act, and he
cited in support of his argument the decision of
this Court in B.C. Packers Ltd. v. Canada Labour
Relations Board [ 1973] F.C. 1194.
As we observed at the hearing, we feel that this
argument is correct.
In B.C. Packers Ltd. (supra), this Court held
that "the ruling made or position taken by the
Board as to its jurisdiction is not a `decision'
within the meaning of section 28". In the case at
bar the Board, by stating that applicants were
federal works, undertakings or businesses, made a
ruling as to its jurisdiction because it was simply
saying that the two applicants were undertakings
with respect to which the Court could exercise the
power conferred on it by section 133. In stating its
conclusions on this point, the Board did not make
a decision within the meaning of section 28
because, as the Court noted in B.C. Packers Ltd.,
the Act does not empower it to decide on its own
jurisdiction.
Contrary to the argument presented by counsel
for the applicants, section 133 does not confer on
the Board a power to decide which works, under
takings or businesses are federal and so subject to
the Board's jurisdiction. That section only empow
ers the Board to decide which federal works,
undertakings or businesses will be declared to be
single employers.
Applicants' chief argument on this head, how
ever, was based on section 120.1 of the Canada
Labour Code, a new provision in effect since June
1, 1978, which in the submission of applicants has
the effect of overturning the B.C. Packers Ltd.
decision.
The new section 120.1 reads as follows:
120.1 (1) Where, in order to dispose finally of an applica
tion or complaint it is necessary for the Board to determine two
or more issues arising therefrom, the Board may, if it is
satisfied that it can do so without prejudice to the rights of any
party to the proceeding ; issue a decision resolving only one or
some of those issues and reserve its jurisdiction to dispose of the
remaining issues.
(2) A decision referred to in subsection (1) is, except as
stipulated by the Board, final.
(3) In this section, "decision" includes an order, a determi
nation and a declaration.
It was argued that by determining that appli
cants were federal works, undertakings or busi
nesses subject to its jurisdiction, the Board was
merely exercising the new power conferred on it by
section 120.1 and, in accordance with the text of
section 120.1(2) it should be treated as final.
In our opinion this argument should be
dismissed.
According to section 120.1, where the Board has
before it an application or a complaint it may,
instead of deciding the matter all at once by either
allowing or dismissing it, decide in stages by
resolving the points at issue in turn. This section
concerns only the way in which the Board may
decide matters within its jurisdiction; it does not
have the effect of conferring on the Board a power
which it did not previously possess to decide on its
own jurisdiction.
For these reasons, the application will 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.