Judgments

Decision Information

Decision Content

T-2029-76
The Queen, on the relation of William Gilbey and Marjorie Steffensen, on their own behalf and on behalf of certain members of Grain Services Union (C.L.C.) and Grain Services Union (C.L.C.) (Applicants)
v.
J. Stuart Gunn, a Commissioner purportedly appointed pursuant to the provisions of the Canada Labour Code, Saskatchewan Wheat Pool and Manitoba Pool Elevators (Respondents)
Trial Division, Thurlow A.C.J.—Ottawa, June 8, 9 and 17, 1976.
Labour relations—Appointment of Commissioner to inquire into matters involving employees of respondent companies— Application seeking to prohibit Commissioner from further proceeding, claiming lack of jurisdiction, and for quo warranto requiring Commissioner to show by what authority he claimed to exercise office of Commission of Inquiry concerning collec tive bargaining between parties—Whether Commissioner biased—Canada Labour Code, R.S.C. 1970, c. L-1, ss. 27(3)(a), 29, 30, 32, 32.1, 62, 110(1).
The Governor in Council appointed a Commission of Inquiry to ascertain the duties etc. of a class of employees employed in country grain elevators to determine whether the hours of work provisions of sections 29 and 30 of the Canada Labour Code without modification would be unduly prejudicial to employees' interests, would be or were seriously detrimental to the elevator companies, and whether such employees should be exempted from the application of sections 29, 30 and 32. Applicants' first basis for seeking relief was that since applicant union had been certified to bargain for employees of respondent companies, terms and conditions of employment (including hours of work) were subject to collective bargaining under Part V of the Code. It was claimed that there was repugnancy between Parts III and V as a whole with respect to employees for whom an agent had been certified, and that if a change were made in the Regulations under Part III, the employer might be in violation of Part V for failure to bargain collectively. It was also argued that a right had been conferred by section 110(1) to bargain collectively and that the Act should be interpreted to protect it. Secondly, applicants alleged that the conduct of the Commis sioner, in meeting with representatives of the elevator compa nies in the absence of union representatives raised a reasonable apprehension of bias. The function of the Commission it was claimed, was judicial or quasi-judicial because the recommen dations might affect rights of parties and because he had the powers of a Commissioner under the Inquiries Act to enforce attendance of witnesses and take sworn evidence. Even if the inquiry was neither, it was argued that natural justice demand ed an impartial hearing.
Held, the application is dismissed. (1) If possible, the Act should be interpreted to avoid repugnancy; the Court did not consider the Parts repugnant. The application of Part III is provided for in section 27 in terms broad enough to include all operations of respondent companies. There is no specific provi sion in the Code exempting operations of respondent companies or operations generally from the application of Part III where employees have bargaining agents certified under Part V. And, by section 28, it is apparent that Parliament intended the provisions of Part III and the general law of the land to govern, though within that context it would be open to employees to contract for better hours of work terms than those provided for in Part III. What sections 29, 30 and 32 provide are not definitely prescribed hours, but merely maximum hours; the employees or their agents can still, within that limitation, contract for hours and work terms. Nothing in Part V suggests that the right to bargain collectively must be treated as para mount and overriding either hours of work provisions of Part III (sections 29 and 30) or the Regulations enacted under Part III (section 32.1). Nor does anything in section 110(1) support this claim; changes in the Regulations under Part III are made only by the Governor in Council, and could not themselves put the employer in breach of his statutory obligations to bargain collectively with the agent of his employees. (2) While the inquiry contemplated by section 32.1(2) as a preliminary to the exercise by the Governor in Council of the powers conferred by section 32.1(1) was considered not to be judicial or quasi-judi cial and not required to be conducted as if there were a lis between competing parties, or as if it were a proceeding in which the audi alteram part em rule applied, the matter was not decided on that issue but was dealt with on the assumption that the inquiry was quasi-judicial and the rule did apply. The most to which applicants were entitled under the rule was to be made aware of what was being put before the Commissioner by others and to be given a fair and reasonable chance to reply. The procedure was for the Commissioner to determine, and there was no reason not to hear some interested parties in the absence of others so long as the principle of fair opportunity to correct or contradict relevant prejudicial statements was fol lowed. No rule of law was breached when the Commissioner had such meeting, nor was there evidence of anything likely to influence him, or form the basis for any conclusion having been said. And, while the union was concerned that the meeting had occurred without its knowledge, there is no evidence that the Commissioner was ever asked to state for its information what had been said in order for applicants to respond.
Board of Education v. Rice [1911] A.C. 179, applied. Guay v. Lafleur [1965] S.C.R. 12 and Committee for Justice and Liberty y. National Energy Board (1976) 9 N.R. 115, distinguished.
APPLICATION. COUNSEL:
G. K. Randall for applicants.
L. P. Chambers and D. F. Friesen for
respondent Gunn.
W. J. Vancise for respondent Saskatchewan
Wheat Pool.
E. W. Olson for respondent Manitoba Pool
Elevators.
SOLICITORS:
Goldenberg, Taylor & Tallis, Saskatoon, for
applicants.
Deputy Attorney General of Canada for respondent Gunn.
Balfour, Moss, Milliken, Laschuk, Kyle, Vancise & Cameron, Regina, for respondent Saskatchewan Wheat Pool.
Scarth, Simonsen & Company, Winnipeg, for respondent Manitoba Pool Elevators.
The following are the reasons for judgment rendered in English by
THURLOW A.C.J.: This is an originating application for:
(1) an order directed to the respondent, J. Stuart Gunn, to prohibit him from further pro ceedings with a Commission of Inquiry, appoint ed pursuant to the provisions of the Canada Labour Code, R.S.C. 1970, c. L-1, with respect to matters involving employees of the respond ents, Saskatchewan Wheat Pool and Manitoba Pool Elevators (hereinafter called "the respond ent companies"), upon the ground that the said J. Stuart Gunn is without jurisdiction to hear and determine the matters set forth in the appointment of the said respondent as a Com mission of Inquiry under the Canada Labour Code and
(2) an order that a writ of quo warranto do issue, directed to the said J. Stuart Gunn, requiring him to show by what authority he claims to exercise the office of a Commission of Inquiry, concerning matters of collective bar gaining between the applicant and the respond ents, Saskatchewan Wheat Pool and Manitoba Pool Elevators.
The matters in respect of which the Commission was appointed to inquire appear from the appoint ment, which reads as follows:
APPOINTMENT OF A COMMISSION OF INQUIRY
The Minister of Labour, pursuant to Section 62 of the Canada Labour Code, hereby appoints J. Stuart Gunn, Esq., of the City of Winnipeg, in the Province of Manitoba, as a Commission of Inquiry to ascertain the duties, functions and responsibilities of a class of employees known as "country elevator managers" or "country elevator agents" employed in country grain elevators, the principle use of which is the receiving of grain from producers in the Provinces of Ontario, Manitoba, Saskatche- wan, Alberta and British Columbia for either or both storage and forwarding and to submit its findings and recommenda tions as to whether
(a) the Hours of Work Provisions of Sections 29 and 30 of Part III of the Canada Labour Code without modification
(i) would be unduly prejudicial to the interests of the employees;
(ii) would be or is seriously detrimental to the operations of the Country Grain Elevator Companies;
(b) such employees should be exempted from the application of any one or more of Sections 29, 30 and 32.
The said Commission may engage the services of such account ants, engineers, technical advisors or other experts, clerks, reporters or assistants as it deems necessary or advisable to assist in the Commission of Inquiry.
IN WITNESS WHEREOF the Minister of Labour has hereby set his hand and affixed his seal of office at Ottawa this 12th day of November, 1975.
Sections 29, 30, 32 and 62 of the Canada Labour Code, which are referred to in the appoint ment, as well as section 32.1, are all found in Part III of the Code. They provide as follows:
29. (1) Except as otherwise provided by or under this Divi sion, the working hours of an employee shall not exceed eight hours in a day and forty hours in a week, and, except as provided by or under this Division, no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.
(2) Where the nature of the work in an industrial establish ment necessitates irregular distribution of an employee's hours of work, the hours of work in a day and the hours of work in a week may be calculated, in such manner and in such circum stances as may be prescribed by the regulations, as an average for a period of two or more weeks.
(3) In a week in which a general holiday occurs that under Division IV entitles an employee to a holiday with pay in that week, the working hours of the employee in that week shall not exceed thirty-two; but, for the purposes of this subsection, in calculating the time worked by an employee in any such week,
no account shall be taken of any time worked by him on the holiday or of any time during which he was at the disposal of his employer during the holiday.
30. (1) An employee may be employed in excess of the standard hours of work but, subject to sections 33 and 34 and to any regulations made pursuant to section 32.1, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in respect of which he is employed.
(2) Subsection 29(2) applies in the computation of the max imum hours of work in a week prescribed under this section.
32. When an employee is required or permitted to work in excess of the standard hours of work, he shall, subject to any regulations made pursuant to section 32.1, be paid for the overtime at a rate of wages not less than one and one-half times his regular rate of wages.
32.1 (1) The Governor in Council may make regulations
(a) modifying the provisions of sections 29 and 30 for the purpose of the application of this Division to classes of employees specified therein who are employed upon or in connection with the operation of any industrial establishment specified therein where, in his opinion, the application of those sections without modification
(i) would be or is unduly prejudicial to the interests of employees of such classes, or
(ii) would be or is seriously detrimental to the operation of the industrial establishment;
(b) exempting any class of employees specified therein from the application of any one or more of sections 29, 30 and 32 where he is satisfied that those sections cannot reasonably be applied to that class of employees;
(c) providing that section 32 does not apply in circumstances where work practices specified in the regulations are followed that in his opinion make the application of that section either unreasonable or inequitable; and
(d) providing for the calculation of hours worked by employees of any class who are employed in any industrial establishment or in any class of industrial establishment specified therein.
(2) No regulations may be made pursuant to paragraph (1)(a) or (b) unless the Minister has, pursuant to section 62, caused an inquiry to be made into and concerning the employ ment of employees liable to be affected thereby and received a report from the person or persons appointed to hold the inquiry.
62. (1) The Minister may, for any of the purposes of this Part, cause an inquiry to be made into and concerning employ ment in any industrial establishment and may appoint one or more persons to hold the inquiry.
(2) A person appointed pursuant to subsection (1) has and may exercise all of the powers of a person appointed as a commissioner under Part I of the Inquiries Act.
The bases of the attack on the authority of Mr. Gunn to carry out this mandate, as put forward on the argument of the application, were:
(1) that since the applicant union has been cer tified under Part V of the Canada Labour Code as the bargaining agent for persons employed by the two respondent elevator companies the terms and conditions of their employment, including their hours of work, are subject to collective bargaining under Part V of the Act and are no longer subject to the provisions of section 32.1 under which they might otherwise be affected by changes in regulations made under the au thority of that provision, and
(2) that there is reasonable apprehension of bias on the part of the Commissioner.
Counsel for Mr. Gunn in the course of his argument dealt with these attacks and raised, as well, several objections to the application for a writ of quo warranto including an objection that the Crown is not properly joined as a party to the proceeding. Counsel for the respondent companies made no submissions and took no position with respect to the merits of the application but formal ly moved the Court to dismiss the application as against the respondent companies on the grounds that no cause of action was alleged against them, that no claim for relief was made against them and that the Court has no jurisdiction to issue a writ of prohibition against them. As I have reached the conclusion that the application fails on the merits and must be dismissed it does not appear to me to be necessary to deal with these objections.
The submission on behalf of the applicants on its first ground of attack, as I have understood it, was that terms and conditions of employment include terms as to hours of work and that once there is a bargaining agent certified under Part V of the Canada Labour Code these terms are no longer subject to be affected except through collective bargaining under Part V, which takes precedence over Part III with respect to employees for whom a bargaining agent has been certified because Part V was enacted later than Part III. It was argued in support of this position that there was repugnancy
between Part III and Part V as a whole with respect to employees for whom a bargaining agent had been certified and that if a change were made in the regulations under Part III the employer might be in violation of Part V for failure to bargain collectively. It was also said that a right had been conferred by subsection 110(1) 1 to bar gain collectively and that the statute should be interpreted so as to protect that right.
In my opinion the statute is to be interpreted, if it can be, so as to avoid repugnancy between its Parts and, approaching its construction with this principle in mind, I do not consider the Parts to be repugnant to one another. The application of Part III is provided for in section 27 in terms broad enough to include the operations of the respondent companies. On this there does not appear to be any dispute between the parties. Nor was it suggested that there was any specific provision anywhere in the Code exempting from the application of Part III the operations of the respondent companies or operations generally wherein the employees have bargaining agents certified under Part V. The material before the Court suggests that there may be a question whether the employees of the respondent companies referred to as managers or agents are exempted from some of the provisions of Part III by section 27(3)(a) but this point is not in issue in the present proceeding. Further by section 28 it is provided that:
28. (1) This Part applies notwithstanding any other law or any custom, contract or arrangement, whether made before or after the 1st day of July 1965, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to him than his rights or benefits under this Part.
(2) Nothing in this Part authorizes the doing of any work on Sunday that is prohibited by law.
In my view it is apparent from this that Parlia ment intended that the provisions of Part III and the general law of the land were to govern though within that context it would be open to employees to contract for more favourable hours of work terms than those provided for in Part III.
Next, as it seems to me, what is provided by sections 29, 30 and 32 are not definitely prescribed
1 110. (1) Every employee is free to join the trade union of his choice and to participate in its lawful activities.
hours of work but merely the maximum hours that an employer may lawfully ask or contract with an employee to work. Under that limitation it is still open to the employee or his bargaining agent to contract for such hours of work terms as he and the employer can agree. Moreover, there is nothing in Part V which appears to me to so much as suggest that the right to bargain collectively with respect to hours of work and the procedure pro vided to secure collective bargaining must be treat ed as paramount and as overriding either the hours of work provisions of Part III, i.e., sections 29 and 30, or the law enacted in Part III, i.e., section 32.1, by which the application of the provisions of sec tions 29, 30 and 32 may be modified.
Finally, I find nothing in subsection 110(1) to support the applicants' contention and I think it is plain that changes in the regulations under Part III, even if requested or promoted by an employer, are made not by the employer but by the Governor in Council, and could not by themselves put the employer in breach of his obligations under the statute to bargain collectively with the bargaining agent of his employees. The submission on behalf of the applicants accordingly fails.
The submission that there is reasonable appre hension of bias on the part of the Commission arises in the following circumstances.
On or about November 28, 1975, the applicant union received from the Department of Labour a letter announcing the appointment of the Commis sion and enclosing a copy of the appointment. By the same courier the union also received a letter from Mr. Gunn which read as follows:
COMMISSION OF INQUIRY
November 19, 1975
Grain Services Union, 202-1810 Albert Street, REGINA, Saskatchewan. S4P 2S8
Dear Sirs:
I understand that the Deputy Minister of Labour has notified you of my appointment as a Commission of Inquiry into the responsibilities and hours of work of grain elevator managers.
I would be interested in any representations your organization wishes to make. Please submit written briefs within approxi mately three weeks of the date of this letter.
I will contact you regarding the date and place of any hearings. Should it be decided that public hearings will not be necessary, all briefs received will be circulated.
Would you please direct any correspondence and copies of your brief to the Secretary of the Commission, Mrs. J. A. Weinman, Room 914, Sir Wilfred Laurier Building, 340 Laurier Avenue West, Ottawa, Ontario, KIA 0J2. Mrs. Weinman may also be reached at 997-3010.
The appointment of a commission of inquiry came as a surprise to the applicant union which was not aware that representations had been made to the Department by the elevator companies. Paragraph 13 of the affidavit of W. G. Gilbey filed in support of the application, and subsequent para graphs dealing with matters which followed in which the Commissioner was involved read as follows:
13. THAT prior to November 28th, 1975, when the said letters were received, the Applicant Union had had no notice of any discussions of any kind concerning hours of work being carried on between representatives of Saskatchewan Wheat Pool, Manitoba Pool Elevators and officials of the Labour Standards Branch of the Canada Department of Labour. Further, the Applicant trade union had no knowledge of and was not consulted as to the appointment of the said Commission of Inquiry, prior to its appointment. Until receipt of the said letters, the Applicant Union had bargained in good faith with representatives of Saskatchewan Wheat Pool and Manitoba Pool Elevators concerning the matters referred to in the appointment of the said Commission and had been of the view that the said companies were also bargaining in good faith.
14. THAT following receipt of the letters aforesaid, I met in Regina, Saskatchewan, on December 8th, 1975 with the Respondent, GUNN, and one Phillip Ponting, a solicitor repre senting Saskatchewan Wheat Pool and Manitoba Pool Eleva tors, among other grain companies. Shortly thereafter, I con tacted the said Ponting by telephone and requested copies of all correspondence which had passed between the said Ponting as solicitor for Saskatchewan Wheat Pool and Manitoba Pool Elevators, and the Canada Department of Labour. I was informed by the said Ponting that the manager of personnel for Saskatchewan Wheat Pool, one Metro Kereluke, had requested that the correspondence not be furnished to us until he had had an opportunity to check the matter with other grain companies.
16. THAT on or about December 18th, 1975 the Respondent, GUNN, telephoned me to request a meeting at Winnipeg on January 12th and 13th, 1976. During the said conversation I asked the said Respondent to provide the Union with copies of all correspondence passing between the companies aforesaid and the Canada Department of Labour. The Respondent, GUNN, replied that he required permission from the Deputy Minister of Labour to release the said documents.
17. THAT on or about December 23rd, 1975 I received from the Respondent, GUNN, a copy of a letter dated August 8th, 1975 from Ponting aforesaid to T. M. Eberlee aforesaid, con cerning hours of work for country elevator managers. Attached hereto and marked as Exhibit "K" to this my affidavit is a true
photostatic copy of the said letter. The said Union had not been provided with a copy of the said letter prior to that time and had no knowledge that it had been written.
18. THAT on January 12th, 1976 I attended in Winnipeg at a meeting with the Respondent, GUNN, and the said Ponting. I was accompanied by Marjorie Steffensen, Assistant Secretary- Manager of Grain Services Union, and by Gwen Randall, solicitor for the said Union. At the said meeting, I took the posi tion that the Respondent companies had communicated with officials of the Canada Department of Labour concerning hours of work without our knowledge and that as a result of the said communications, the Commission of Inquiry had been appoint ed, again without our knowledge or any consultation with us. I stated further that in our opinion the said appointment inter fered substantially with collective bargaining which had taken place between the Union and the said companies. I further stated that it was our opinion that if the Department of Labour had been fully aware of the situation, perhaps the appointment of the Commission of Inquiry would not have been made. In reply, Ponting, as solicitor for the companies aforesaid, agreed that, in fact, the Commission of Inquiry might not have been appointed if the Department had been aware of all the facts but that he felt that the Commission should proceed nonetheless.
19. THAT after some further discussions, the Respondent, GUNN, stated that he also was of the opinion that the said Commission ought not to have been appointed under the cir cumstances, and he suggested that all representatives journey to Ottawa to put the matter before the said Eberlee, Deputy Minister of Labour.
20. THAT on January 13th, 1976 I met in Ottawa with the said T. M. Eberlee, Deputy Minister of Labour, together with Marjorie Steffensen and Gwen Randall aforesaid. The said Ponting and the said GUNN were also in attendance, together with a number of officials from the Canada Department of Labour. The said Eberlee indicated that he would inform both parties as soon as possible of his decision.
21. THAT on January 19th, 1976 I met in Winnipeg with the said Eberlee, together with Marjorie Steffensen and Gwen Randall as aforesaid. The said Ponting and the said GUNN were also in attendance, together with representatives of Alberta Wheat Pool and Saskatchewan Wheat Pool. The said Eberlee informed us that he was of the view that the Commission should proceed and the procedural details should be worked out with the Respondent, GUNN, at that meeting. At the said meeting I again requested that we be provided with copies of all correspondence which had taken place between the solicitor for Saskatchewan Wheat Pool and Manitoba Pool Elevators, and the Canada Department of Labour. Copies of some correspond ence were provided at the meeting. Again, this was the first time the said Union had seen or received copies of the said correspondence.
22. THAT by a letter dated the 21st day of January, A.D. 1976, the solicitors for the Applicant Union wrote to the Secretary of the Commission, renewing our request for copies of all corre spondence. Attached hereto and marked as Exhibit "L" to this my affidavit is a true photostatic copy of the said letter.
23. THAT by a letter dated the 27th day of January, A.D. 1976, the said Secretary replied to the solicitors for the Applicant, enclosing a copy of a letter dated September 10th, 1975 from the said Eberlee to Ponting aforesaid. Attached hereto and
marked as Exhibit "M" to this my affidavit is a true photostat- ic copy of the said letter.
On February 24, 1975, the applicant union wrote to the Minister of Labour concerning the appointment of the Commission and on April 7, 1975, its representatives met him at Ottawa but the Minister decided that the Commission should proceed. In the meantime the union had also writ ten to the respondent companies requesting them to commence collective bargaining with respect to the hours of work of their manager/agent employees.
Paragraphs 31 and 32 of the affidavit and the letter referred to in paragraph 32 set out the matter on which the alleged apprehension of bias is based. They read:
31. THAT on the 22nd day of April, A.D. 1976 I met in Winnipeg with the Respondent, GUNN, and Ponting aforesaid. I was accompanied by Marjorie Steffensen and George Taylor aforesaid. The meeting commenced at 2 p.m., at which time the Respondent, GUNN, stated that he had met that morning with the said Ponting, and with representatives of Saskatchewan Wheat Pool and Manitoba Pool Elevators, in the absence of counsel or representatives for the Applicant Union. The said George Taylor took objection to this meeting having taken place but no explanation was given by the Respondent, GUNN.
32. THAT on April 23rd, 1976 I caused a letter to be written and mailed to the Respondent, GUNN, concerning this matter and attached hereto and marked as Exhibit "T" to this my affidavit is a true photostatic copy of the said letter.
GRAIN SERVICES UNION (C.L.C.)
April 23, 1976.
Mr. J. S. Gunn,
Commission of Inquiry, c/o Mrs. J. A. Weinman,
Labour Canada, Ottawa, Ontario. K1A 0J2.
Dear Mr. Gunn:
In the absence of our counsel, Mr. Taylor, we ourselves are writing to confirm the proposal which we made at the meeting in Winnipeg on April 22, 1976.
As you know, we were astonished to find, upon arriving at the meeting, that the Commissioner had met that morning with representatives of the employers in our absence. We were even more astonished to find when we arrived that the employers were represented only by their counsel, although we had under stood, and our understanding had been confirmed by one of the employers, that they would be present when we met with Mr. Gunn. These two circumstances gave us, and continue to give us, serious concern. In particular, in our opinion they made any effective discussion of averaging of hours pointless.
As a result, and after giving careful consideration to the situation as we saw it, our counsel made a proposal that the
Commissioner convene and preside over a meeting attended by representatives of the employers, with their counsel; representa tives of the Union, with their counsel, at least two representa tives of the Department of Labour including the Deputy Minis ter and the Director of the Labour Standards Division.
Our proposal contemplated that the meeting might involve three phases:
(1) A determination whether or not the employers are pre pared to consider and attempt to agree upon the application of averaging of hours in the industry.
(2) If this first phase produced agreement on the principle, then the second phase would involve discussion of concrete terms of averaging with a view to arriving at a mutual agreement acceptable to the employers and the Union, and the Department.
(3) If such agreement was reached, then the method of implementation, through the Department in the case of unorganized employees, and through negotiations in the case of the organized employees, could be settled.
We envisaged that this procedure would be far more likely to produce positive results, and if successful would render the Commission unnecessary.
We urge that you give our proposal the most careful con sideration, and respond as soon as possible.
Yours truly,
W. G. Gilbey, Secretary-Manager.
c.c. Hon. John Munro, Minister of Labour.
There was no cross-examination of Mr. Gilbey on his affidavit and no evidence was offered on behalf of the respondents. In the circumstances it is, I think, to be inferred that the subject matter of conversation between the Commissioner and Mr. Ponting and whoever else was present at the meet ing on the morning of April 22 was the inquiry and matters to be dealt with in the course of it. But there is no evidence of what was said by anyone present at the meeting.
The applicants' submission was that the conduct of the Commissioner in holding a meeting with representatives of the elevator companies, includ ing the two respondent companies, in the absence of representatives of the union raises a reasonable apprehension of bias. In support of this position counsel referred to the judgment of the Supreme Court in the recent case of the Committee for Justice and Liberty v. National Energy Board [(1976) 9 N.R. 115] and submitted that the func tion of the Commissioner was analogous to that of the National Energy Board in that case and was a judicial or quasi-judicial proceeding because the
Commission's recommendations, if adopted, might affect the rights of parties and because the Com mission has the powers of a Commissioner under the Inquiries Act to enforce the attendance of witnesses and to take evidence under oath. It was also said that even if the inquiry was neither judicial nor quasi-judicial in character the appli cants were still entitled to an impartial hearing held in accordance with the principles of natural justice.
On this point Laskin C.J.C., speaking for the majority in the National Energy Board case said at page 130 of his reasons for judgment:
What must be kept in mind here is that we are concerned with a s. 44 application in respect of which, in my opinion, the Board's function is quasi-judicial or, at least, is a function which it must discharge in accordance with rules of natural justice, not necessarily the full range of such rules that would apply to a Court (although I note that the Board is a Court of record under s. 10 of its Act) but certainly to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings. This is not, however, a prescrip tion that would govern an inquiry under ss. 14(2) and 22.
It appears to me that the function of an inquiry under section 62 of the Canada Labour Code, which is simply to inquire and impliedly to report 2 , is more closely analogous to that of inquiries under subsection 14(2) and section 22 of the National Energy Board Act' or to the inquiry under the Income Tax Act considered in Guay v. Lafleur 4 where the statute gave to the person appointed authority to hold an inquiry and conferred on him the powers of a Commissioner under sections 4, 5 and 11 of the Inquiries Act. In that case the basis of the judgment of the majority that the respond ent, who was one of a number of persons whose affairs were the subject of the inquiry, was not entitled to be present was, as it seems to me, that the inquiry was a private investigation and the person holding it had no authority to decide or adjudicate upon anything. Here the matters to be investigated are perhaps of not so private a charac ter but the feature that the Commissioner has no
2 See subsection 32.1(2).
3 For the purposes of an inquiry under section 14(2) the Board has under subsection 10(3), with respect to obtaining evidence, the powers of a superior court of record and for the purposes of section 22 it has, under section 24, the powers of Commissioners under Part I of the Inquiries Act.
4 [1965] S.C.R. 12.
authority to decide anything is present and it appears to me to distinguish the present situation from that in the National Energy Board case (supra) where under section 44 of the National Energy Board Act the Board was empowered to decide whether a certificate should issue and to order, subject to the approval of the Governor in Council, that it issue.
In his dissenting judgment in Guay v. Lafleur (supra), Hall J. made the point that in fact the person holding the inquiry was not excluded from making recommendations and that the reality of the situation was that in such cases the decision was made by the person inquiring and was put out in the name of the Deputy Minister.
In the present case the appointment itself went further than either section 62 or subsection 32.1(2) in not merely authorizing an inquiry and report but in asking as well for the Commissioner's recommendations, which it can be assumed may ultimately have some effect on any decision which the Governor in Council may take. The situation is thus not precisely analogous to that in Guay v. Lafleur nor to that in the National Energy Board case and appears to be somewhere between the two.
I am of the opinion that the inquiry contemplat ed by subsection 32.1(2) as a preliminary to the exercise by the Governor in Council of the powers conferred by subsection 32.1(1) is not of a judicial or quasi-judicial nature and is not required to be conducted as if there were a lis between competing parties or as if it were a proceeding in which the audi alteram partem rule applied in favour of the applicants. I prefer, however, not to decide the matter on that point and propose to deal with it on the assumption that the inquiry is of a quasi-judi cial nature and that the audi alteram partem rule does apply.
That, however, is far from saying that the Com missioner must hold some sort of trial, or that the applicants are entitled to a confrontation with the representatives of the elevator companies before the Commissioner, or indeed that the Commission er need hold an oral hearing. In point of law, as I view it, the most that the applicants are entitled to under the rule is to be made aware, in one way or another, of what is being put before the Commis-
sioner by others, and to be given a fair and reason able opportunity to make their own representations in reply. The procedure for according or protecting such right, no procedure having been prescribed by statute or regulation, was for the Commissioner to determine and there was, as I see it, no reason why he could not adopt a procedure of hearing interest ed parties in the absence of other interested parties so long as the principle stated by Lord Loreburn in Board of Education v. Rice 5 was observed.
In my view it is against this background of what rights the applicants may have that the facts relied on by the applicants as showing a reasonable apprehension of bias must be judged. No rule of law was breached by the Commissioner having a meeting with representatives of the elevator com panies in the absence of the representatives of the union and there is no evidence that anything what ever likely to influence the view of the Commis sioner or to form a basis for any conclusion by him on the merits of the matters to be investigated was said during whatever discussions took place. Nor is there evidence that Mr. Gunn was ever asked to state for the information of the applicants what had been said at the meeting so that the applicants might make representations in regard thereto. This may be contrasted with the union's earlier con duct, as disclosed by the affidavit, in demanding copies of correspondence which had passed be tween the companies and the Department. And while the letter written by the union the day after the meeting indicates that the union was con cerned that the meeting had taken place without its knowledge and in its absence, it is noteworthy that nowhere in the letter is any apprehension of bias expressed or any objection taken to the inqui ry being proceeded with by Mr. Gunn. Instead what is found in the letter is a proposal of sorts which the union hoped might render an inquiry unnecessary, and in which the suggestion was made that Mr. Gunn be the Chairman of a meet ing between representatives of the department, the union and the companies.
5 [1911] A.C. 179 at page 182:
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.
In my opinion the extent of any rights the applicants may have as a result of the meeting of the Commissioner with elevator company repre sentatives on the morning of April 12, 1976, is to be informed of what transpired at the meeting and to be afforded a reasonable opportunity to make reprèsentations to the Commissioner on the subject matter and the evidence that such a meeting was held establishes neither bias nor any reasonable apprehension of bias on the part of Mr. Gunn.
The application accordingly fails and it will be dismissed with costs against the relators, William Gilbey and Majorie Steffensen and the applicant, Grain Services Union.
 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.