A-689-79
Le Syndicat des employés de production du
Québec et de l'Acadie (Applicant)
v.
Canada Labour Relations Board and Canadian
Broadcasting Corporation (Respondents)
and
Roger Cuerrier, Francis André, Georges Beau-
doin, Serge Chapu, Jean Henquet, Adélard
Lavoie, Hervé Ouimet, Denis Paquette, Maurice
Poirier, Jean-Claude Rozec, Roland Théberge,
Jean-Marie Wuatelet, Charles Boulay and Deputy
Attorney General of Canada (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 6 and 8, 1981.
Judicial review — Labour relations — Application to review
and set aside a Canada Labour Relations Board decision
allowing an application made by the Canadian Broadcasting
Corporation pursuant to s. 182 of the Canada Labour Code to
declare that refusal by Corporation's employees to work over
time constituted an unlawful strike — Order of the Board
requiring the Union and the Corporation to submit the prob
lem of overtime to arbitration — Whether the Board exceeded
its jurisdiction — Canada Labour Code, R.S.C. 1970, c. L-1,
as amended, ss. 121, 122(1), 180, 182, 183. 183.1 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside a decision of the
Canada Labour Relations Board to allow an application made
by the Canadian Broadcasting Corporation pursuant to section
182 of the Canada Labour Code. By that decision, the Board
held that the instruction given by the applicant Union to the
Corporation's production employees to refuse to work overtime
constituted an unlawful strike within the meaning of the Code
and ordered the Union and the Corporation to submit the
problem of overtime to arbitration. Applicant Union argues
that the Board exceeded its jurisdiction as the refusal to work
overtime does not constitute a strike, and that the Board lacked
the power to make the order with respect to arbitration.
Held, the application is allowed in part. In answering the
question as to whether the concerted refusal by the employees
to work overtime constituted a strike within the meaning of the
Act, the Board remained within the limits of its jurisdiction.
Furthermore, the Board relied on a large number of precedents;
its decision cannot be said to be manifestly incorrect or based
on an unreasonable interpretation of the Act. Even if the Board
was mistaken on this point, it did not on that account cease to
have jurisdiction over the matter. The order requiring the
problem of overtime to be referred to arbitration is not one
which is authorized by section 182 or section 183.1 of the Code.
More precisely paragraph 183.1(1)(a) only empowers the
Board to attach the conditions which it considers appropriate to
the orders which it makes under sections 182 and 183. Section
121 of the Code did not empower the Board to make the
decision at issue. At the outside, this section relates only to the
powers necessary to perform the duties expressly imposed by
the Code on the Board; however, the Code does not impose on
the Board a duty to resolve labour disputes which may be the
cause of strikes.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corp. [1979] 2 S.C.R. 227, applied.
APPLICATION for judicial review.
COUNSEL:
Michel Robert for applicant.
Louis Le Bel for respondent Canada Labour
Relations Board.
Suzanne Thibaudeau for respondent Canadi-
an Broadcasting Corporation.
SOLICITORS:
Robert, Dansereau, Barré, Marchessault &
Lauzon, Montreal, for applicant.
Grondin, Le Bel, Poudrier, Isabel, Morin &
Gagnon, Montreal, for respondent Canada
Labour Relations Board.
Heenan, Blaikie, Potvin, Trépanier, Cobbett,
Montreal, for respondent Canadian Broad
casting Corporation.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicant Union is asking the
Court, pursuant to section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, to vacate an
order made by the Canada Labour Relations
Board on December 5, 1979.
On November 30, 1979 the Board received an
application made by the Canadian Broadcasting
Corporation pursuant to section 182 of the Canada
Labour Code, R.S.C. 1970, c. L-1, as amended.'
' The text of this section is as follows:
182. Where an employer alleges that a trade union has
declared or authorized a strike, or that employees have
participated, are participating or are likely to participate in a
strike, the effect of which was, is or would be to involve the
, participation of an employee in a strike in contravention of
this Part, the employer may apply to the Board for a
declaration that the strike was, is or would be unlawful and
The Corporation alleged that its production
employees in Montreal, Quebec and Moncton were
participating in an unlawful strike authorized by
applicant Union by refusing, at the behest of the
Union, to do overtime; it asked the Board to rule
that this concerted refusal to do overtime con
stituted an unlawful strike and order the Union to
revoke its decision to authorize this strike and to
inform employees thereof forthwith, and prohibit
the employees in question from proceeding with
the strike. The Board held an inquiry and heard
the parties. It found that, pursuant to section 180
of the Canada Labour Code, the employees in
question were not authorized to strike, that the
Union had in fact given these employees an
instruction to refuse to do overtime, and further
that this instruction was more fully complied with
by employees in Moncton and Quebec City than in
Montreal; finally, it found that the Union had
given this instruction as a means of inducing the
Corporation to recognize that, under the collective
agreement in effect, it did not have a right to
require its employees to do overtime. On Decem-
ber 5, 1979, the Board allowed the application of
the Canadian Broadcasting Corporation; its deci
sion is contained in paragraphs 3 and 4 of the
order it made on that day: 2
3. Moreover, the ban on overtime constitutes an unlawful strike
within the meaning of the Code and the Board so declares.
However, the Board has decided in the present circumstances
and for the time being, to exercise its discretion and not issue
an order in this regard with respect to the Corporation's
employees in Montreal, but hereby orders that the said ban be
ended immediately in Moncton and Quebec City, that all
the Board may, after affording the trade union or employees
an opportunity to be heard on the application, make such a
declaration and, if the employer so requests, may make an
order
(a) requiring the trade union to revoke the declaration or
authorization to strike and to give notice of such revoca
tion forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the
strike;
(e) requiring any employee who is participating in the
strike to perform the duties of his employment; and
(d) requiring any trade union, of which any employee with
respect to whom an order is made under paragraph (b) or
(c) is a member, and any officer or representative of that
union, forthwith to give notice of any order made under
paragraph (b) or (c) to any employee to whom it applies.
2 2 The first two paragraphs of this order allowed another
application made concurrently by the Corporation concerning
another group of employees.
employees in the bargaining unit and the respondent union in
these two locations comply with this order immediately, as well,
the respondent union shall give notice of this order to all its
members immediately;
4. The two parties, namely, the respondent union and the
Canadian Broadcasting Corporation, French Services Division,
are ordered to immediately submit the problem of whether or
not overtime is voluntary according to the provisions of the
collective agreement now in force, to an arbitrator appointed
pursuant to the provisions of section 155(2)(c) and/or (d) of
the Canada Labour Code, by means of one of the grievances
which is now pending and which deals with this question. The
arbitrator shall give priority to this matter in accordance with
the expedited arbitration procedure, and his decision should
resolve this problem until the signing of a collective agreement
which will replace the present one, which may contain different
provisions on this subject.
It is this decision which is the subject of this
review. Applicant, recognizing that subsection
122(1) 3 of the Canada Labour Code does not
enable this Court to vacate a decision of the Board
merely for an error of law, argued that the Board
had exceeded its jurisdiction. It did so on two
grounds: first because the concerted refusal of the
employees to do overtime did not constitute a
strike, and second, because even if there was an
unlawful strike, the Board lacked the power to
make an order in the terms of paragraph 4 of its
order of December 5, 1979.
In its application the Canadian Broadcasting
Corporation asked the Board to exercise the au
thority conferred upon it by section 182. In exer
cising that authority, the Board had to hear the
application and decide whether it should be
allowed. Among other questions, the Board had to
decide whether the concerted refusal of the
employees to do overtime constituted a strike
within the meaning of the Act. It was for the
Board to answer this question, and in doing so, it
remained within the limits of its jurisdiction unless
its reply was based on a manifestly unreasonable
interpretation of the Act. 4 In deciding that the
3 Subsection 122(1) 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 paragraph 28(1)(a) of the
Federal Court Act.
° Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation [ 1979] 2 S.C.R. 227.
refusal to do overtime constituted a strike, the
Board relied on a large number of precedents; I
think it is clear that its decision cannot be said to
be manifestly incorrect or based on an unreason
able interpretation of the Act. It follows that, even
if the Board was mistaken on this point, it did not
on that account cease to have jurisdiction over the
matter.
Applicant further argued that the decision a quo
exceeded the Board's jurisdiction in that the latter
lacked the power to order the injunction contained
in paragraph 4 of the order, under which the
parties were required to submit the dispute be
tween them to arbitration.
Sections 182 and 183.1 indicate what orders the
Board can make when it has before it an applica
tion asking it to rule that a strike is unlawful:
182. Where an employer alleges that a trade union has
declared or authorized a strike, or that employees have par
ticipated, are participating or are likely to participate in a
strike, the effect of which was, is or would be to involve the
participation of an employee in a strike in contravention of this
Part, the employer may apply to the Board for a declaration
that the strike was, is or would be unlawful and the Board may,
after affording the trade union or employees an opportunity to
be heard on the application, make such a declaration and, if the
employer so requests, may make an order
(a) requiring the trade union to revoke the declaration or
authorization to strike and to give notice of such revocation
forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the strike;
(c) requiring any employee who is participating in the strike
to perform the duties of his employment; and
(d) requiring any trade union, of which any employee with
respect to whom an order is made under paragraph (b) or (c)
is a member, and any officer or representative of that union,
forthwith to give notice of any order made under paragraph
(b) or (c) to any employee to whom it applies.
183.1 (1) An order made under section 182 or 183
(a) shall be in such terms as the Board considers necessary
and sufficient to meet the circumstances of the case; and
(b) subject to subsection (2), shall have effect for such time
as is specified in the order.
(2) Where the Board makes an order under section 182 or
183, the Board may, from time to time on application by the
employer or trade union that requested the order or any
employer, trade union, employee or other person affected there
by, notice of which application has been given to the parties
named in the order, by supplementary order
(a) continue the order, with or without modification, for such
period as is stated in the supplementary order; or
(b) revoke the order.
I think it is clear that the order requiring the
problem of overtime to be referred to arbitration is
not one which is authorized by section 182. This
can readily be seen from reading paragraphs
(a),(b),(c) and (d) of that section. The order also
does not appear to be authorized by section 183.1.
The only part of that section which is relevant to
this issue is paragraph 183.1(1)(a). In my view,
this provision does not enable the Board to make
any orders other than those provided for in sec
tions 182 and 183; it only empowers the Board to
attach the conditions which it considers appropri
ate to the orders which it makes under those
sections. I therefore conclude that neither section
182 nor section 183.1 gave the Board the power to
make the order contained in paragraph 4 of its
decision.
However, the question remains whether the
Board could make this order by virtue of the
general powers conferred on it by section 121 of
the Code. This section reads as follows:
121. The Board shall exercise such powers and perform such
duties as are conferred or imposed upon it by, or as may be
incidental to the attainment of the objects of, this Part includ
ing, without restricting the generality of the foregoing, the
making of orders requiring compliance with the provisions of
this Part, with any regulation made under this Part or with any
decision made in respect of a matter before the Board.
Counsel for the Board and the Canadian Broad
casting Corporation argued that this section
authorized the Board to make the decision at issue.
This decision was clearly made because the Board
felt it was necessary in order to re-establish good
relations between the Canadian Broadcasting Cor
poration and its employees. It was argued that as
the establishment of good industrial relations is
one of the purposes of Part V of the Code, and as
section 121 confers on the Board all the powers
necessary to carry out these purposes, it follows
that this section empowered the Board to make the
decision at issue. I cannot agree with this argu
ment. If section 121 were given such a scope, the
many provisions of the Act that specify the
Board's powers would be rendered useless. In my
view, the scope of section 121 is more modest. I
consider that at the outside this section relates
only to the powers necessary to perform the duties
expressly imposed by the Act on the Board; how
ever, as I understand it the Act does not impose on
the Board a duty to resolve labour disputes which
may be the cause of strikes.
I therefore conclude that the Board lacked juris
diction to make the order contained in paragraph 4
of its decision. It follows that this order must be
vacated. However, as it is "severable" from the
order contained in paragraph 3, the latter order
should be upheld.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
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