A-700-80
International Longshoremen's and Warehouse-
men's Union, Local 502 (Applicant)
v.
Terrance John Matus and Canada Labour Rela
tions Board (Respondents) *
[No. 2]
Court of Appeal, Pratte, Urie JJ. and Verchere
D.J.—Vancouver, October 9 and November 10;
Ottawa, November 24, 1981.
Judicial review — Labour relations — Expulsion of union
member for joining a second union — Union permitting some
members to join other unions — Canada Labour Relations
Board finding union to have breached Code provisions prohib
iting discrimination — Reinstatement and compensation
ordered — Board denying Union's appeal and making finding
that Union had breached an additional Code provision —
Whether s. 185(e),(f) and (h) of Labour Code ultra vires
Parliament — Whether federal undertaking vitally affected by
Union's actions — Whether Board exceeded jurisdiction —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 110(1), 122(1),
185(e),(1),(h) — The British North America Act, 1867, 30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], s. 91.
This application to set aside a decision of the Canada Labour
Relations Board was heard, on consent, with the application to
set aside a previous decision of the Board [Court No. A-36-81,
page 549 supra]. The facts and issues relating to both applica
tions are the same and are summarized in the headnote to the
prior application.
Held, the application is dismissed.
Per Pratte J. (Verchere D.J. concurring): Counsel were
mistaken in assuming that the Board had modified its initial
decision. It did not vary the terms of that decision. The Board's
final decision was nothing more than a rejection of the Union's
review application. Under subsection 122(1) of the Code, this
Court could set aside the decision of a federal tribunal only if
natural justice had been disregarded or if there had been an
excess of jurisdiction or refusal to exercise same. The Board
had merely exercised its jurisdiction and there was no sugges
tion that the requirements of natural justice had been breached.
Per Urie J.: The Board dismissed the review application and,
as it was entitled to do, varied its earlier decision. Parliament
was competent to legislate in respect of all integral aspects of
* As the reasons for judgment in this case and the preceding
case differ, notwithstanding that the facts and issues are the
same, both sets of reasons have been published in their
entirety—Ed.
undertakings within its exclusive authority even if property or
civil rights may be affected. Although, prima facie, a union's
internal affairs fall within provincial jurisdiction, the Board has
power to require that unions comply with the provisions of the
Code. The question was whether the Union's actions vitally
affected the federal undertaking. As was said by Laskin J.A.
(as he then was) in Papp v. Papp [1970] I O.R. 331 at p. 337,
the issue was not how far Parliament could trench on section 92
but to what extent property and civil rights were within the
scope of Parliament's paramount power. Since union member
ship was a pre-condition to employment in various federal
undertakings in the longshoring industry, internal union rules
affected the availability of workers and so affected the opera
tion of federal undertakings. Since it could not be said that the
Board's interpretation of paragraph 185(e) was so unreasonable
that it could not be rationally supported, its decision was not
open to review. Nor had the Board exceeded its jurisdiction in
granting the relief which it did to the union member.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation [1979] 2 S.C.R. 227,
applied. Papp v. Papp [1970] 1 O.R. 331, agreed with. In
re the Validity and Applicability of the Industrial Rela
tions and Disputes Investigation Act [1955] S.C.R. 529,
referred to. Orchard v. Tunney [1957] S.C.R. 436,
referred to. Commission du salaire minimum v. The Bell
Telephone Co. of Canada [1966] S.C.R. 767, referred to.
APPLICATION for judicial review.
COUNSEL:
M. D. Shortt for applicant.
I. G. Nathanson for respondent Terrance
John Matus.
J. Baigent for respondent Canada Labour
Relations Board.
W. B. Scarth, Q.C. for Attorney General of
Canada.
SOLICITORS:
Shortt & Company, Vancouver, for applicant.
Davis & Company, Vancouver, for respondent
Terrance John Matus.
Baigent & Jackson, Vancouver, for respond
ent Canada Labour Relations Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside a decision of
the Canada Labour Relations Board, dated Octo-
ber 7, 1980, rejecting an application by the appli
cant herein for the review and rescission of another
decision made by the Board on March 6, 1980. By
that other decision the Board had found that the
applicant had contravened paragraph 185(h) of
the Canada Labour Code, R.S.C. 1970, c. L-1,
when it had expelled the respondent Matus from
its membership and, on the basis of that finding,
had ordered that Mr. Matus be reinstated as a
member of the applicant and be compensated by
the applicant for the financial loss he had suffered
as a consequence of his illegal expulsion.
At the hearing of this section 28 application,
which was argued at the same time as the section
28 application brought by the applicant against
the decision of March 6, 1980, counsel assumed
that the decision under attack had, in effect, modi
fied the decision of March 6, 1980. On the one
hand, counsel for the applicant referred to a pas
sage of the decision under attack where the Board,
according to his interpretation, acknowledged that
it had committed an error when it had said, in its
decision of March 6, 1980, that the conduct of the
applicant contravened section 110 of the Code;
counsel assumed that the Board had thus corrected
its previous decision. On the other hand, counsel
for the respondent Matus and counsel for the
Board referred to another passage of the decision
under attack where, according to their interpreta
tion, the Board expressed the view that the appli
cant, in expelling the respondent Matus, had
violated paragraph 185(e) of the Code; counsel
assumed that the Board had thus modified its
previous decision which contained the finding that
the applicant had violated paragraph 185(h) by
adding to it the finding that the applicant had also
contravened paragraph 185(e). Both these assump
tions are, in my view, erroneous. The decision
under attack is a decision which disposed of an
application made by the applicant herein that the
decision of March 6 be rescinded. The Board
rejected that application. Reference must be made
to the last paragraph of the decision under attack.
In the first sentence of that paragraph, the Board
made this assessment of its previous decision:
In keeping with the Preamble and spirit of the Code, the
Board has addressed a problem and has remedied a mischief
sought to be remedied by the Code.
The Board then concluded:
We have thoroughly reviewed the case and see no compelling
reason to alter the conclusions and remedy as expressed in
decision no. 211. The application for review is dismissed.
The reasons given by the Board in the ten pages
preceding that concluding paragraph were merely
reasons given in support of its decision to dismiss
the application for review and rescission; those
reasons do not constitute a decision varying the
terms of the decision of March 6, 1980.
If the decision under attack is thus viewed as
being merely a decision rejecting an application
for review and rescission, it is clear that this
section 28 application must be rejected. Under
subsection 122(1) of the Canada Labour Code, the
only grounds on which the Court may set aside a
decision of the Board are those expressed in sub
section 28(1) of the Federal Court Act which
empowers the Court to set aside a decision of a
federal tribunal where the tribunal "failed to
observe a principle of natural justice or otherwise
acted beyond or refused to exercise its jurisdic
tion". It was not suggested that the Board failed to
observe a principle of natural justice. In rejecting
the application for review and rescission, the
Board merely exercised its jurisdiction.
For these reasons, I would dismiss the
application.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: Two section 28 applications have been
brought to review and set aside two decisions of
the Canada Labour Relations Board ("the
Board"). The first, (A-36-81), dated March 6,
1980 found that the applicant had violated para
graph 185(h) of the Canada Labour Code ("the
Code").' The second dated October 7, 1980 result
ed from an application for review brought by the
' R.S.C. 1970, c. L-1, Part V, as amended.
applicant herein pursuant to section 119 of the
Code. The Board dismissed the review application
and, as I read its decision notwithstanding some
contradictory language therein, it varied its earlier
decision, as it was entitled to do, by holding that
the applicant had also been in breach of paragraph
185(e) of the Code in that it had terminated the
employment of the respondent Matus in the long-
shoring industry for reasons other than failure to
pay union dues and assessments. It is the decision
of March 6, 1980 as varied by the October 7, 1980
decision that this application seeks to set aside.
The applicant (hereinafter sometimes referred
to as "Local 502") is a trade union within the
meaning of the Code. During all relevant times, it
has been a party to a collective agreement with the
British Columbia Maritime Employers Association
which is an agent for various employers in a given
geographical area, including the Port of New
Westminster.
The respondent Matus was a dues-paying
member of Local 502 from 1965 until he was
expelled therefrom in October 1977. He was not
part of a regular gang of longshoremen dispatched
through the Union hiring hall to any particular
employer. Rather, he was required to report to the
hall each day to be dispatched, on a day-to-day
basis, by the Union to various employers. During a
slow period of work at the Port of New Westmin-
ster he obtained work at a plant near his home
operated by a company called Rayonier. To do so
it was necessary that he become a dues-paying
member of the International Brotherhood of
Woodworkers of America, a provincially-certified
union. Meanwhile, he continued to pay his dues to
the applicant. Late in the summer of 1977, Matus
was charged by Local 502 with breaching section
5(b) of its Constitution and Rules of Order the
relevant part of which reads as follows:
Section 5. Obligations of Membership
The obligations of membership are as follows:
(b) Not to belong to any other Trade Unions.
After he exhausted all rights of appeal within
his Union's structure, Mr. Matus was expelled
from membership in Local 502 for the breach
notwithstanding that the evidence shows that the
applicant allows some members to do longshoring
work while being members of another trade union.
The effect of the expulsion was that he was pre
vented from working as a longshoreman. He then
filed a complaint with the Board pursuant to sec
tion 187 of the Code and following a hearing the
Board ruled that:
(a) The respondent Matus was an employee
within the meaning of the Code;
(b) Local 502 violated paragraph 185(h) of the
Code by expelling the respondent Matus; and
(c) Local 502 also violated paragraph 185(f) by
expelling Mr. Matus.
The Board ordered Local 502 to reinstate the
respondent Matus and to pay him compensation
pursuant to section 189 of the Code.
The applicant then sought from the Board
reconsideration of its decision as a result of which
the Board issued its decision of October 7, 1980.
The Board dismissed the application for review
and found, in addition to the conclusions set forth
above, that the applicant had been in breach of
paragraph 185(e) of the Code in effectively
making it impossible for Mr. Matus to obtain
employment in the longshoring industry for rea
sons other than failure to pay union dues and
assessments.
The relevant clauses of section 185 read as
follows:
185. No trade union and no person acting on behalf of a
trade union shall
(e) require an employer to terminate the employment of an
employee because he has been expelled or suspended from
membership in the trade union for a reason other than a
failure to pay the periodic dues, assessments and initiation
fees uniformly required to be paid by all members of the
trade union as a condition of acquiring or retaining member
ship in the trade union;
(f) expel or suspend an employee from membership in the
trade union or deny membership in the trade union to an
employee by applying to him in a discriminatory manner the
membership rules of the trade union;
(h) expel or suspend an employee from membership in the
trade union or take disciplinary action against or impose any
form of penalty on an employee by reason of his having
refused to perform an act that is contrary to this Part; ...
To understand the first of the two issues raised
by the applicant it is also necessary to have regard
to subsection 110(1) of the Code:
110. (1) Every employee is free to join the trade union of his
choice and to participate in its lawful activities.
Counsel for the applicant submitted that the two
issues in the appeal are:
(a) that the provisions of the Canada Labour
Code relied on by the Board, specifically para
graphs 185(e), CO and (h), are constitutionally
beyond the competence of the Parliament of
Canada to enact in that they purport to regulate
the internal rules of a trade union relating to
membership ("The Constitutional Issue"); and
(b) that if those paragraphs are intra vires, the
Board exceeded its jurisdiction under the Code
by finding that the applicant had breached sub
section 110(1) and paragraphs 185(e), (f) and
(h) of that Code and in granting the relief which
it did, purportedly pursuant to sections 121 and
189 ("The Interpretation Issue").
The Constitutional Issue
It is the applicant's contention that the Parlia
ment of Canada lacks jurisdiction under The Brit-
ish North America Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5], to
enact legislation which has the effect of regulating
the internal rules of a trade union governing mem
bership therein. In the view of counsel, Parliament
is empowered to regulate the relationship between
employers and employees in connection with the
operation of any federal work, undertaking or
business (section 108) only to the extent that such
regulation is necessary or vital to the operation of
such work, undertaking or business. If it is not, he
said, the relationship is governed in the normal
way by the provincial legislatures as a matter of
property rights or of contract within the respective
provinces.
It is beyond doubt since In re the Validity and
Applicability of the Industrial Relations and Dis-
putes Investigation Act, 2 that Parliament has
jurisdiction over undertakings which are within the
scope of section 91 of The British North America
Act, 1867. It is competent to legislate in respect of
all vital, essential or integral aspects of works and
undertakings within its exclusive authority, not
withstanding that property or civil rights may be
affected. For example, in Commission du salaire
minimum v. The Bell Telephone Company of
Canada, 3 Mr. Justice Martland stated on behalf of
the Court:
In my opinion all matters which are a vital part of the
operation of an interprovincial undertaking as a going concern
are matters which are subject to the exclusive legislative control
of the federal parliament within s. 91(29).
It is common ground in this case that the work
performed by the longshoremen in the Port of New
Westminster, including the respondent Matus, was
in a federal work or undertaking. It was also
recognized by counsel for each of the parties, as it
was recognized by the Board, that, prima facie, a
trade union's internal affairs in relation to its
members fall within the ambit of property or
contractual rights which are within the legislative
jurisdiction of the provinces and thus not within
the scope of authority of the Canada Labour Code,
and it follows, of the Canada Labour Relations
Board. But it is equally clear, it seems to me, that
if in a trade union's relationship with its members
it violates specific provisions of the Code, the
Board has, within the scope of its authority, the
right to require the union to comply with such
provisions and to restore employees affected by
such violations to the status they held prior to the
breaches. It is because the Board was of the view
that Local 502 was in breach of at least para
graphs (e), (J) and (h) of section 185 that it
reached the decision which is sought to be set aside
in these proceedings. To determine whether it was
empowered to make such a decision, on the basis
of the jurisprudence, it must be decided whether
the applicant's actions vitally affected the federal
undertaking. Put another way, what is required is
a determination of the limits of Parliament's juris
diction in this case.
2 [1955] S.C.R. 529.
3 [1966] S.C.R. 767 at p. 772.
In Papp v. Papp 4 , Laskin J.A. (as he then was),
in the Ontario Court of Appeal, enunciated a
useful test for making that determination. The
issue in the case was whether Parliament could
regulate custody of children in divorce proceedings
pursuant to its jurisdiction over "marriage and
divorce". The test he formulated follows:
Where there is admitted competence, as there is here, to
legislate to a certain point, the question of limits (where that
point is passed) is best answered by asking whether there is a
rational, functional connection between what is admittedly
good and what is challenged.
At page 337 of the report, Mr. Justice Laskin
made this additional observation:
Nowhere in the provincial catalogue of powers under the
B.N.A. Act is there any mention of custody or indeed, of
children; and when considering what has been called the
scheme of total distribution of legislative power effected by the
Act (see Murphy v. C.P.R. Co. and A.-G. Can., [1958] S.C.R.
626 at p. 643, 15 D.L.R. (2d) 145 at pp. 153-4, 77 C.R.T.C.
322) we confront again the familiar issue of assessing the scope
of such an enumerated federal power as "marriage and
divorce" against the broadly phrased provincial power in rela
tion to "property and civil rights in the province". To adapt to
the present case what Rand, J., said in A.-G. Can. v. C.P.R.
and C.N.R., [1958] S.C.R. 285 at p. 290, 12 D.L.R. (2d) 625
at p. 628, 76 C.R.T.C. 241, that since "powers in relation to
matters normally within the provincial field, especially of prop
erty and civil rights, are inseparable from a number of the
specific heads of s. 91 ... under which scarcely a step could be
taken that did not involve them", hence, in such a case "the
question is primarily not how far Parliament can trench on s.
92 but rather to what extent property and civil rights are within
the scope of the paramount power of Parliament [in relation to
marriage and divorce]". [Emphasis added.]
The facts in this case must be borne in mind in
applying the foregoing test. The Board ruled that
the applicant contravened sections 110 and 185 of
the Code, supra, by expelling the respondent
Matus from membership because of his concurrent
membership in another trade union. Membership
is a pre-condition to employment in various federal
undertakings in the longshoring industry as it was
in this case. Employees are not hired directly by
employers in this industry but, rather, are supplied
to those employers through the union hiring hall.
4 [1970] 1 O.R. 331 at pp. 335-336.
The effect of expelling Mr. Matus from member
ship in Local 502 was that he could not be
employed in the longshoring industry.
It is clear to me, then, that the rational, func
tional connection between the regulation of
employer-employee relations in federal works and
undertakings and the internal rules of trade
unions, is the extent to which those internal rules
affect the availability of persons for employment
in such works or undertakings. Conceivably, a
union by the application of such rules, could, by
expulsion of some of its members for reasons such
as were advanced in this case, deprive a particular
employer of all or a substantial number of
employees to the detriment of the employer's fed
eral undertaking. If that is so, could it reasonably
be said that those rules do not plainly affect, in a
vital way, at least part of the operation of federal
works and undertakings? I think not. Therefore, in
their application they are, in my opinion, within
the competence of Parliament to regulate.
Support for this conclusion is found in the deci
sion of the Supreme Court of Canada in Orchard
v. Tunney 5 where Rand J. said in respect of a
situation where a union or closed shop agreement
existed:
. union membership secures to each member the right to
continue in that employment free from improper interference
on the part of the union or its officers. Membership is the
badge of admission and continuance and, vis-Ã -vis the employ
er, to remove the badge is directly and immediately to defeat
the right.
The right to union membership is conferred by
subsection 110(1) of the Code. Loss of that right,
in the context of the facts in this case, vitally
affects both the employee and the employer and,
thus, since the employment is in a federal work or
undertaking, action by the Board is empowered by
valid federal legislation.
Accordingly, the applicant must fail on the con
stitutional issue.
The Interpretation Issue
For the sake of convenience, I repeat the issue as
formulated by the applicant.
5 [1957] S.C.R. 436 at p. 446.
If the regulation of the internal rules of membership in a trade
union is within the legislative competence of Parliament, did
the Canada Labour Relations Board exceed its jurisdiction
under the Canada Labour Code by finding that the applicant
trade union had breached sections 110(1) and 185(h) of that
Act and further by granting the remedies pursuant to sections
189 and 121?
Each of the respondents contended that the
Board did not exceed its jurisdiction in this case
and that, therefore, its decisions are not reviewable
by this Court.
Section 122 of the Code provides the jurisdic
tional limits for this Court's review powers. Sec
tion 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.
Subsection 28 (1) of the Federal Court Act
empowers this Court to set aside a decision of a
federal tribunal where the tribunal "failed to
observe a principle of natural justice or otherwise
acted beyond or refused to exercise its jurisdic
tion." It was urged upon us that the applicant's
allegation of error is not in substance an allegation
that the Board exceeded or refused to exercise its
jurisdiction but is, in reality, an error in interpret
ing provisions of the Code and is, thus, not subject
to review by this Court.
I agree with this submission.
In Canadian Union of Public Employees Local
963 v. New Brunswick Liquor Corporation 6 the
Supreme Court of Canada, speaking through
Dickson J., has this to say at page 233 about
supervising courts seeking to use alleged jurisdic
tional error to enable them to review decisions of
labour relations boards:
The question of what is and is not jurisdictional is often very
difficult to determine. The courts, in my view, should not be
alert to brand as jurisdictional, and therefore subject to broader
curial review, that which may be doubtfully so.
6 [1979] 2 S.C.R. 227.
Mr. Justice Dickson expanded on this view in
the following passage from his reasons at pages
235-236:
The rationale for protection of a labour board's decisions within
jurisdiction is straightforward and compelling. The labour
board is a specialized tribunal which administers a comprehen
sive statute regulating labour relations. In the administration of
that regime, a board is called upon not only to find facts and
decide questions of law, but also to exercise its understanding of
the body of jurisprudence that has developed around the collec
tive bargaining system, as understood in Canada, and its labour
relations sense acquired from accumulated experience in the
area.
He then propounded a test for use by the courts
in reviewing the decisions of boards such as the
Canada Labour Relations Board, which is found at
page 237 of the report:
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?
The Board's decision in this application dis
missed the application for review of its March 6,
1980 decision and, as well, appears to me to have
varied that decision by holding that:
In its attempt to provide some standard of protection for
persons employed in industries where union membership is a
prerequisite for employment, Parliament enacted section
185(e). 7
Because of the uniqueness of the longshoring industry, the
union has, by expelling Matus from membership for contraven
ing a discriminatory provision in its constitution, accomplished
what is prohibited by the Code elsewhere. Matus's employment
in the industry has been terminated for reasons other than the
failure to pay periodic dues, assessments and initiation fees
uniformly required to be paid by all members.
I am quite unable to say that the Board's inter
pretation of paragraph 185(e) in the circumstances
hereinbefore referred to, is so patently unreason
able that it cannot be rationally supported. That
being so the Board did not exceed its jurisdiction
and its decision is, therefore, not reviewable by this
Court. It is thus unnecessary for us to consider the
correctness of the interpretation of paragraphs
185(h) and (f) given in the March 6, 1980
decision.
7 See supra, p. 563.
I am equally unable to conclude that the Board
erred in construing its powers to grant relief under
section 189 of the Code so that again it cannot be
said that it exceeded its jurisdiction in granting the
relief which it did to Mr. Matus.
Accordingly, for all of the foregoing reasons, I
would dismiss the section 28 application.
* * *
The following are the reasons for judgment
rendered in English by
VERCHERE D.J.: For the reasons given by Pratte
J., with which I respectfully agree, I would dismiss
this application.
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.