T-4761-76
Télévision St -François Inc. (CKSH-TV) and
Télévision St-Maurice Inc. (CKTM-TV) (Appli-
cants)
v.
Canada Labour Relations Board and National
Association of Broadcast Employees and Techni
cians (NABET) (Respondents)
Trial Division, Dubé J.—Montreal, January 17;
Ottawa, January 21, 1977.
Jurisdiction — Application for writ of prohibition
Powers of Canada Labour Relations Board in relation to
proceedings under Part V of Canada Labour Code Applica
tion of s. 122 of the Code — Canada Labour Code, Part V,
S.C. 1972, c. 18, ss. 117, 118, 119, 122, 133 Canada Labour
Relations Board Regulations SOR/73-205, ss. 3, 26, 32, 33
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18(b), 28.
Applicants seek a writ of prohibition forbidding the respond
ent Board from taking any action with respect to its file No.
560-15 concerning their application for a review, pursuant to
section 119 of the Canada Labour Code, of a ruling that the
second respondent was to be certified as a bargaining agent for
all their employees. A verbal decision rejecting their application
for a review was followed by a notice from the Board stating
that it had decided to consider the applicants' position under
section 133 of the Code separately and that a new file was to be
opened containing copies of documents in file No. 530-139 that
were relevant to the section 133 ruling. Applicants claim that
the Board has no jurisdiction to initiate hearings and can not
convert an application pursuant to section 119 of the Code into
a hearing pursuant to section 133.
Held, the application is dismissed. As the proceedings of the
Board are within its jurisdiction pursuant to powers conferred
on it by the Code, no relief is provided for in section 18(b) of
the Federal Court Act and the privative clause contained in
section 122(2) of the Code prohibits the Court from restraining
such proceedings.
B.C. Packers Ltd. v. Canada Labour Relations Board [ 1973]
F.C. 1194, applied. B.C. Packers Ltd. v. Canada Labour
Relations Board [1974] 2 F.C. 913, distinguished.
APPLICATION for writ of prohibition.
COUNSEL:
T. Goloff for applicants.
M. Robert for respondent Canada Labour
Relations Board.
R. Cleary for respondent National Associa
tion of Broadcast Employees and Technicians.
SOLICITORS:
Massicotte, Sullivan, Lagacé & Goloff,
Montreal, for applicants.
Robert, Dansereau, Barré, Marchessault &
Thibeault, Montreal, for respondent Canada
Labour Relations Board.
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for respondent National
Association of Broadcast Employees and
Technicians.
The following is the English version of the
reasons for order rendered by
DUBS J.: This is an application for the issue of a
writ of prohibition forbidding respondent, the
Canada Labour Relations Board (hereinafter
referred to as the Board), to hold any hearing or
take any action with respect to its file No. 560-15
concerning the applicants.
The affidavit supporting the application states
that on October 15, 1975 applicant, Télévision
St -François Inc. (CKSH-TV), sent the Board an
application for review pursuant to section 119 of
the Canada Labour Code, asking the Board to
review its order of August 22, 1975 and to rule
that respondent, the National Association of
Broadcast Employees and Technicians (NABET),
is certified as a bargaining agent for a unit includ
ing all the employees of CKSH-TV, with the
exclusion of certain persons. On June 25, 1976 the
Board delivered at its meeting a verbal decision
rejecting the said application for exclusion and
confirming the aforementioned order of
August 22.
On October 25, 1976 the Board sent applicants
a notice, the first paragraph of which is contained
below:
[TRANSLATION] Please note that the Board has, on its own
initiative, decided to deal with the question of a declaration
under section 133 of the Canada Labour Code (Part V—
Industrial Relations) separately from application for review
No. 530-139 affecting the aforementioned parties. It has
accordingly ordered that a specific file be set up for this case
and that copies of documents in file No. 530-139, concerning
the application of section 133, be placed therein. [The underlin
ing is mine.]
Applicants allege that the Board has no jurisdic
tion to call hearings and has no legal authority
with respect to applicants, since the said Board
may not, when an application is submitted under
section 119 of the Code (application for exclu
sion), divert the inquiry toward an order pursuant
to section 133 (constituting a single employer).
The two sections of the Code read as follows:
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
133. Where, in the opinion of the Board, associated or
related federal works, undertakings or businesses are operated
by two or more'employers, having common control or direction,
the Board may, after affording to the employers a reasonable
opportunity to make representations, by order, declare that for
all purposes of this Part the employers and the federal works,
undertakings and businesses operated by them that are speci
fied in the order are, respectively, a single employer and a
single federal work, undertaking or business.
Before considering the merits of this application,
the Court must determine whether the Trial Divi
sion has jurisdiction in this area, in view of the
prohibition of subsection 122(2) of the Code:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with section 28 of the Federal
Court Act.
(2) Subject to subsection (1), no order shall be made, pro
cess entered or proceeding taken in any court, whether by way
of injunction, certiorari, prohibition, quo warranto or other
wise, to question, review, prohibit or restrain the Board in any
of its proceedings under this Part.
It is therefore certain that if applicants were
challenging an "order" or a "decision" of the
Board, the Trial Division would not have jurisdic
tion. However, applicants are not challenging a
decision or an order, but are asking the Court to
prohibit the proceedings of the Board, although
subsection 122(2) prohibits any court from issuing
a writ of prohibition against any proceedings of the
Board under Part V of the Code, entitled INDUS
TRIAL RELATIONS. The Court must therefore
determine in the case at bar whether the proceed
ings of the Board were within its jurisdiction. If so,
the Court cannot, of course, intervene.
In B.C. Packers v. Canada Labour Relations
Board', the Court of Appeal referred to section
122 of the Code in the following terms, at page
1198:
If section 122(2) prevents the use of other types of proceedings
with respect to the Board's exercise of its jurisdiction it is
because Parliament has made clear by that subsection that the
day-to-day exercise by the Board of its authority to conduct the
proceedings before it is not to be called in question or hampered
by proceedings of that nature, though its decisions affecting the
rights of parties before it are to be reviewable under section 28
of the Federal Court Act. We express no opinion as to whether
section 122(2) has any application to prevent proceedings in a
case where the Board purports to exercise a jurisdiction that
has not been conferred on it.
My brother Addy J. expressed an opinion on the
subject in B.C. Packers Ltd. v. Canada Labour
Relations Board 2 at page 921:
In my view, there is nothing extraordinary in this privative
clause contained in the Canada Labour Code.
There are numerous decisions of common law courts of the
highest jurisdiction over many years which have held that
courts of superior jurisdiction possessing powers of prohibition
and entrusted with the duty of supervising tribunals of inferior
jurisdiction, have not only the jurisdiction but the duty to
exercise those powers notwithstanding privative clauses of this
nature where the application is based on a complete lack of
jurisdiction on the part of the tribunal of inferior jurisdiction to
deal with the matter with which it purports to deal. These
decisions are based on the very logical assumption that where
Parliament has set up a tribunal to deal with certain matters it
would be completely illogical to assume that, by the mere fact
of inserting a privative clause in the Act constituting the
tribunal and outlining its jurisdiction, Parliament also intended
to authorize the tribunal to deal with matters with which
Parliament had not deemed fit to entrust it or to exercise
jurisdiction over persons not covered by the Act of Parliament,
or to engage in an illegal and unauthorized hearing.
Addy J. ordered the issue of a writ of prohibi
tion against the Board, and also ruled that the
Board was "a federal board, commission or tribu
nal" against which relief might be granted under
section 18(b) of the Federal Court Act. The
Board's lack of jurisdiction was based on the fact
that the labour contract governing the fishermen
fell within provincial authority. An appeal against
this decision was dismissed by the Court of
Appeal.'
[1973] F.C. 1194.
2 [1974] 2 F.C. 913.
3 [1976] 1 F.C. 375.
The specific question in the case at bar is wheth
er the Board has the power proprio motu, as stated
in its aforementioned letter, to decide "on its own
initiative ... to deal with the question of a declara
tion under section 133 of the Code", when dealing
with an application for exclusion under section
119.
The powers and functions of the Board are
defined in sections 117 and 118 of the Code.
Under section 117, the Board has the power to
make regulations of general application respecting,
inter alia:
117. The Board may make regulations of general application
respecting
(a) the establishment of rules of procedure for its hearings;
(f) the hearing or determination of any application, com
plaint, question, dispute or difference that may be made or
referred to the Board;
(o) such other matters and things as may be incidental or
conducive to the proper performance of the duties of the
Board under this Part.
The Canada Labour Relations Board Regula
tions (SOR/73 - 205, April 10, 1973) prescribe,
inter alia:
3. Every proceeding before the Board shall be commenced
by the filing with the Board of an application in writing.
26. No proceeding before the Board is invalid by reason only
of a defect in form or a technical irregularity.
32. An application to' the Board under section 119 of the
Code requesting it to review, rescind, amend, alter or vary any
order or decision made by it shall be dated and shall contain
the following:
33. Where associated or related federal works, undertakings
or businesses are operated by two or more employers having
common control or direction and a question arises as to whether
or not they should be declared for all purposes of the Code to
be a single employer and a single federal work, undertaking or
business, an application under section 133 of the Code shall be
dated and shall'contain the following:
Under section 118 of the Code, the Board has,
in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and
compel them to give oral or written evidence on oath and to
produce such documents and things as the Board deems
requisite to the full investigation and consideration of any
matter within its jurisdiction that is before the Board in the
proceeding;
(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
(i) a person is an employer or employee,
(ii) a person performs management functions or is
employed in a confidential capacity in matters relating to
industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers' organ
ization, a trade union or a council of trade unions,
(v) a group of employees is a unit appropriate for collec
tive bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by
a collective agreement, and
(viii) a collective agreement is in operation.
Furthermore, under section 119 the Board may
review, rescind, amend, alter or vary any order or
decision made by it. Section 121 allows the Board
to exercise such powers and perform such duties as
are conferred or imposed upon it by, or as may be
incidental to the attainment of the objects of, this
Part.
It should be pointed out that section 119 of the
Code states that the Board may rehear any
application and that section 32 of the Regulations
lays down the application procedure. Section 33 of
the Regulations also prescribes a procedure for an
application made under section 133 of the Code.
However, section 133 does not require that the
Board consider an application, but stipulates that
"where, in the opinion of the Board ... the Board
may ...".
This Court must accordingly conclude that the
Board may, on its own initiative, after giving the
employers a reasonable opportunity to make
representations, declare that these employers
respectively constitute a single employer. As the
proceedings of the Board are pursuant to the
powers conferred on it by the Code, the privative
clause contained in section 122(2) of the Code
forbids any court to restrain such proceedings by
prohibition.
If, further to its inquiries and hearings, the
Board decides that the two applicants are respec
tively a single employer for the purposes of section
133 of the Code, and if the applicants wish to
question such a decision, they must comply with
section 28 of the Federal Court Act.
ORDER
The application is dismissed with costs.
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.