T-3540-78
C.J.M.S. Radio Montréal (Québec) Limitée
(Petitioner)
v.
Canada Labour Relations Board (Respondent)
and
Le Syndicat Général de la Radio C.J.M.S.
(C.S.N.), L'Association des Employés de
C.J.M.S., Minister of Labour, Attorney General
of Canada and Attorney General of Quebec
(Mis -en-cause)
Trial Division, Walsh J.—Montreal, August 14;
Ottawa, August 18, 1978.
Prerogative writs — Jurisdiction — Labour relations —
Prohibition — Application for writ of prohibition to prevent
inquiry into industrial dispute — Privative clause in Canada
Labour Code — Whether or not Court has jurisdiction to hear
application — Canada Labour Code, R.S.C. 1970, c. L-1, s.
122(1),(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 18(a), 28.
This is an application for a writ of prohibition against
respondent to prevent it from inquiring into an industrial
dispute between petitioner and mis -en-cause, Le Syndicat
Général des Employés de la Radio C.J.M.S. (C.S.N.).
Respondent, however, indicated its objection to the jurisdiction
of the Court to hear this application. The Court directed the
parties to argue the question of jurisdiction first, on the under
standing that it would only be if the Court found it had
jurisdiction that the arguments on the merits would be made.
Held, the application is dismissed. Section 122, as amended,
prohibits the use, inter alia, of writs of prohibition against the
Board on any ground including jurisdiction. This is particular
legislation as opposed to the general legislation of the Federal
Court Act, and is also subsequent legislation, and must prevail
unless it is ultra vires the powers of Parliament. Since this
section is not ultra vires, no writ of prohibition can be granted
to petitioner against respondent even if the Board were exceed
ing its jurisdiction in arranging to conduct the inquiry and
establish the terms of a collective agreement between petitioner
and the Syndicat representing its employees.
British Columbia Packers Ltd. v. Canada Labour Rela
tions Board [1973] F.C. 1194 and [1974] 2 F.C. 913,
referred to. Télévision St -François Inc. (CKSH- TV) v.
Canadian Labour Relations Board [1977] 2 F.C. 294,
referred to. Attorney General of Quebec v. Farrah [1978]
2 S.C.R. 638, referred to. Pringle v. Fraser [1972] S.C.R.
821, referred to.
APPLICATION.
COUNSEL:
G. Tremblay and J. Belhumeur for petitioner.
G. A. Allison, Q. C. for respondent.
L. Racicot for L'Association des Employés de
C.J.M.S.
A. Brabant for Le Syndicat Général de la
Radio C.J.M.S. (C.S.N.).
M. Cantin and R. Bilodeau for Attorney Gen
eral of Queeec.
G. Côté, Q.C. and J. Ouellet, Q.C. for Attor
ney General of Canada.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for petitioner.
Martineau, Walker, Allison, Beaulieu,
MacKell & Clermont, Montreal, for respond
ent.
L. Racicot, Longueuil, for L'Association des
Employés de C.J.M.S.
A. Brabant, Montreal, for Le Syndicat Géné-
ral de la Radio C.J.M.S. (C.S.N.).
M. Cantin and R. Bilodeau, Montreal, for
Attorney General of Quebec.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for a writ of
prohibition against respondent to prevent it from
inquiring into an industrial dispute between peti
tioner and the mis -en-cause Le Syndicat Général
des Employés de la Radio C.J.M.S. (C.S.N.) and
establishing the terms of an initial collective agree
ment between petitioner and the said mis -en-cause,
because the Minister of Labour had no right to
order the Board to make an inquiry pursuant to
section 171.1 of the Canada Labour Code which
included other negotiating groups than the
employees of petitioner, because the conditions of
section 180(1)(a) to (d) of the Code had been
infringed by the Syndicat, because the accredita
tion of the Syndicat itself has been questioned, and
because the respondent does not have the constitu
tional right to decide on the terms of a labour
agreement between petitioner and its employees.
Affidavits were submitted by Paul E. Dion,
secretary of petitioner, by Gérard Legault, Opera
tions Director, on behalf of respondent, by Guy de
Merlis, Mediation and Conciliation Director of the
Ministry of Labour of Canada, and by Marc Gil-
bert, employed by petitioner and President of Le
Syndicat Général des Employés de la Radio
C.J.M.S. (C.S.N.) the mis -en-cause.
The background facts are as follows:
(1) On June 13, 1978 the Ministry of Labour
directed the Canada Labour Relations Board to
conduct an inquiry pursuant to section 171.1 of the
Code into 5 disputes between radio stations and
the C.S.N. syndicate representing their employees,
which included the present petitioner and mis -en-
cause.
(2) The Syndicate mis -en-cause in the present
case was duly accredited after an inquiry by the
Board on June 26, 1978.
(3) By decision dated July 11, 1978 the Board
refused to accredit the mis -en-cause L'Association
des Employés de C.J.M.S. as it did not represent a
majority of employees.
(4) This latter decision is the subject of an
application to review and set same aside to the
Court of Appeal by virtue of section 28 of the
Federal Court Act.
At the opening of the hearing respondent stated
that it had served a declinatory exception disput
ing the jurisdiction of the Court to hear the
present application for a writ of prohibition. This
exception was not in the Court file, but since an
attack on jurisdiction is a fundamental objection to
the Court hearing the proceedings and could be
raised during the course of the hearing as a ground
for opposing the application, or even by the Court
of its own motion, the parties were directed to
argue the question of jurisdiction first, on the
understanding that it would only be if the Court
found it had jurisdiction that the arguments on the
merits, including the constitutional objection
would be made.
Prior to April 20, 1978 section 122 of the
Canada Labour Code' 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.
By section 43 of S.C. 1977-78, c. 27 assented to
April 20, 1978 this section was repealed and
replaced by the following:
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.
(2) Except as permitted by subsection (1), no order, decision
or proceeding of the Board made or carried on under or
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of
any court, whether by way of injunction, certiorari, prohibi
tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or
proceeding is beyond the jurisdiction of the Board to make or
carry on or that, in the course of any proceeding, the Board for
any reason exceeded or lost its jurisdiction.
It is evident that the new section which applies
in the present case goes much further in that it
restricts the right to review decisions of the Board
to paragraph 28(1)(a) of the Federal Court Act
rather than the whole of section 28, and, moreover,
prohibits the use, inter alla, of writs of prohibition
against the Board on any ground including
jurisdiction.
It should be pointed out that not only is this
particular legislation as opposed to the general
legislation of the Federal Court Act which in
section 18(a) gives the Trial Division jurisdiction
over writs of prohibition against any federal board,
commission or other tribunal, but it is also subse
quent legislation, and must prevail unless such
' R.S.C. 1970, c. L-1 as amended.
legislation was ultra vires the powers of the federal
Parliament.
Numerous cases have dealt with the effect of
privative clauses in legislation: In the case of Brit-
ish Columbia Packers Limited v. Canada Labour
Relations Board 2 my brother Addy J. stated at
page 921:
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.
In an appeal from an earlier judgment in this
case, the Federal Court of Appeal [1973] F.C.
1194 stated at page 1198:
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 conferred on it.
In the case of Télévision St -François Inc.
(CKSH- TV) v. Canadian Labour Relations
Board' my brother Dubé J. held that the privative
clause contained in section 122(2) of the Code
prohibits the Court from restraining proceedings
by virtue of section 18(b) of the Federal Court
Act. At page 299 he states:
2 [1974] 2 F.C. 913.
3 [1977] 2 F.C. 294.
As the proceedings of the Board are pursuant to the powers
conferred on it by the Code, the privative clause contained in
section 122(2) of the Code forbids any court to restrain such
proceedings by prohibition.
Reference was also made to the case of the
Attorney General of the Province of Quebec v.
Farrah [1978] 2 S.C.R. 638. In it Laskin C.J.
stated [at page 645]:
... it is quite clear under the judgments of this Court that
attempts to foreclose review on questions of jurisdiction raise
different considerations from those that arise in respect of
questions of law: see L'Alliance des Professeurs catholiques de
Montréal v. Labour Relations Board of Quebec ([1953] 2
S.C.R. 140), at p. 155; Executors of Woodward Estate v.
Minister of Finance (B.C.) ([1973] S.C.R. 120).
The case was decided on the basis however that
the Province of Quebec had entered into territory
forbidden to it by section 96 of The British North
America Act, 1867 by, in effect, constituting the
Transport Tribunal as the final court of appeal in
Quebec in matters within section 58(a) of the Act
(which was consequently found to -be ultra vires)
and by ousting the superintending and reforming
authority of the Superior Court over decisions of
the Commission as well as over decisions of the
Transport Tribunal. The same constitutional situa
tion does not apply here. Moreover, the right of
review by the Court of Appeal under section
28(1)(a) of the Federal Court Act is preserved to
protect the parties should the Board fail to observe
a principle of natural justice or have acted beyond
or refused to exercise its jurisdiction.
It would appear that the amended wording of
section 122 was specifically devised to overcome
some of the problems of decisions holding that
privative clauses could not be effective to prevent
interference with decisions of the board or tribunal
if it was acting without jurisdiction. The Canada
Labour Code gives the Labour Relations Board
jurisdiction over a "federal work, undertaking or
business" that is within the legislative au
thority of the Parliament of Canada and by defini
tion in section 2 of the Act includes:
2. ...
(f) a radio broadcasting station;
In the affidavit of Marc Gilbert it is pointed out
that petitioner's signals can be received outside of
Quebec and can cause interference outside the
province, and that all the personnel of petitioner
take part in the broadcasting enterprise directly or
indirectly whether by furnishing it services or
assuring its profitability.
I cannot conclude that section 122 of the
Canada Labour Code as amended is ultra vires the
Parliament of Canada, and if . full effect is given to
it it must be concluded that no writ of prohibition
can be granted to petitioner against respondent
even if it were exceeding its jurisdiction in arrang
ing to conduct the inquiry and establish the terms
of a collective agreement between petitioner and
the syndicat representing its employees. In the
Supreme Court case of Pringle v. Fraser 4 Laskin
J. as he then was stated:
I am satisfied that in the context of the overall scheme for
the administration of immigration policy the words in s. 22
("sole and exclusive jurisdiction to hear and determine all
questions of fact or law, including questions of jurisdiction")
are adequate not only to endow the Board with the stated au
thority but to exclude any other court or tribunal from enter
taining any type of proceedings, be they by way of certiorari or
otherwise, in relation to the matters so confided exclusively to
the Board. The fact that the result of such an interpretation is
to abolish certiorari as a remedy for challengeable deportation
orders is not a ground for refusing to give language its plain
meaning. This Court has held that habeas corpus, certainly as
honoured a remedy as certiorari, takes its colour from the
substantive matters in respect of which it is sought to be
invoked, and its availability may depend on whether it is
prescribed as a remedy by the competent legislature: see In re
Storgoff ([1945] S.C.R. 526). So too, certiorari, as a remedial
proceeding, has no necessary ongoing life in relation to all
matters for which it could be used, if competent excluding
legislation is enacted.
Since the hearing of the, application herein a
communication has been received by the Court
from counsel for the respondent, with copies sent
to counsel for all other parties, indicating that as
the question of jurisdiction has been taken under
advisement by the Court, and any consideration of
the merits of the application for a writ of prohibi
tion suspended, it is its, intention to suspend its
hearings sine die in this case and that of the other
four radio stations involved. This letter does not
mean that there is no longer any issue to decide,
but, on the contrary, as I understand it, the hear
ings will be resumed and new notices given by
4 [1972] S.C.R. 821 at pp. 826-827.
respondent to the parties concerned at an early
date in view of the decision I have now made to
dismiss petitioner's application for a writ of prohi
bition for want of jurisdiction to hear it.
ORDER
The application for writ of prohibition herein is
dismissed with costs in favour of respondent.
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.