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.