A-406-80
Canadian Telecommunications Union, Division
No. 1 of the United Telegraph Workers (Appli-
cant)
v.
Canadian Brotherhood of Railway, Transport and
General Workers, Canadian Telecommunications
Division of Canadian Brotherhood of Railway,
Transport and General Workers, Canadian Na
tional Railway Company, Telecommunications
Department, Canadian Association of Communi
cations and Allied Workers, United Telegraph
Workers, Brotherhood of Railway, Airline, and
Steamship Clerks, Freight Handlers, Express and
Station Employees, and Canada Labour Relations
Board (Respondents)
and
Deputy Attorney General of Canada
Court of Appeal, Pratte and Le Dain JJ. and
Lalande D.J.—Montreal, March 5 and 6; Ottawa,
June 22, 1981.
Judicial review — Labour relations — Application to set
aside the decision of the Canada Labour Relations Board
ordering that the Canadian Association of Communications
and Allied Workers (CACAW) succeed the Canadian Brother
hood of Railway, Transport and General Workers (CBRT) as
the bargaining agent for the telecommunications employees of
Canadian National Railway Company (CN) — Applicant is
the bargaining agent for the telecommunications employees of
Canadian Pacific Limited (CP) — CN and CP entered into a
partnership agreement providing for the integration of their
telecommunications services — Board refused to permit appli
cant to intervene in the decertification of the CBRT proceed
ings because it did not represent the employees of the employer
before the Board — Applicant submits that if CBRT had
continued to be the bargaining agent for the CN employees, it
would not have threatened the existence of the applicant since
CBRT probably would not have applied to be recognized as the
bargaining agent of all the employees of the partnership —
Whether applicant is "directly affected" by Board's decision
and therefore entitled to apply for judicial review pursuant to
s. 28(2) of the Federal Court Act — Application dismissed —
Canada Labour Code, R.S.C. 1970, c. L-1, as amended, ss.
119, 143, 144 — Canada Labour Relations Board Regulations,
1978, SOR/78-499, ss. 2, 17 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
Application to set aside a decision of the Canada Labour
Relations Board ordering that the Canadian Association of
Communications and Allied Workers (CACAW) be the bar
gaining agent for the telecommunications employees of the
Canadian National Railway Company (CN). The Canadian
Brotherhood of Railway, Transport and General Workers
(CBRT), the Union representing CN telecommunications
employees, applied to the Board to be decertified. CACAW
intervened and asked to be recognized as the successor to
CBRT. Before a vote was held, the applicant herein, which is
the bargaining agent for the telecommunications employees of
Canadian Pacific Limited (CP), sought to intervene. CN and
CP signed a partnership agreement providing for the integra
tion of their telecommunications services. Any union affected
by the partnership could apply to the Board under subsection
144(3) of the Canada Labour Code for recognition as the
bargaining agent of all the employees of the partnership. The
applicant and the CBRT had this right. The Board rejected the
applicant's request to intervene in the CBRT decertification
proceedings because the applicant did not represent the
employees of the employer before the Board. After a vote was
held, the Board substituted CACAW as the bargaining agent.
The applicant submits that it is directly affected by this
decision because if the CBRT had continued to be the certified
bargaining agent of the CN employees it would not have
threatened the existence of the applicant since it probably
would not have applied to be recognized as the successor as it
was supported by few employees of the partnership. The ques
tion is whether the applicant is "directly affected" by the
Board's decision pursuant to subsection 28(2) of the Federal
Court Act.
Held, the application is dismissed. Under subsection 28(2) of
the Federal Court Act, a section 28 application "may be made
by the Attorney General of Canada or any party directly
affected by the decision or order". In order to succeed, the
applicant must be "directly affected" by the decision under
attack. While the decision clearly affects the rights and obliga
tions of the CBRT and the CACAW, it affects the applicant in
an entirely different manner: the decision strengthens the posi
tion of the CACAW in the eyes of the employees and gives that
Union a status enabling it to initiate proceedings under subsec
tion 144(3) of the Code which may eventually lead to the
applicant's decertification. The applicant is only affected in
directly by the Board's decision which merely creates a situa
tion that may, eventually, affect the applicant. Therefore the
applicant does not have the locus standi required to bring a
section 28 application.
Also, per Le Dain J.: The interest which the applicant asserts
as the basis of standing may be described as the maintenance of
an existing competitive relationship. It has been suggested that
the courts should be more ready to recognize an adverse effect
on a competitive position as sufficient for standing. But the
courts must consider whether the particular competitive posi
tion or advantage is entitled to protection. The recognition and
maintenance of the competitive position or advantage of the
applicant would involve the denial of the right of the employees
in the Division to continuity of willing and effective representa
tion pending determination of the right to represent employees
of the CN-CP telecommunications partnership. That cannot be
an interest the protection of which is contemplated by the
Code, and should not be regarded as sufficient for standing to
challenge the Board's decision.
APPLICATION for judicial review.
COUNSEL:
Hélène LeBel for applicant.
Robert Monette for respondent Canadian Na
tional Railway Company, Telecommunica
tions Department.
R. Koskie, Q.C. and M. Zigler for respondent
Canadian Association of Communications
and Allied Workers.
G. J. McConnell and J. MacPherson for
respondent Canada Labour Relations Board.
Maurice Wright, Q.C. for respondent Broth
erhood of Railway, Airline, and Steamship
Clerks, Freight Handlers, Express and Station
Employees.
SOLICITORS:
Jasmin, Rivest, Castiglio, Castiglio & LeBel,
Montreal, for applicant.
Ogilvy, Renault, Montreal, for respondent
Canadian National Railway Company, Tele
communications Department.
Robins and Partners, Toronto, for respondent
Canadian Association of Communications
and Allied Workers.
Kitz, Matheson, Green & MacIsaac, Halifax,
for respondent Canada Labour Relations
Board.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent
Brotherhood of Railway, Airline, and Steam
ship Clerks, Freight Handlers, Express and
Station Employees.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of the Canada Labour Rela
tions Board ordering that the Canadian Associa-
tion of Communications and Allied Workers
(CACAW) be the bargaining agent for a unit
comprising employees of the Telecommunications
Department of the Canadian National Railway
Company.
The certified bargaining agent for the employees
included in that unit' was, at one time, the
Canadian Telecommunications Union, Division 43
of the United Telegraph Workers. On October 21,
1974, that Union disaffiliated itself from the
United Telegraph Workers and merged with the
Canadian Brotherhood of Railway, Transport and
General Workers (CBRT). Following that merger,
the CBRT replaced the Union as the certified
bargaining agent for the Canadian National Tele
communications employees.
The Union, as a consequence of its merger with
the CBRT, ceased to have any legal existence; in
fact, however, it continued to exist as the Canadi-
an Telecommunications Division of the CBRT.
But the relations between the Division and the
CBRT were not happy. Apparently, the Division
wanted to enjoy more autonomy within the CBRT
than that organization was willing to concede. In
the end, the CBRT concluded that it had lost the
confidence of a majority of employees in the unit
and should no longer represent them. On August
28, 1979, it applied to the Board, under section
119 of the Canada Labour Code, R.S.C. 1970, c.
L-1, as amended, 2 for an order varying the various
orders under which it had been certified and
approving its request "to be divested of its
representational rights and responsibilities" under
those orders.
' Until the order under attack was made, those employees
were divided into many units having the same bargaining agent.
2 That section reads as follows:
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any
application before making an order in respect of the
application.
Notice of that application was given to the
Division and the employer. The officers of the
Division intervened and asked that the consider
ation of the CBRT's application be delayed so as
to give them time to create a new union which
could succeed the CBRT and acquire the rights
and responsibilities it wished to abandon.
In December 1979, the Canadian Association of
Communications and Allied Workers (CACAW),
which was the Union formed by the officers of the
Division, intervened in the proceedings and asked
to be recognized as the successor of the CBRT and
the bargaining agent for the Canadian National
Telecommunications employees. In support of its
application, it filed evidence purporting to show
that it had the support of a majority of employees
in the unit.
Another intervention was received by the Board
from the United Telegraph Workers, the organiza
tion with which the Division had been affiliated
before its merger with CBRT. That organization
also claimed to be entitled to succeed the CBRT as
the bargaining agent for the CN Telecommunica
tions employees.
In January 1980, the Board decided to hold a
vote among the members of the bargaining unit in
order to determine whether the employees wished
to be represented by the United Telegraph Work
ers, the CBRT or the newly formed association,
the CACAW. That vote showed that the CACAW
had the support of an overwhelming majority of
employees.
The results of the vote had not been compiled
yet, when, on April 24, 1980, the Canadian Tele
communications Union, Division No. 1 of the
United Telegraph Workers, sought to intervene.
That Union is the applicant in this Court; it is the
certified bargaining agent for the employees of the
Telecommunications Department of Canadian
Pacific Limited and, as its name indicates, is
affiliated with the United Telegraph Workers. It
asserted that it had an interest in the proceedings
before the Board since Canadian Pacific Limited
and Canadian National Railway Company had, on
March 13, 1980, signed a partnership agreement
providing for the integration of their telecommuni-
cation services; it said that, as a result of that
agreement, it represented employees having the
same employer (i.e., the partnership) as the
employees represented by CBRT. The applicant
further alleged that the representation vote had
been conducted irregularly and, also, that the
Board, in the circumstances, had no jurisdiction to
certify CACAW as the bargaining agent of the
CN Telecommunications employees since no
"merger or amalgamation of trade unions or a
transfer of jurisdiction among trade unions" had
taken place which would have permitted CACAW
to invoke section 143 of the Code. 3 The Board
immediately rejected that request of the applicant
for reasons that it expressed as follows in a telex
addressed to the applicant's counsel:
AT THIS STAGE, THE CANADIAN TELECOMMUNICATIONS
UNION, DIVISION No. 1 OF THE UNITED TELEGRAPH WORK
ERS, WHICH AS WE UNDERSTAND DOES NOT REPRESENT
EMPLOYEES OF THE EMPLOYER IN THESE PROCEEDINGS BUT
RATHER EMPLOYEES OF ANOTHER EMPLOYER SEEKS TO
INTERVENE IN THESE PROCEEDINGS BECAUSE EMPLOYEES
THAT IT REPRESENTS MAY BE AFFECTED BY FUTURE PRO
CEEDINGS THAT IT IS ANTICIPATED WILL RESULT FROM CER
TAIN ORGANIZATIONAL RESTRUCTURING THAT WILL OCCUR
BY VIRTUE OF ARRANGEMENTS BETWEEN CN AND CP. IN
THOSE FUTURE PROCEEDINGS YOUR CLIENT UNDOUBTEDLY
WILL HAVE A LEGITIMATE INTEREST. THE TRADE UNION
THAT WILL REPRESENT THE EMPLOYEES OF THE EMPLOYER
IN THIS CASE WILL ALSO HAVE AN INTEREST. IN THE PRO
CEEDINGS IN THIS FILE, THE BOARD WILL DETERMINE
WHICH TRADE UNION THAT WILL BE.
On May 28, 1980, after the results of the vote
had been known, the Board issued reasons for
3 143. (1) Where, by reason of a merger or amalgamation of
trade unions or a transfer of jurisdiction among trade unions, a
trade union succeeds another trade union that, at the time of
the merger, amalgamation or transfer of jurisdiction, is a
bargaining agent, the successor shall be deemed to have
acquired the rights, privileges and duties of its predecessor,
whether under a collective agreement or otherwise.
(2) Where, upon a merger or amalgamation of trade unions
or a transfer of jurisdiction among trade unions, any question
arises concerning the rights, privileges and duties of a trade
union under this Part or under a collective agreement in respect
of a bargaining unit or an employee therein, the Board on
application to it by a trade union affected, shall determine what
rights, privileges and duties have been acquired or are retained.
(3) Before determining, pursuant to subsection (2), what
rights, privileges and duties of a trade union have been acquired
or are retained, the Board may make such inquiry or direct that
such representation votes be taken as it considers necessary.
decision finding that there had been a transfer of
jurisdiction from the CBRT to the CACAW and
that, as a consequence, the CACAW, being
deemed by subsection 143 (1) to have acquired the
rights and duties of its predecessor, including its
bargaining rights, was substituted for the CBRT
as a party to the collective agreement.
On June 6, 1980, the Board issued a formal
decision ordering that the CACAW be the bar
gaining agent for the bargaining unit of CN Tele
communications employees formerly represented
by the CBRT. This is the decision against which
this section 28 application is directed.
The applicant attacks the decision of the Board
on two grounds: excess of jurisdiction and violation
of natural justice. Before considering them, how
ever, a preliminary question must be resolved.
Under subsection 28(2) of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, a section 28
application "may be made by the Attorney Gener
al of Canada or any party directly affected by the
decision or order". In order to succeed, therefore,
the applicant must be "directly affected" by the
decision under attack. Is it so affected?
The decision of the Board substituted the
CACAW for the CBRT as the bargaining agent
for the unit of the CN Telecommunications
employees. The applicant is the certified bargain
ing agent of another group of employees, the CP
Telecommunications employees. How can it be
directly affected by that decision? The applicant
answers that question by referring to the partner
ship agreement entered into by Canadian National
Railway Company and Canadian Pacific Limited,
the full effect of which must be appreciated in the
light of section 144 of the Code which reads in
part as follows:
144. (1) In this section,
"business" means any federal work, undertaking or business
and any part thereof;
"sell", in relation to a business, includes the lease, transfer and
other disposition of the business.
(2) Subject to subsection (3), where an employer sells his
business,
(a) a trade union that is the bargaining agent for the
employees employed in the business continues to be their
bargaining agent;
(3) Where an employer sells his business, and his employees
are intermingled with employees of the employer to whom the
business is sold,
(a) the Board may, on application to it by any trade union
affected,
(i) determine whether the employees affected constitute
one or more units appropriate for collective bargaining,
(ii) determine which trade union shall be the bargaining
agent for the employees in each such unit, and
(iii) amend, to the extent the Board considers necessary,
any certificate issued to a trade union or the description of
a bargaining unit contained in any collective agreement;
When the partnership between Canadian Na
tional Railway Company and Canadian Pacific
Limited came into being, each one of these compa
nies disposed in favour of the other of an undivided
part of its telecommunication business and, as a
result, the employees of the two companies became
intermingled. Any trade union affected by the
creation of the partnership could therefore apply
to the Board under subsection 144(3) in order to
be recognized as the bargaining agent of all the
employees of the partnership. The applicant clear
ly had that right and so had the CBRT. The
Board, in finding that the CACAW had succeeded
the CBRT, in effect permitted the CACAW to
make, in place of the CBRT, an application to the
Board under subsection 144(3). The applicant
apparently entertained friendly relations with the
CBRT. Moreover, that Union had the support of
few employees of the partnership. If the CBRT
had continued to be the certified bargaining agent
of the CN employees, it would not have threatened
the existence of the applicant since, in all likeli
hood, it would never have applied to the Board
under subsection 144(3). Now that, by virtue of
the Board's decision, the CACAW has taken the
place of the CBRT, the situation is different since
the CACAW enjoys the support of many
employees and wishes to eliminate the applicant.
Those are, expressed as clearly as I can, the rea
sons why the applicant contends to be directly
affected by the decision under attack.
While the decision under attack clearly affects
the rights and obligations of the CBRT and the
CACAW, it affects the applicant in an entirely
different manner. More precisely, the applicant is
affected in two ways: the decision strengthens the
position of the CACAW in the eyes of the
employees and gives that Union a status enabling
it to initiate proceedings under subsection 144(3)
which may, eventually, lead to the applicant's
decertification. Can the applicant be said, in those
circumstances, to be directly affected? I do not
think so. In my opinion, the applicant is only
affected indirectly by that decision which merely
creates a situation that may, eventually, affect the
applicant.
I am therefore of opinion that the applicant does
not have the locus standi required to bring a
section 28 application. For that reason, I would
dismiss the application.
* * *
LALANDE D.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the section 28 applica
tion should be dismissed on the ground that the
applicant lacks standing.
To have standing to bring a section 28 applica
tion a person other than the Attorney General
must, in the words of subsection 28(2) of the
Federal Court Act, be a "party directly affected
by the decision or order" that is attacked. There
would appear to be two requirements: the appli
cant must be a "party" within the meaning of the
subsection and must be one directly affected by
the decision.
From the context of subsection 28(2) as a whole
(see the words "within ten days of the time the
decision or order was first communicated ... to
that party by the board, commission or other
tribunal") I conclude that the word "party" is used
in the technical sense of a party to the proceedings
before the tribunal whose decision is attacked. Cf.
Administrator under the Anti-Inflation Act v.
Ontario Secondary School Teachers' Federation,
District 34 [1978] 2 F.C. 202, where the Court
appears to have assumed this view of the meaning
of "party". But in my opinion a broad view should
be taken of the word "party" where it can be
shown that the applicant was directly affected by
the decision. In such a case it must be sufficient
that the applicant sought to be a party or, indeed,
was a person who should have been offered the
opportunity to be a party. For purposes of the
present case, therefore, I would assume that the
applicant was a party within the meaning of sub
section 28(2) by virtue of having sought to inter
vene to raise the question of jurisdiction which it
invokes in its section 28 application, although the
Board refused to grant it intervenor status on the
ground that it did not represent employees of
Canadian National Railway Company (CN),
which was being treated as the employer in the
proceedings pending before the Board. This view is
not in conflict with the provisions of the Canada
Labour Relations Board Regulations, 1978,
SOR/78-499 which, in section 2, define "party" as
"a person who has filed an application, a reply or
an intervention with the Board," and in section 17
provide: "On receipt of an intervention filed pursu
ant to section 16, the Board shall, where it is of the
opinion that the intervention would be in further
ance of the purposes and intent of the Code or its
administration, accept the intervention."
The difficulty, as the reasons of my brother
Pratte indicate, is to determine whether in the very
special circumstances of this case the applicant
should be considered to have been directly affected
by the decision of the Board on June 6, 1980 which
recognized the Canadian Association of Communi
cations and Allied Workers (CACAW) as the
successor, by virtue of a transfer of jurisdiction
among unions within the meaning of section 143 of
the Canada Labour Code, of the Canadian Broth
erhood of Railway, Transport and General Work
ers (CBRT & GW) as bargaining agent for the
unit of telecommunications employees covered by
the existing collective agreement between CBRT
& GW and CN. What this involves in my opinion
is a determination whether that decision directly
affected an interest which the Court should recog
nize as sufficient for standing. The recognition of
standing, at least where the interest on which it
rests cannot be clearly defined in terms of legal
right or obligation, is a matter of judicial discre
tion: Thorson v. Attorney General of Canada
[1975] 1 S.C.R. 138; The Nova Scotia Board of
Censors v. McNeil [1976] 2 S.C.R. 265; Thio,
Locus Standi and Judicial Review, 1971, pages
236-238; Davis, Administrative Law Treatise,
1978 Supplement, page 169.
It is clear that the decision did not affect the
legal rights of the applicant as a bargaining agent,
whether the employees whom it represented at the
time of the decision be regarded as the employees
of Canadian Pacific Limited (CP) or as the
employees of the CN-CP telecommunications
partnership which took effect as of January 1,
1980. In so far as the status of these employees
may be relevant to the question of standing, I am
of the view that the meaning to be given to clauses
12 and 13 of the partnership agreement, which was
signed on March 13, 1980, is that while the
employees engaged in the operations of the part
nership would from January 1, 1980 be under the
direction of the management of the partnership,
they would continue until January 1, 1981 to be
considered to be the employees of CN or CP, as
the case may be, which were to be responsible for
such matters as payroll and employee benefits
(subject to reimbursement by the partnership),
and to have "full control over the terms of employ
ment and hiring and firing of such employees."
Clause 13 clearly provides that it is as of January
1, 1981 that the employees of the parties engaged
in the operations of the partnership are to be
employees of the partnership. The Board's decision
did not create or affect any right to represent the
employees of the CN-CP telecommunications
partnership as such. It did not recognize a new
bargaining unit consisting of such employees. It
simply substituted CACAW for CBRT & GW as
bargaining agent for the unit of employees in the
Telecommunications Department of CN covered
by the existing collective agreement between
CBRT & GW and CN.
The interest which the applicant asserts in the
present case as the basis of standing may be
described as the maintenance of an existing com
petitive relationship because of its implications for
subsequent successor proceedings, pursuant to sec
tion 144 of the Code, to determine the right to
represent employees of the CN-CP telecommuni
cations partnership. That interest was described in
the applicant's intervention, or application to inter
vene, in the proceedings before the Board as
follows:
The intervenor is concerned that the proceedings currently
under way may be used as a stepping stone to invoke the
provisions of subsection 144(3) of the Canada Labour Code so
as to deprive the intervenor and the employees it represents of
their rights and privileges pursuant to existing collective agree
ments. Therefore, it has a legitimate interest in ensuring that
certification is not issued to an unstable organization which has
not complied with the requirements of the Code and does not
truly represent employees for which it seeks to obtain bargain
ing rights or that the representation vote conducted by the
Board is not otherwise vitiated by other irregularities.
What was involved was more concretely and
vividly reflected in the following passage from the
minutes of a meeting of the Canadian Telecom
munications Division of CBRT & GW ("the Divi
sion") held on September 25, 1979:
The C.B.R.T. & G.W. have made it plain that when the two
Companies merge, which is presently scheduled for January 1st
1980, the C.B.R.T. & G.W. will not apply to be declared the
"Successor Union", and furthermore, they will not interfere if
the C.P. Union, (United Telegraph Workers), makes an
application for successor rights. We would therefore be in great
danger of being absorbed by the C.P. Union, even though our
members outnumber theirs two to one.
The applicant had an interest in the mainte
nance of that situation, and the injury to that
interest caused by the Board's decision was that it
substituted a union 'which may be presumed to
have intended to seek successor rights under sec
tion 144 of the Code for one that presumably did
not.
It has been suggested that the courts should be
more ready to recognize an adverse effect on a
competitive position as sufficient for standing, par
ticularly in the light of the decision of the Supreme
Court of the United States in Association of Data
Processing Service Organizations, Inc. v. Camp
397 U.S. 150: Evans, Janisch, Mullan and Risk,
Administrative Law Cases, Text, and Materials,
1980, page 906. But the courts must consider
whether the particular competitive position or
advantage is entitled to protection. The recognition
and maintenance of the competitive position or
advantage of the applicant in the present case
would involve the denial of the right of the
employees in the Division to continuity of willing
and effective representation pending determination
of the right to represent employees of the CN-CP
telecommunications partnership, as such. That
cannot in my opinion be an interest the protection
of which is contemplated by the Code, and should
not, therefore, be regarded as sufficient for stand
ing to challenge the Board's decision to recognize
CACAW as the successor of CBRT & GW within
the meaning of section 143.
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.