Judgments

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A-411-78
Uranerz Exploration and Mining Limited (Appli- cant)
v.
Canada Labour Relations Board, International Union of Operating Engineers, Hoisting and Port able and Stationary, Local 870 and United Steel Workers of America (Respondents)
Court of Appeal, Heald and Ryan JJ. and Kelly D.J.—Toronto, January 26; Ottawa, June 8, 1979.
Judicial review — Labour relations — Union certification — Bargaining unit determined and first representation vote gave choice of either of two unions or no union — No one choice received majority but "no union" option received the least support — Choice in second representation vote between the two unions only — Whether or not Canada Labour Rela tions Board decision ordering certification of union winning majority in the second vote should be reviewed and set aside — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(i), 122(1), 126, 128(1),(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).
This is a section 28 application to review and set aside a decision of the Canada Labour Relations Board. Two unions, the Operating Engineers and The Steel Workers, sought to represent a bargaining unit, as yet without a bargaining agent, comprising all applicant's employees, with certain exclusions, at a Saskatchewan mining project. The Board directed that the ballots in a representational vote give the voters a choice of the Operating Engineers, The Steel Workers, or no union. No single choice won an absolute majority but that of not being represented by either union won the least support. In a second representation vote, where the choice was restricted to either the Operating Engineers or The Steel Workers, a majority of those voting in the bargaining unit favoured The Steel Work ers. The Board made the order here under attack certifying The Steel Workers as the bargaining agent for the unit.
Held, (Ryan J. dissenting) the application is allowed. There is nothing in the revised section 118(i) which entitles the Board to ignore the clear and plain provisions of section 128(2). Section 118(1) confers certain powers on the Board to order representation or additional representation votes. Section 128(2) does not confer any power to order such votes but prescribes the manner in which such votes are to be conducted. Section 128(2) only applies to votes where there is no other trade union as a bargaining agent, and requires that the ballot include a choice whereunder an employee can indicate his wish not to be represented by any trade union. For the Board to ignore the mandate of the section and to order a representation vote other than the one it was authorized to make was an assumption of an authority it did not have. It was a condition
precedent to the Board's power to grant certification that a majority of the employees in the bargaining unit wish to have the respondent Union represent them. In breaching section 128(2) by not giving the employees a choice as to the particular union or no union at all, the Board asked the wrong question, and based the certification on the answers given by the employees to that wrong question. Since the proper question was never asked of the employees, it is impossible to determine what the true wishes of the employees were. The Board, therefore, had nothing to rely on when it decided that the majority of employees wished to have the respondent Union represent them.
Per Ryan J. dissenting: The error should be characterized as an error of law, a mistake in statutory interpretation, made by the Board in the course of making a decision—the decision to certify—assigned to it by section 126 of the Canada Labour Code. As such, it is an error which is not reviewable under paragraph 28(1)(a) of the Federal Court Act. The effect of subsection 122(I) of the Canada Labour Code, by limiting judicial review to paragraph 28(1)(a), is by implication to exclude from review an error of law made by the Board in the course of making a decision assigned to it by relevant legisla tion. The Board's error in this case was such an error, and therefore, not of the Court's concern.
Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796 [1970] S.C.R. 425, applied. Re Toronto Newspaper Guild, Local 87, Ameri- can Newspaper Guild (C.I.O.) and Globe Printing Co. [1952] O.R. 345, agreed with. Service Employees' Inter national Union, Local No. 333 v. Nipawin District Staff Nurses Association [1975] 1 S.C.R. 382, distinguished. Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp. [1979] 2 S.C.R. 227, distin guished.
APPLICATION for judicial review. COUNSEL:
D. K. MacPherson, Q.C. for applicant.
G. Taylor, Q.C. and P. Alan Francis for
respondent Canada Labour Relations Board.
L. Ingle for respondent United Steel Workers of America.
SOLICITORS:
MacPherson, Leslie & Tyerman, Regina, for applicant.
Goldenberg, Taylor, Randall, Buckwold & Halstead, Saskatoon, for respondent Canada Labour Relations Board.
United Steel Workers of America, Toronto, for itself.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a decision of the Canada Labour Relations Board issued on August 2, 1978, wherein the Board ordered that the United Steel Workers of America (hereinafter The Steel Work ers) be certified as the bargaining agent for a unit of employees of the applicant as more particularly set forth in that decision.
The relevant facts are not in dispute: On Octo- ber 17, 1977, the International Union of Operating Engineers, Hoisting and Portable and Stationary, Local 870 (hereinafter the Operating Engineers) applied to the Board for certification as bargaining agent for a group of applicant's employees engaged in operating, repairing and servicing cer tain equipment in the Province of Saskatchewan. On November 7, 1977, The Steel Workers applied to the Board for certification for a unit of employees which included, inter alia, the unit applied for by the Operating Engineers. On December 28, 1977, The Steel Workers applied for permission to intervene in the application of the Operating Engineers and on January 10, 1978, the Board granted intervener status to The Steel Workers.
In March of 1978, the Board dismissed the application for certification by the Operating Engineers on the basis of the inappropriateness of the bargaining unit proposed and asked for sub missions from the parties as to the appropriate bargaining unit. On April 24, 1978, the Board directed a representation vote in a unit comprising all of applicant's employees at its Key Lake, Sas- katchewan uranium mining project including warehouse clerks but excluding office employees, technical and professional employees, safety employees, and "foremen and those above." The Board directed that the ballots give the voters a choice between:
(a) the Operating Engineers;
(b) The Steel Workers; or
(c) no union.
The result of this vote was as follows:
For representation by The Steel Workers-18 votes
For representation by the Operating Engi- neers-11 votes
For no representation by either union-10 votes.
On June 19, 1978, the Board directed a second representation vote among employees in the same voting unit and directed that the voters be given a choice between the Operating Engineers and The Steel Workers. In this vote, 28 ballots were marked in favour of The Steel Workers and 7 were marked in favour of the Operating Engineers. The total of valid ballots cast (35) represented 63.6% of the 55 eligible voters. On August 2, 1978, the Board made the order here under attack certifying The Steel Workers as the bargaining agent for the unit in question after expressing itself as being satisfied, by reason of the second representation vote, that a majority of the employees in the unit wished to have The Steel Workers represent them as their bargaining agent.
The applicant attacks the certification order of August 2, 1978, pursuant to section 28(1)(a) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, alleging that the Board acted beyond its jurisdiction or refused to exercise its jurisdiction and failed to observe a principle of natural justice. The principal thrust of the applicant's submissions in this regard centre upon the provisions of section 128(2) of the Canada Labour Code, R.S.C. 1970, c. L-1. Section 128, at all times relevant to this application, read as follows:
128. (I) Where the Board orders that a representation vote be taken among employees in a unit, the Board shall
(a) determine the employees that are eligible to vote; and
(b) make such arrangements and give such directions as the Board considers necessary for the proper conduct of the representation vote, including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.
(2) Where the Board orders that a representation vote be taken on an application by a trade union for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, the Board shall include on the ballots a choice whereby an employee may indicate that he does
not wish to be represented by any trade union named on the ballots.
It is the applicant's submission that, in ordering the second representation vote herein, the Board failed to include a requirement that there be included on the ballots to be used in such vote a choice whereby an employee may indicate that he does not wish to be represented by any trade union named on the ballots and that since, in respect of that unit of employees, no other trade union was at that time the bargaining agent, the provisions of section 128(2) were clearly breached.
In its reasons, the Board stated that it exercised its authority under section 118(i) of the Code as amended, to order a second ballot in which the employees be given a choice between representa tion by the Operating Engineers and by The Steel Workers only. That portion of the Board's reasons are found at page 158 of Volume 1 of the Appeal Book and read as follows:
The combination of the repeal of section 128(3) and revision of section 118(i) will allow the Board to present employees, on a second ballot, with the choice the Board would have preferred to give in CJRC Radio Capitale Ltée. This is consistent with labour relations board practice and provincial legislative policy (e.g. The Labour Relations Act, R.S.O. 1970, c. 232, s. 92(6)). It is consistent with parties' expectations and makes good sense in furthering the purposes and objects of the Code.
As I read this portion of the Board's reasons, what the Board is really saying here is that the amended section 118(1) allows it to ignore the provisions of section 128(2) of the Code in the circumstances of this case. Said revised section 118(i) reads as follows:
118. The Board has, in relation to any proceeding before it, power
(i) to order, at any time before the proceeding has been finally disposed of by the Board, that
(i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a representation vote or additional representation vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and
(ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;
In my view, and with every deference to the contrary opinion of the Board, I can find nothing in the revised section 118(i) which entitles it to ignore the clear and plain provisions of section 128(2) supra. Said section 118(1) confers on the Board certain powers to order representation or additional representation votes. Section 128(2) does not confer any power to order such votes but prescribes, rather, the manner in which such votes are to be conducted. The provisions of section 128 deal with the conduct of representation votes and become effective when the Board has ordered that a representation vote be taken. The provisions of subsection (2) thereof do not apply to every vote but only to those where, as here, there is no other trade union as a bargaining agent. In such a case, it is mandatory that the ballot include a choice whereunder an employee can indicate his wish not to be represented by any trade union. It seems to me that such a construction is consistent with the spirit and intent of the Code. In my view, one cannot assume that the eleven employees who favoured the Operating Engineers on the first vote would vote the same way on the second vote in the knowledge that they were in the minority on the first vote. Conceivably, all eleven might prefer no union to The Steel Workers. If such were the case and assuming everybody else voted the same, the second vote would have resulted in a majority vote against a union had such an option been given on the second ballot. Surely the purpose and intent of section 128(2) is to give to employees that third option if their democratic freedom of choice is to be preserved.
Furthermore, it seems to me that to hold that section 128(2) has no application to "additional representation votes" is to require a finding that, in effect, an "additional representation vote" is not "a representation vote" as that term is used in section 128(2). Such an interpretation is not one which, in my opinion, the relevant legislation may reasonably be considered to bear. The provisions of section 128(2) apply mandatorily to every representation vote therein described and for the Board to ignore the mandate of the section and to order a representation vote other than the one it
was authorized to make was an assumption of an authority which it did not have.
Accordingly, I have concluded for the above reasons that the Board was in error in the way in which it proceeded in this case. That, however, does not finally determine the matter. It was coun sel for the Board's submission to us that even if one assumes error in the Board's procedures in this case, that such an error would be an error of law and as such, judicial review is not available in respect thereof by virtue of the provisions of sec tion 122(1) of the Canada Labour Code which limits this Court's power to review Board orders to cases coming within the ambit of section 28(1)(a) of the Federal Court Act'. In its memorandum, the Board expressed this submission as follows:
15. It is respectfully submitted further by the Respondent Board that in interpreting the provisions of The Canada Labour Code the Board is carrying out a responsibility entrusted to it by the Statute. The responsibility is not entrusted to this Honourable Court. If the interpretation of the Statute involves a question of law, it is for the Board to determine. Even if, in the opinion of this Honourable Court the Board erred in such determination, it was in respect of a question specifically and exclusively entrusted by Parliament to the Board. It is therefore not subject to judicial review.
In answering the question whether the Board committed an error in law not reviewable by this Court or acted beyond its jurisdiction in which case this Court would be empowered to interfere, the decision of the Supreme Court of Canada in the case of Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796 2 is, in my opinion, instructive. In that case the Union sought certification as bargaining agent of all employees (with certain exceptions) at Metropolitan Life in its building division at Ottawa. The company opposed the application on the ground that the constitution of the Union could only be interpreted as excluding from mem bership in the Union those persons claimed by the Union for certification. The Board rejected the company's submission and applied a policy of its own making in dealing with the question whether an employee was a member of a union. That policy
The only portion of section 28(1)(a) which could possibly apply, in my view, on the facts of this case, is the portion conferring jurisdiction on the Court in cases where the tribunal acted beyond or refused to exercise its jurisdiction.
2 [1970] S.C.R. 425.
permitted a person to be so regarded upon mere application for membership and payment of at least $1 initiation fee or monthly dues. The Supreme Court of Canada held that it was a condition precedent to the Board having power to grant the Union's application for certification, that it be satisfied that more than 55% of the employees in the bargaining unit were members of the Union; if the Board had addressed itself to that question, its decision could not have been inter fered with by the Court although it appeared that the Board, in reaching it, had erred in fact or in law or in both; instead of asking itself that ques tion the Board embarked on an inquiry as to whether, in regard to the requisite number of employees, the conditions which the Board ex proprio motu applied, had been fulfilled; in pro ceeding in this manner, the Board failed to deal with the question remitted to it and instead decid ed a question not remitted to it and thereby had stepped outside its jurisdiction'. In delivering the judgment of the Court, Cartwright C.J. quoted with approval the concluding words of Robertson C.J.O. in the case of Re Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) and Globe Printing Company ([1952] O.R. 345 at 365) wherein he stated:
To put the matter in another way, the Board has assumed jurisdiction to grant certification to the applicant without first ascertaining that the applicant has the qualifications that permit its certification, and has thereby disregarded an impor tant limitation on the Board's jurisdiction.
In my view, the reasoning in both of the above cases applies to the case at bar. The Board's power to certify the respondent is derived from section 126 of the Canada Labour Code which reads as follows:
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
3 The above summary of the pertinent facts and the decision of the Supreme Court of Canada in the Metropolitan Life case is largely taken from the judgment of Dickson J. while referring to that case in the case of Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Asso ciation [1975] 1 S.C.R. 382 at 389-390.
appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargain ing unit.
Thus, in my view, it was a condition precedent to the Board's power to grant certification that it be satisfied that a majority of the employees in the bargaining unit wish to have the respondent Union represent them. In an endeavour to satisfy itself as to the wishes of a majority of the employees, it directed that a representation vote be taken but in those directions, it breached the provisions of sec tion 128(2) of the Code by not giving to the employees a choice as to a particular union or no union at all. That is, they, in effect, asked the employees the wrong question, and based the cer tification on the answers given by the employees to that wrong question. Since the proper question was never asked of the employees, it is impossible to determine what the true wishes of the employees were. Thus the Board had, in effect, nothing to rely on when it decided that the majority of the employees wished to have the respondent Union represent them. The Board has in effect, acted in a similar manner to the Board in the Globe Printing case (supra) by certifying without first ascertain ing properly and correctly that the Union has the qualifications to be certified and has thereby "disregarded an important limitation on the Board's jurisdiction."
Reference was made by both counsel for the applicant and counsel for the Board to the Supreme Court decision in the Nipawin District Staff Nurses case referred to supra. In my view, the circumstances in that case were different from those in the case at bar. In that case the Board dealt with the question remitted to it—i.e., was the association a trade union as defined in The Trade Union Act, 1972, S.S. 1972, c. 137? That question in turn required determination of the further ques tion whether the association was a company domi nated organization as defined in The Trade Union Act, 1972. The Board answered both questions but it was alleged that in making those answers, it improperly interpreted and applied certain provi sions of the Act thereby losing jurisdiction. Dick- son J. who wrote the judgment of the Court reject ed these submissions and held that the Board
neither overlooked nor wilfully disregarded the pertinent provisions of The Trade Union Act, 1972 and hence the Board did not lose jurisdiction. In the case at bar, the Board either overlooked or ignored the provisions of section 128(2) of the Code which, in my view, is a "jurisdictional error" reviewable by this Court pursuant to section 28(1)(a) of the Federal Court Act. In my view, the following passage from the judgment of Dickson J. 4 aptly describes the situation in the case at bar:
There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legis lation may reasonably be considered to bear, then the Court will not intervene.
It is my opinion that the Board here did "ignore the requisites of its constituent statute" and that this is not a case where the Board's decision "can be rationally supported on a construction which the relevant legislation may reasonably be con sidered to bear".
Since the hearing of this appeal, the Supreme Court of Canada has delivered judgment in the case of Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporations. The Board's action in the case at bar differs fundamentally, in my view, from the action under review in that case. In that case, the issue before the Board was the determination of the employer's rights created by the Public Service Labour Rela tions Act of New Brunswick, R.S.N.B. 1973, c. P-25, in a proceeding between an employer and a union. The Court held that the parties were prop erly before the Board and that the Board was required to determine whether certain conduct of the employer during a lawful strike was a violation of the prohibition of the Act, i.e., section 102(3); to determine the question before it, it was required of the Board that it interpret section 102(3); and the Board, in adopting one of several interpreta-
[1975] 1 S.C.R. 382 at pp. 388-389. 5 [1979] 2 S.C.R. 227.
tions to which the section was susceptible, did not err to the extent described in the Nipawin District Staff Nurses case (supra) as exposing its error to review.
In the New Brunswick Liquor Corporation case (supra), the conduct of the parties was a matter specifically committed to the Board for decision, the dimensions of the allowable conduct were set out in the Act, and the duty of the Board could not be carried out unless the Board determined what were the lowest.dimensions as imposed by the Act.
In the case at bar, the Board, in holding that it had the right to order a further representation vote, without observing the provisions of section 128(2), was not dealing with a question between the parties before it; it was departing from the duties imposed upon it by Parliament.
Parliament, in the statute, told the Board what it was to do under the circumstances and the Board could not, in my view, vary its obligation by misinterpreting the Act by which it was bound. In deciding that it was not required to follow the provisions of section 128(2), it acted in a way not open to it. In proceeding as it did, it acted without authority, that is to say, without jurisdiction.
Furthermore, in the New Brunswick case (supra), the Board was called upon to interpret the provisions of section 102(3) of the New Brunswick statute, a section that was very badly drafted and which bristled with ambiguities 6 .
In addressing the question as to the propriety of the Board's actions, Dickson J. said at page 237 of the judgment:
Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally support ed by the relevant legislation and demands intervention by the court upon review?
I do not see how one can properly so characterize the interpretation of the Board. The ambiguity of s. 102(3)(a) is acknowledged and undoubted. There is no one interpretation which can be said to be "right".
6 See judgment of the Court by Dickson J. at page 230 thereof.
In my opinion, that situation is a far cry from the situation here where the Board simply ignored, overlooked or failed to apply section 128(2), the provisions of which are not ambiguous or unclear in any way. This course of conduct, in my view of the matter, falls squarely within the ambit of the test set out in the Nipawin case (supra) and re-stated in the New Brunswick case (supra).
On this basis, the Court is, in my view, required to intervene. I would therefore allow this section 28 application and set aside the decision of the Board issued on August 2, 1978.
* * *
KELLY D.J.: I concur.
* * *
The following are the reasons for judgment rendered in English by
RYAN J. (dissenting): I have had the advantage of reading the reasons for judgment of Mr. Justice Heald. He has described the facts and identified the issues. I agree with him that the Canada Labour Relations Board erred. I would, however, characterize the error as an error of law, a mistake in statutory interpretation, made by the Board in the course of making a decision, the decision to certify, assigned to it by section 126 of the Canada Labour Code. As such, it is an error which is not, as I see it, reviewable under subsection 28(1), paragraph (a), of the Federal Court Act.
In this case, the Board at all relevant times was engaged in performing a duty imposed on it by paragraph 126(c)' of the Canada Labour Code. It was seeking to determine which, if either, of the two unions enjoyed majority support within the bargaining unit and thus had the right to be
' Paragraph 126(c) of the Canada Labour Code provides: 126. Where the Board
(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,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the
bargaining unit.
certified by the Board as the bargaining agent of the employees in the unit. The Board undoubtedly had jurisdiction to carry out this task. And, in addition, paragraph (p) of section 118 of the Code vests in the Board, in relation to any proceeding before it, power to decide, for all purposes of the Industrial Relations Part of the Code, any question that may arise in the proceeding.
In the course of exercising its jurisdiction, the Board misinterpreted relevant provisions of the Canada Labour Code. In so doing, it erred in law. In particular, it interpreted certain amendments to the Code, effective on June 1, 1978, as freeing it from its obligation under what had been, before repeal, subsection (3) of section 128 of the Code, to hold an additional representation vote on the basis specified in that subsection, and as vesting it with power to hold an additional representation vote under the newly amended section 118, para graph (i), free of the obligation imposed by the unrepealed subsection 128(2). The Board appar ently was of opinion—as I read its reasons—that the duty under subsection 128(2) had been satis fied before the taking of the additional vote because the choice stipulated in that subsection had been made available on the representation vote which had been held by virtue of section 127 and which had proved to be inconclusive. I do not agree, but I can see how the error may have occurred, when the Code, as amended, is read in the light of the amendments themselves.
Because of subsection 122(1)" of the Canada Labour Code, this Court is limited, in reviewing
" Section 122 of the Canada Labour Code provides:
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 (I), no order, deci sion 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, prohibition, 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.
the Board's decision to certify, to the grounds provided in subsection 28(1), paragraph (a), of the Federal Court Act. Subsection 28(1), which con tains three paragraphs, provides:
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
(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.
The effect of subsection 122(1) of the Canada Labour Code, by limiting as it does judicial review to review under paragraph (a), is by implication to exclude from review an error of law made by the Board in the course of making a decision assigned to it by relevant legislation. The Board's error in this case was such an error. It was an error of law made by the Board in the certification proceeding. Section 122 of the Canada Labour Code, as I read it, tells us that such an error, when made by the Canada Labour Relations Board, is not this Court's concern.
I have not overlooked that the applicant also submitted that there had been a denial of natural justice. In my view that submission lacked substance.
I would dismiss the application.
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