A-319-76
Northern Telecom Limited (formerly Northern
Electric Company Limited) (Applicant)
v.
Communications Workers of Canada (Respond-
ent)
and
David P. Thompson et al. (Intervenors)
and
Canada Labour Relations Board (Tribunal)
Court of Appeal, Jackett C.J., Pratte J. and
MacKay D.J. — Toronto, January 25 and 26,
1977.
Judicial review — Union certification — Application to set
aside Canada Labour Relations Board certificate — Whether
Board acted ultra vires — Whether Board erred in law or in
fact — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 2, 108,
118(1)(p) and 126(1) (as amended by S.C. 1972, c. 18) — The
British North America Act, ss. 91 and 92(10).
Applicant claims that Canada Labour Relations Board had
no jurisdiction to order that the respondent be certified as a
bargaining agent because the evidence before it did not disclose
that the persons involved fell into any of the categories men
tioned in paragraph (10) of section 92 of The British North
America Act. The applicant also alleges that in making its
decision the Board erred in law in assessing the majority status
of the respondent and also erred in not holding that the
members of the unit certified were persons performing manage
ment functions.
Held, the application is dismissed. The allegation that the
Board acted ultra vires is based on the assumption that it is a
condition precedent to the exercise of its functions that the
Board have before it evidence that the facts are such as to
enable it to make findings of fact giving it jurisdiction to grant
an application for certification. The question whether an order
falls within the ambit of a tribunal's authority does not depend
on what the tribunal finds with regard to jurisdictional facts; if
the facts are such as to give a tribunal jurisdiction, an order
made within the ambit of that jurisdiction is valid even if there
was no evidence of such facts before the tribunal when it made
its order. Section 118(1)(p) of the Canada Labour Code gives
the Board power to decide questions in a proceeding "before it"
but does not give it power to decide whether a case is lawfully
"before it".
As to the allegations of errors by the Board, even if they
must be satisfied that the majority of the employees in the unit
wish to have the trade union represent them as of the date of
certification, no evidence has been adduced to show that it did
not satisfy itself on this point. There is also no persuasive
evidence that the Board made any error in reaching its conclu
sion that the members of the unit certified were not persons
"who perform management functions".
Empire Stevedoring Company Ltd. v. International Long-
shoremen's and Warehousemen's Union Ship and Dock
Foremen, Local 514 [1974] 2 F.C. 742, applied.
APPLICATION for judicial review.
COUNSEL:
Paul F. Renault, Q.C., and Robert Monette
for applicant.
Aubrey E. Golden and Maurice A. Green for
respondent.
No one appearing for intervenors.
M. Huart for Tribunal.
SOLICITORS:
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for applicant.
Golden, Levinson, Toronto, for respondent.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for intervenors.
Canada Labour Relations Board for
Tribunal.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside an order of the Canada Labour Relations
Board certifying a bargaining agent under Part V
of the Canada Labour Code.
The first ground upon which the applicant, by
this section 28 application, seeks to have the cer
tification order referred to therein set aside, is, in
effect, that the Board acted beyond its jurisdiction
in making that order. We indicated to counsel for
the respondent that we did not require to hear
them with regard thereto.
In effect, this ground was based on the conten
tion that the evidence before the Board did not
disclose "that the Applicant and the persons cov
ered by the proceedings, nor their Works and/or
Undertaking fall into any of the categories con
tained in Section 91 of the British North America
Act nor in any of the categories mentioned in
Paragraph 10 of Section 92 of the said British
North America Act."' See section 108 of the
Canada Labour Code, as amended by chapter 18
of the Statutes of 1972 and section 2 of the
Canada Labour Code, R.S.C. 1970, c. L-1.
The contention was based on the assumption
that it is a condition precedent to the exercise by
the Board of its jurisdiction to grant an application
for certification that it have before it evidence
establishing that the facts are such as to enable it
to make findings of facts giving it jurisdiction to
grant the application. I do not accept that assump
tion. In my view, the question whether an order
falls within the ambit of a tribunal's authority, in
the absence of special authority vested in it to
determine itself the facts giving it jurisdiction,
does not depend on what the tribunal finds with
regard to jurisdictional facts nor upon what evi
dence, if any, was before the tribunal of such
jurisdictional facts. If the facts, as made to appear
to a reviewing court, are such as to give a tribunal
jurisdiction, an order made within the ambit of
that jurisdiction must be found to be valid even if
there were no evidence of such facts before the
tribunal when it made the order. Conversely, if the
facts, as made to appear to a reviewing court, are
such as to show that the tribunal had no jurisdic
tion to make an order, the order must be found to
be a nullity even though, when the tribunal made
the order, it had evidence before it that appeared
to establish facts that would have given it jurisdic
tion to make the order.
When, therefore, an applicant seeks to have a
reviewing court set aside an order as having been
made outside the scope of its jurisdiction, the onus
is on the applicant to ensure that evidence of the
facts necessary to support the application is before
the Court. (Whether a reviewing court could, in
the absence of agreement, act on evidence that was
put before the tribunal, if the question had been in
fact treated as being in issue before the tribunal,
need not be considered at this time because the
jurisdictional facts were not put in issue before the
' See paragraphs 7 and 10 of the applicant's memorandum in
this Court.
Board although the applicant reserved the right to
challenge jurisdiction at a later stage.)
It follows that, in this case, for the applicant to
succeed on the jurisdiction point, there must be
evidence before this Court upon which this Court
can decide that the certification order was outside
the scope of the Board's jurisdiction, and it also
follows that in this case the onus was on the
applicant to ensure that such facts were made to
appear before this Court. The applicant did not
seek to adduce any evidence on the point in this
Court and abstained from putting the matter in
issue before the Board. There is, therefore, no
evidence upon which this Court can find that the
Board acted beyond its jurisdiction.
I have not overlooked the reference by counsel
for the applicant to section 118(1)(p) and section
108 of the Canada Labour Code. In my view,
section 118(1)(p) gives the Board power to decide
any question arising in a proceeding that is "before
it" but does not give the Board power to decide
whether a particular case is lawfully "before it". It
cannot, therefore, be regarded as impliedly making
such a decision by the Board a condition precedent
to the exercise by the Board of its jurisdiction to
make a certification order.
I have not, moreover, overlooked the existence
of evidence put before the Board in connection
with the issues that were raised before the Board
from which, taken by itself, some conclusions
might be drawn with regard to the nature of that
part of the applicant's business operations that are
involved in this matter. In my view, in the absence
of agreement that such evidence reveals an accu
rate picture of such operations from a jurisdiction
al point of view, it having been led before the
Board in respect of entirely different issues, it
cannot be used by this Court, as a reviewing court,
to make findings of fact on the jurisdictional ques
tion. In my view, such a use of evidence led with
reference to one issue with which a hearing is
concerned to make findings on an issue with which
the hearing was not concerned is not, in the
absence of agreement or other special circum-
stances, sound. 2 It might be added that, in my
view, the facts raise a very difficult question from
a jurisdictional and constitutional point of view,
upon which this Court should not make a pro
nouncement in the absence of a full exploration of
the facts relating to the jurisdictional and constitu
tional question as such. 3
There is a second ground put forward by the
applicant in respect of which counsel for the
respondent were not called on. This ground is set
out in the applicant's memo as follows:
21. In making its decision and order, the Board also erred in
law in assessing the majority status, if any, of the Respondent
at the time of the filing of the application for certification and
not at the time of its decision which occurred exactly two (2)
years later, and more than a year after the final hearing;
This ground is based on the contention that the
Canada Labour Code requires, as a condition
precedent to making a certification order (section
126(1)), that the Board be satisfied that a majori
ty of the employees in the unit wish to have the
trade union represent them as of the time that it
makes its certification order and not as of the time
that the application for that order was made.
Assuming, without deciding, that that contention
is sound, I am of the view that the applicant has
not shown that the certification order should be set
aside on this ground. Whatever be the time as of
which the wishes of the majority must be ascer
tained, it is common ground that the decision must
be based on facts that precede that time. It is true
that the only material relevant to the question as
to the employees' wishes of which mention is made
in the record is based on facts that preceded the
2 This is illustrated in this very case by the fact that the
applicant bases itself in part on an allegation that the Board
took into account facts established in another proceeding where
the jurisdictional question with which we are concerned was
litigated, which facts were not apparently established before the
Board. In my view, it was quite appropriate for the Board to
take other proceedings into account in deciding what position it
would take with regard to the question whether it should
proceed on the assumption that it had jurisdiction. That is quite
a different matter from exercising a jurisdiction (that it did not
have) to decide whether it had jurisdiction to make the certifi
cation order.
3 Evidence concerning facts that were not being decided by
the tribunal but are relevant to jurisdictional or other questions
that were not before the Board but are raised by the section 28
application could have been added to the case in this Court
under Rule 1404(2).
application and it is also true that there was a
lapse of over two years before the certification
order was made. On the other hand, there is
nothing to show that the Board did not take into
consideration any changes that were brought to its
attention and no application was made to the
Board to make any inquiry as to the possibility of
other changes. 4 While a lapse of more than two
years seems like a long time, the matter was one,
among many, with which the Board had to concern
itself; and there is no basis upon which, in my
view, this Court can conclude that this particular
lapse of time was such as to establish that the
certification order was the result of a view as to
the requirement of section 126 other than that
contended for by the applicant.
With regard to the final question, namely:
whether the Board erred in not holding that the
members of the unit certified by the order of the
Board under attack are persons "who perform
management functions", I have not been persuad
ed that, having regard to the views expressed in
this Court in Empire Stevedoring Company Ltd. v.
International Longshoremen's and Warehouse-
men's Union Ship and Dock Foremen, Local 514, 5
the Board made any error of principle in reaching
its conclusion.
I am of the view, therefore, that the section 28
application should be dismissed.
* * *
PRATTE J. concurred.
* * *
MACKAY D.J. concurred.
4 I this connection, it is to be noted that the mathematical
calculation contained in the applicant's memorandum in this
Court depends, in part, upon information that was not in the
record of what was before the Board.
5 [1974] 2 F.C. 742.
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