A-973-87
Nova Scotia Nurses Union, DEVCO Local
("NSNU") (Applicant)
v.
Canada Labour Relations Board ("CLRB")
(Respondent)
and
Cape Breton Development Corporation ("DEV-
CO") (Respondent)
and
Canadian Union of Public Employees, Locals
1476 and 2046 ("CUPS") (Respondent)
and
Canadian Brotherhood of Railway, Transport and
General Workers, Locals 504, 509 and 510
("CBRT-GW") (Respondents)
and
International Association of Machinists and Aero
space Workers ("IAM") (Respondent)
and
United Transportation Union Enginemen and
Trainmen ("UTU") (Respondent)
and
United Mine Workers of America, District No. 26
and Sectionmen (Respondent)
and
Rail Canada Traffic Controllers ("ROTC")
(Respondent)
INDEXED AS: NOVA SCOTIA NURSES UNION, DEVCO LOCAL
v. CANADA (LABOUR RELATIONS BOARD) (C.A.)
Court of Appeal, Heald, Marceau and MacGuigan
JJ.A.—Halifax, March 15; Ottawa, March 23,
1989. *
* Editor's Note: The reasons for judgment herein were
received from the Court on November 6, 1990.
Labour relations — Revocation of certification — NSNU
certified as agent for bargaining unit of registered nurses
employed by DEVCO — 12 nurses out of 3,400 employees,
at 5 locations — Board finding inappropriate to have such
small, scattered unit — Board deciding unnecessary to answer
question as to professional status of nurses — No error in law
or, if any, not so patently unreasonable as to warrant judicial
review.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Decertification of
NSNU as bargaining agent for registered nurses employed by
DEVCO not in violation of nurses' freedom of association
Right to belong to specific bargaining unit dependent upon
status of right to collective bargaining — Right to bargain
collectively not guaranteed by Charter, s. 2(d).
Constitutional law — Charter of Rights — Equality rights
— NSNU certified as agent for bargaining unit of registered
nurses employed by DEVCO — 12 nurses out of 3,400
employees, at 5 locations — Board revoking certification on
ground inappropriate to have such small, scattered unit — No
violation of equality rights as no discrimination in relation to
personal characteristics and no disadvantages nor loss of
advantages in comparison with other groups.
The Nova Scotia Nurses Union, DEVCO Local (NSNU)
had been certified for a bargaining unit composed of twelve
registered nurses employed by the respondent DEVCO. In a
decision dated September 30, 1987, the Canada Labour Rela
tions Board directed the revocation of that certification and the
integration of these nurses into a bargaining unit with the
supervisory group of CUPE. The Board found that a twelve-
person bargaining unit scattered across the employer's opera
tion was inappropiate for collective bargaining in an industrial
milieu of 3,400 employees. It declined to answer the question
raised by the NSNU as to the "professional employee" status
of Registered Nurses under the Canada Labour Code. This was
a section 28 application to review and set aside that decision on
the grounds that it was a violation of the nurses' freedom of
association and equality rights guaranteed by the Charter. It
was also argued that the Board had declined to exercise its
jurisdiction by refusing to make a decision as to professional
status and by making a finding of inappropriateness based
solely on the numerical size of the unit.
Held, the application should be dismissed.
Per MacGuigan J.A.: The Board had not declined to exercise
its jurisdiction. The finding of inappropriateness was not based
solely on numbers: the Board saw the numbers as so dispropor
tionate as to amount to a qualitative rather than just a quan
titative difference. It also thought it relevant that the twelve
nurses were scattered throughout five locations, with no more
than three at any location. The finding was within the Board's
discretion and even if it was an error in law, it was not so
patently unreasonable as to be open to judicial review.
The Board was entitled to decide that it was unnecessary for
it to determine the professional employee status of registered
nurses under the Code once it had found that, in any event, the
unit was inappropriate for collective bargaining.
The applicant's argument, that by depriving the nurses of
their own bargaining unit the Board had infringed their free
dom of association, was without merit. The right to belong to a
specific bargaining unit was dependent upon the status of the
right to collective bargaining. However, it has been decided by
this Court (in Public Service Alliance of Canada v. The Queen,
[1984] 2 F.C. 889, affirmed by the Supreme Court of Canada
with three of the six judges taking the same view of the law as
did this Court), that the right to bargain collectively was not
guaranteed by paragraph 2(d) of the Charter. This Court
accordingly remains bound by its own earlier decision.
The applicant's equality rights were not violated. The nursing
employees suffered no discrimination in relation to their per
sonal characteristics and had neither disadvantages nor loss of
advantages in comparison with other groups. Since the Board
had not based its decision on numbers only, the argument that
the nurses had been discriminated against on that basis is
rejected.
Per Marceau J.A.: There was no merit to the argument that
by declining to make a definite ruling as to the professional
status of the nurses, the Board in effect refused to exercise its
jurisdiction. Once it had determined that the nurses could not
form an appropriate unit, the issue of professional status had
become purely academic.
Neither the freedom of association of employees in the
situation of the nurses here, nor their right of equality before
the law could in any way be infringed by a legal and bona fide
application by the Board of paragraph 125(3)(a) of the Code.
In any event, this Court has previously held that recourse to a
section 28 application cannot be had to attack the constitution
ality of the provisions of law the tribunal whose decision is
under review is called upon to apply. The reason is that this
Court has not been given the power to make a declaration of
unconstitutionality or inoperativeness in disposing of an
application for judicial review.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118 (as
am. by S.C. 1972, c. 18, s. 1), 119 (as am. idem), 122
(as am. by S.C. 1972, c. 18, s. 1; 1977-78, c. 27, s. 43),
125 (as am. by S.C. 1972, c. 18, s. 1) (1),(2),(3)(a).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(d), 15(1).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Industrial Relations and Disputes Investigation Act,
R.S.C. 1952, c. 152.
CASES JUDICIALLY CONSIDERED
AFFIRMED:
Cape Breton Development Corporation and United Mine
Workers of America, District No. 26, et al. (1987), 72 di
73; 80 CLLC 14,020 (CLRB).
FOLLOWED:
Public Service Alliance of Canada v. The Queen, [1984]
2 F.C. 889; (1984), 11 D.L.R. (4th) 387; 84 CLLC
10,054; 11 C.R.R. 97; 55 N.R. 285 (C.A.); affd [1987] 1
S.C.R. 424; (1987), 38 D.L.R. (4th) 249; 87 CLLC
14,022; 32 C.R.R. 114; [1987] D.L.Q. 230; 75 N.R. 161.
APPLIED:
Syndicat des employes de production du Quebec et de
l'Acadie v. Canada Labour Relations Board, [1984] 2
S.C.R. 412; 14 D.L.R. (4th) 457; (1984), 55 N.R. 321;
14 Admin. L.R. 72; 84 CLLC 14,069; Reference Re
Public Service Employee Relations Act (Alta.), [1987] 1
S.C.R. 313; (1987), 78 A.R. 1; 38 D.L.R. (4th) 161;
[1987] 3 W.W.R. 577; 51 Alta. L.R. (2d) 97; 87 CLLC
14,021; [1987] D.L.Q. 225; 74 N.R. 99; Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143;
(1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34
B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255.
REFERRED TO:
Assoc. of Engineers of Bell Canada v. Bell Canada
(1976), 76 CLLC 469; [1976] 1 Can. L.R.R.B. 345;
Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714;
(1987), 46 D.L.R. (4th) 165; 82 N.R. 352 (C.A.);
Canada (Attorney General) v. Sirois (1988), 90 N.R. 39
(F.C.A.).
COUNSEL:
Susan D. Coen for applicant.
Diane Pothier for Canada Labour Relations
Board.
Brian G. Johnston for Cape Breton Develop
ment Corp.
SOLICITORS:
Goldberg, MacDonald, Halifax, for applicant.
Patterson Kitz, Truro, Nova Scotia, for
Canada Labour Relations Board.
McInnes Cooper & Robertson, Halifax, for
Cape Breton Development Corp.
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: I readily agree with my brother
MacGuigan that this section 28 application cannot
succeed.
First, I think, as he does, that there is no merit
in the contention that, by declining to make a
definite ruling as to the professional status of the
nurses, the Board would have acted contrary to the
directions of paragraph 125(3)(a) of its enabling
statute and in a manner which amounted to a
refusal to exercise its jurisdiction.' Once the Board
had established that the 12 nurse employees, scat
tered throughout five locations, could not, in any
event, form an appropriate bargaining unit, this
issue of professional status had become purely
academic and of no consequence. A pronounce
ment on it was completely useless.
Second, I see no merit either in the alternative
Charter [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] argument.
As I understand this argument, it is to the effect
that, even assuming that the Board has acted in
accordance with the "unless clause" in the second
part of paragraph 125(3)(a) of the Code, its deci
sion would nevertheless be without foundation,
because that special clause would have to be
declared inoperative as being in violation of para-
' 1 repeat for convenience paragraph 125(3)(a) of the
Canada Labour Code [R.S.C. 1970, c. L-1 (as am. by S.C.
1972, c. 18, s. 1)]:
125. ...
(3) Where a trade union applies under section 124 for
certification as the bargaining agent for a unit comprised of
or including professional employees, the Board, subject to
subsection (2),
(a) shall determine that the unit appropriate for collective
bargaining is a unit comprised of only professional
employees, unless such a unit would not otherwise be
appropriate for collective bargaining;
graph 2(d) and subsection 15(1) of the Charter. 2
If the argument were relevant, I would have, as
indicated by my colleague, to remain consistent
with the decision of this Court in Public Service
Alliance of Canada v. The Queen, [1984] 2 F.C.
889. My opinion is definitely that neither the
freedom of association of employees in the situa
tion of the nurses here, nor their right of equality
before the law, can in any way be infringed by a
legal and bona fide application by the Board of
paragraph 125(3)(a) of the Code as it now stands.
But, in any event, I do not think that, in the
present application, an argument to that effect was
available to the applicant. This Court has in vari
ous cases taken the position that the particular
nature of the recourse given by section 28 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] did not allow for an attack on the constitution
ality of the provisions of law the tribunal whose
decision is under review is called upon to apply,
the reason being that this Court has not been given
the power to make a declaration of unconstitution-
ality or inoperativeness in disposing of such a
recourse. (See Canada (Attorney General) v.
Sirois (1988), 90 N.R. 39 (F.C.A.) and Canada
(Attorney General) v. Vincer, [1988] 1 F.C. 714
(C.A.)).
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This section 28 application
is taken against a decision of the Canada Labour
Relations Board ("CLRB" or "Board") [Cape
Breton Development Corporation and United
Mine Workers of America, District No. 26, et al.
(1987), 72 di 73] dated September 30, 1987, with
reasons dated November 27, 1987, by which the
Board directed the revocation of the applicant's
existing certification as bargaining agent for a
bargaining unit composed of twelve registered
nurses employed by the respondent DEVCO and
2 The applicant Union, in its written representations, does not
openly seek a declaration. But it clarified its position in that
respect during the hearing. Obviously, since, at this point of the
argument, it was assumed that the Board had acted in strict
conformity with the applicable provision of its enabling statute,
its decision could not be set aside on the basis of the Charter
without a finding that the provision on which it was founded
was inoperative.
the integration of these nurses into a bargaining
unit with the supervisory group of the respondent
CUPS.
The applicant contended that the Board's denial
to the nurses of certification as professional
employees under subsection 125(3) of the Canada
Labour Code ("Code") is a violation of the nurses'
freedom of association guaranteed by paragraph
2(d) of the Canadian Charter of Rights and Free
doms and of their right of equality guaranteed by
subsection 15(1) of the Charter.
The CLRB has the power under section 119 [as
am. by S.C. 1972, c. 18, s. 1] of the Code to
"review, rescind, amend, alter or vary" its original
1977 certification. Its power to determine appro
priate bargaining units is found in sections 118 [as
am. idem] and 125 of the Code, the relevant parts
of which are as follows:
118. The Board has, in relation to any proceeding before it,
power
. • •
(p) to decide for all purposes of this Part any question that
may arise in the proceeding, including, without restricting the
generality of the foregoing, any question as to whether
. • .
(v) a group of employees is a unit appropriate for collec
tive bargaining,
• • •
125. (1) Where a trade union applies under section 124 for
certification as the bargaining agent for a unit that the trade
union considers appropriate for collective bargaining, the Board
shall determine the unit that, in the opinion of the Board, is
appropriate for collective bargaining.
(2) In determining whether a unit constitutes a unit that is
appropriate for collective bargaining, the Board may include
any employees in or exclude any employees from the unit
proposed by the trade union.
(3) Where a trade union applies under section 124 for
certification as the bargaining agent for a unit comprised of or
including professional employees, the Board, subject to subsec
tion (2),
(a) shall determine that the unit appropriate for collective
bargaining is a unit comprised of only professional
employees, unless such a unit would not otherwise be appro
priate for collective bargaining;
(b) may determine that professional employees of more than
one profession be included in the unit; and
(c) may determine that employees performing the functions,
but lacking the qualifications of a professional employee, be
included in the unit.
Under the predecessor legislation, the Industrial
Relations and Disputes Investigation Act [R.S.C.
1952, c. 152], all professionals were excluded from
the definition of employee, but with the new Part
V of the Code in 1972 (S.C. 1972, c. 18) the
exclusion of professionals was removed, and Par
liament enacted in paragraph 125(3)(a) what the
Board has called "a clear legislative preference for
units comprising only professional employees":
Assoc. of Engineers of Bell Canada v. Bell
Canada (1976), 76 CLLC 469, at page 473,
Professional employees are defined in section 107
[as am. by S.C. 1972, c. 18, s. 1] of the Code, but
nothing turns on that definition in the present case.
The heart of the CLRB decision in this case is
as follows, at pages 91-93:
After considering all of the information before it, the Board
released the following decision regarding the NSNU bargain
ing unit on September 30, 1987:
"The Nurses' unit is to be integrated with the supervisory
unit represented by CUPS. In making this determination, the
Board found that a unit comprising only twelve persons was
simply not appropriate in an industrial setting of some 3,000
employees. In arriving at this conclusion, the Board panel
declined to make a ruling as to whether Registered Nurses
are professional employees within the meaning of the Code,
as it found that this issue was academic in view of the
circumstances which prevail at Devco."
The reasons for this decision have more to do with appropriate
ness than with professional employee status under the Code.
Clearly, the Board has a discretion under section 125(3) to find
that a bargaining unit of professional employees is not, on its
own, appropriate for collective bargaining. Keeping in mind
that the purpose of this whole exercise was to rationalize all of
the bargaining unit structures at Devco's Coal Division, the
Board asked itself the obvious questions. Even if these twelve
nurses were found to be professional employees within the
meaning of the Code, are they in the circumstances before us,
appropriate for collective bargaining as a separate bargaining
unit?
Aside from the purported professional status, was there any
thing about this small group of employees that justified sepa
rate bargaining rights, separate right to strike, separate con
tract administration, and separate conditions of employment?
Since this review commenced in January 1987, eight other
bargaining units had lost their separate bargaining rights. Most
of those units had existed at Devco or its predecessors for many
years before the nurses unit came into existence in 1977. All of
those units were larger than the nurses unit and most of them,
like the nurses, could be identified by the specialized skills and
knowledge applied by the specific group of employees. Having
eliminated those separate bargaining units as no longer being
appropriate for collective bargaining in Devco's industrial set
ting, the Board searched to see if there was something to justify
the existence of this small nurses unit. The unanimous answer
of the Board was that there was nothing. Certainly, the empha
sis by the NSNU about the neutrality of the nurses and the
need for confidentiality did not convince us that the NSNU
was the only trade union that was capable of representing the
nurses at Devco. No matter how the Board viewed the situa
tion, the answer was that a 12-person bargaining unit, and
particularly one where the 12 members are scattered across the
employer's operations, is simply not appropriate for collective
bargaining in an industrial milieu of 3 400 employees.
For those reasons, the Board decided that it was unnecessary to
answer the question raised by the NSNU about the "profes-
sional employee" status of Registered Nurses under the Code.
Before leaving this topic though we would like to point out that
this panel of the Board agrees with Devco's submission about
Parliament's intentions when it enacted section 125(3). There
can be little doubt that Parliament was responding to the
pressures of the day in 1973 to extend collective bargaining
privileges to professional groups who were therefore excluded
from the Code. With that in mind, we concur with Devco's
submission that section 125(3) is an anomaly within the overall
scheme of the Code and that the Board should give this section
a restrictive interpretation to ensure that it is not used to
circumvent all of the established rules and criteria normally
applicable to the appropriateness of bargaining units. Before
extending the benefits of section 125(3), the Board must be
convinced that those seeking the advantages of the section are
truly professional employees within the meaning and intent of
the legislation and also that they are in fact practising their
profession at the given time.
Under section 122 [as am. by S.C. 1972, c. 18,
s. 1; 1977-78, c. 27, s. 43] of the Code decisions or
orders of the Board may be reviewed only in
accordance with paragraph 28(1)(a) of the Feder
al Court Act.
A preliminary issue arose as to whether the
Board declined jurisdiction by refusing to apply
paragraph 125(3)(a) of its statute. The applicant
argued that, on the basis of the "clear legislative
preference for units comprising only professional
employees" adopted by the Board in the Bell
Canada case, supra, the Board must first make a
decision as to professional status, which it failed to
do. Moreover, it urged that no finding of inappro-
priateness as a bargaining unit could be made
solely on the basis of the numerical size of the unit,
since that would be to employ a standard appropri-
ate under subsection 125(1) but not under subsec
tion 125(3).
As I read the CLRB decision, it did not purport
to find a separate bargaining unit inappropriate
solely because of numbers, and certainly not
because of "mere numbers". It seems to me that
the Board saw the numbers (12 in 3,400) as so
disproportionate as to be a qualitative rather than
just a quantitative difference. In addition, the
Board also thought it relevant that the twelve
nurses were scattered throughout five locations,
with no more than three at any location. To my
mind, moreover, even a decision in terms of mere
numbers would not be an error in law, because
there is no statutory requirement that the factors
considered under subsection 125(3) should be dif
ferent from those taken into account under subsec
tion 125(1). Both are left to the discretion of the
Board. Finally, even if the Board had committed
an error of law, such an error would appear to be
within the Board's jurisdiction and indeed close to
the very core of the Board's expertise. It would be
a "mere" error of law, not a "patently unreason
able" one that would be subject to judicial review:
Syndicat des employes de production du Quebec
et de l'Acadie v. Canada Labour Relations Board,
[1984] 2 S.C.R. 412.
In my view what the CLRB held was that it was
unnecessary for it to decide the professional
employee status of registered nurses under the
Code because the unit in question in this instance,
even if composed of professional employees, would
not otherwise be appropriate for collective bar
gaining. It is true that the Board muddied the
waters somewhat by its digression "Before leaving
this topic" and particularly by the sentence begin-
ing "Before extending the benefits of section
125(3)". However, I interpret "the benefits of
section 125(3)" as referring to the principal clause
in paragraph (a) of that subsection and not to the
whole of that paragraph. The Board was, I believe,
merely following the judicial tradition of "assum-
ing without deciding" with respect to professional
status. That it was entitled to do within its
jurisdiction.
Paragraph 2(d) of the Charter reads as follows:
2. Everyone has the following fundamental freedoms:
. . .
(d) freedom of association.
The applicant argued that this provision of the
Charter guarantees the freedom to join a union,
which is merely a particular "association group"
and to pursue the collective interests of its mem
bership. In the case at bar the nurses had previous
ly joined a union and formed a bargaining unit
approved by the CLRB, through which they suc
cessfully pursued their collective interests for a
decade: by depriving them of own bargaining unit,
the Board had infringed the freedom of the nurses
to associate with other nurses.
The leading cases on the freedom of association
in relation to labour relations are two Supreme
Court of Canada decisions announced on the same
day: Reference Re Public Service Employee Rela
tions Act (Alta.), [1987] 1 S.C.R. 313; and PSAC
v. Canada, [1987] 1 S.C.R. 424. In those cases
three of the six participating judges held that the
guarantee of freedom of association in paragraph
2(d) of the Charter does not include a guarantee
either of the right to bargain collectively or of the
right to strike, two judges held that it included
both guarantees, and the sixth held that it did not
include a guarantee of the right to strike (which
was all that was necessary for decision in those
cases) but left open the possibility that other
aspects of collective bargaining may be Charter-
protected. It would therefore appear that, on the
law as decided by the Supreme Court of Canada,
the issue in the case at bar is open.
However, the issue has already been decided in
this Court in Public Service Alliance of Canada v.
The Queen, [1984] 2 F.C. 889, the case from
which the appeal was taken to the Supreme Court
in its second decision above. In that case Mahoney
J.A. said, at page 895 F.C.:
I do not think it desirable to attempt to catalogue the rights and
immunities inherent in a trade union's guaranteed freedom of
association. Clearly, collective bargaining is, or should be, the
primary means by which organized labour expects to attain its
principal object: the economic betterment of its membership.
However fundamental, it remains a means and, as such, the
right to bargain collectively is not guaranteed by paragraph
2(d) of the Charter ....
Marceau J.A. in his concurring reasons took the
same point of view. Since the appeal from this
Court was dismissed by the Supreme Court, with
three of the six judges taking the same view of the
law as this Court, I believe I continue to be bound
by this Court's decision. The applicant's argument
on this question must therefore fail, since any right
to belong to specific bargaining units is dependent
upon the status of the right to collective bargaining
itself.
In the circumstances no issue arises as to section
1 in relation to the freedom of association.
The applicant further argued that the twelve
nursing employees were discriminated against in
violation of subsection 15(1) of the Charter, which
reads as follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The only authoritative interpretation of this sub
section is that in Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R. 143, in which
McIntyre J. on this point expressed the opinion of
a unanimous Supreme Court, at pages 174-175:
I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or disad
vantages on such individual or group not imposed upon others,
or which withholds or limits access to opportunities, benefits,
and advantages available to other members of society. Distinc
tions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so classed.
This test requires (1) a distinction based on
grounds relating to the personal characteristics of
the group (2) which has the effect of imposing
burdens, obligations, or disadvantages on the
group or limiting its access to opportunities, ben
efits and advantages available to other groups.
In the case at bar the nursing employees suf
fered from no discrimination in relation to their
personal characteristics and had neither disadvan
tages nor loss of advantages in comparison with
other groups. All professional groups are treated in
the same way under paragraph 125(3)(a) of the
Code, including being subject to the same "unless"
clause. This is thus, in McIntyre J.'s terminology,
a distinction based on the capacity of the group.
The applicant attempted to make much of the
alleged fact that the nurses have, merely because
of their numbers, been stripped of their bargaining
unit status and the opportunity to establish them
selves as an independent bargaining unit under
paragraph 125(3)(a). Presumably this would be
discrimination under the paragraph as applied
rather than as written. But I have already
expressed the view that the CLRB did not base its
decision upon "mere numbers". However, even if it
had, it would not even constitute an error of law
under the Code, let alone an act of discrimination
under the Andrews test.
Since the applicant's challenge under subsection
15(1) fails, no issue arises under section 1.
It should finally be noted that none of the
parties in this case made any argument to the
Court in relation to the appropriateness of a chal
lenge to constitutional jurisdiction on a section 28
application, rather than through an action for a
declaration, so that it is unnecessary to address
this issue.
The section 28 application should accordingly be
dismissed.
HEALD J.A.: I agree.
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.