A-553-76
Mike Sheehan (Applicant)
v.
Upper Lakes Shipping Ltd. and the Canada
Labour Relations Board (Respondents)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, September 27 and 28, 1977.
Judicial review — Labour relations — Unfair labour prac
tices — Error on face of record of Canada Labour Relations
Board decision — Respondent's refusal to hire applicant
because of expulsion from Union — Board decided complaint
untimely, and also not in violation of Canada Labour Code
prohibition — Whether or not the Board erred — Canada
Labour Code, R.S.C. 1970, c. L-1, (as amended by S.C. 1972,
c. 18), ss. 184(3)(a)(ii), 187(2), 188(3) — Interpretation Act,
R.S.C. 1970, c. 1-23, s. 24(1) — Federal Court Act, s. 28.
This section 28 application seeks to set aside a decision of the
Canada Labour Relations Board which dismissed applicant's
complaint against Upper Lakes Shipping Ltd. The complaint
alleged that the company refused to hire him because of his
expulsion from the S.I.U. and later the C.M.U. — both in the
1960's—contrary to the prohibition in section 184(3)(a)(ii) of
the Canada Labour Code. Although the Board determined that
the complaint could not proceed because it was filed out of
time, it expressed its views on the merits of the complaint and
found no violation of the prohibition. Applicant submits firstly
that the expulsions must only be motivating factors in refusing
to hire, and not the raison d'être, and secondly, that the
evidence need only disclose that the refusals were in whole or in
part motivated by knowledge of such expulsions.
Held, the application is allowed. Each request for employ
ment and refusal, if in breach of section 184, might have
become the subject of a complaint if made after the coming
into force of section 184 on March 1, 1973. The Board erred in
finding the complaint untimely. Applicant's expulsion from the
S.I.U. and the C.M.U. was a proximate cause of the refusal to
employ. It does not matter that neither Union now represents
the employees of the bargaining unit; each was a union within
the meaning of section 184(3)(a)(ii). While the Canadian
Brotherhood of Railway, Transport and General Workers
Union may not technically be the successor Union to the
C.M.U. or have merged with it, that does not mean that the
expulsions from the earlier unions render section 184(3)(a)(ii)
inapplicable.
R. v. Bushnell Communications Ltd. (1974) 1 O.R. (2d)
442; and (1975) 4 O.R. (2d) 288, agreed with. Central
Broadcasting Company Limited v. Canada Labour Rela
tions Board [1977] 2 S.C.R. 112, applied.
APPLICATION for judicial review.
COUNSEL:
D. Moore for applicant.
E. Rovet for respondent Upper Lakes Ship
ping Ltd.
L. M. Huart for respondent Canada Labour
Relations Board.
SOLICITORS:
Lockwood, Bellmore & Strachan, Toronto,
for applicant.
Stikeman, Elliott, Robarts & Bowman,
Toronto, for respondent Upper Lakes Ship
ping Ltd.
Legal Adviser, Canada Labour Relations
Board, Ottawa, for respondent Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 application seeks to set
aside a decision of the Canada Labour Relations
Board [(1977) 17 di 14] issued on July 27, 1976
which dismissed the applicant's complaint against
the respondent, Upper Lakes Shipping Ltd., (here-
inafter referred to as "the Company"), alleging a
violation by the Company of section 184(3)(a)(ii)
of the Canada Labour Code, R.S.C. 1970, c. L-1
as amended by S.C. 1972, c. 18 (hereinafter some
times referred to as "the Code"). That section
reads as follows:
184....
(3) No employer and no person acting on behalf of an
employer shall
(a) refuse to employ or to continue to employ any person or
otherwise discriminate against any person in regard to
employment or any term or condition of employment,
because the person
(ii) has been expelled or suspended from membership in a
trade union for a reason other than a failure to pay the
periodic dues, assessments and initiation fees uniformly
required to be paid by all members of the trade union as a
condition of acquiring or retaining membership in the
trade union,
By letter dated May 23, 1974 to the Canada
Labour Relations Board, the applicant alleged,
inter alia, that section 184(3)(a)(ii) had been
violated by officers of the Company "by their
consistent refusal to register me for a job or to
employ me allegedly because of my expulsion for
[sic] the C.M.U." C.M.U. is the acronym used by
the applicant in his complaint, for Canadian Mari
time Union, Canadian Brotherhood of Railway,
Transport and General Workers. The officers of
the Company against whom he made the allega
tions were B. Merrigan, the Vice-President Person
nel of the Company and J. D. Leitch, the Compa-
ny's President. The applicant stated that on April
26, 1974 and May 3, 1974, Merrigan and Leitch,
respectively, had refused to employ him as an
unlicensed seaman aboard vessels owned by the
Company because he had been expelled from a
trade union for reasons other than non-payment of
dues contrary to section 184(3)(a)(ii) of the Act.
References were made in the complaint to previous
meetings between the applicant and Messrs. Mer-
rigan and Leitch. Allegations of breaches of other
sections of the Act by Local 401, Canadian Mari
time Union, Canadian Brotherhood of Railway,
Transport and General Workers Union were also
included in the complaint.'
The Company, through its solicitors, on June 13,
1974 filed a reply to the complaint with the Board
denying the allegations contained therein. In it,
particulars of all meetings between the applicant
and Messrs. Merrigan and Leitch were requested
and it was submitted that the complaint was
untimely because it was in violation of section
187(2) of the Code. The applicable subsections of
section 187 read as follows:
187. (1) Subject to subsections (2) to (5), any person or
organization may make a complaint in writing to the Board
that an employer, a person acting on behalf of an employer, a
trade union, a person acting on behalf of a trade union or an
employee has failed to comply with section 148, 184 or 185.
(2) Subject to this section, a complaint pursuant to subsec
tion (1) shall be made to the Board not later than ninety days
from the date on which the complainant knew, or in the opinion
of the Board ought to have known, of the action or circum
stances giving rise to the complaint.
' The Board's decision dismissing the complaint as against
the Union was the subject of another section 28 application, see
page 847 infra, which was heard following the completion of
argument on this application.
To appreciate the basis for this submission it is
necessary to refer briefly to the history of the
relations between the applicant, the Company and
the unions which have been involved from time to
time.
The testimony reveals that the applicant has
been a seaman since the age of 14, both in the
United Kingdom and Canada. He has sailed on
trawlers, deep sea passenger and salvage vessels,
naval ships and Great Lakes vessels. Shortly after
his discharge from the Royal Canadian Navy after
World War II, he became involved in the Canadi-
an trade union movement as an official in the
Seafarers International Union (hereinafter
referred to as the "S.I.U.").
In or about 1961, the applicant was expelled
from the S.I.U. due to his involvement in the
formation of the Canadian Maritime Union (here-
inafter referred to as the "C.M.U.") of which the
applicant was its first president. The C.M.U.
became the bargaining agent representing unli
censed seamen employed by the respondent Com
pany. In 1964 the applicant was expelled from the
C.M.U. Prior thereto he had become well
acquainted with J. D. Leitch during the period
when C.M.U. was endeavouring to represent the
Company's employees and, of course, Mr. Leitch
became aware of the applicant's expulsions from
both Unions. The evidence also discloses that these
facts were well known to Mr. Merrigan.
During the late 1960's and early 1970's the
applicant unsuccessfully attempted, from time to
time, to obtain employment as an unlicensed
seaman with the Company and a number of other
ship owners. Also in an amended complaint, in
which the applicant gave a number of particulars
in respect of his allegations, he stated that he had
met with Mr. Leitch on six occasions prior to 1974
and had always been told by him that the Com
pany would not hire him under any circumstances.
On May 3, 1974 the applicant, having made an
appointment to do so, met with Mr. Leitch in his
room in a Toronto hotel. In his complaint he
comments as follows concerning that meeting:
,On May 3, 1974, I met with him in the Royal York Hotel,
Toronto, I had phoned him about a week before and asked for a
meeting with him because I told him I could not get anywhere
with his "Personnel" department. He agreed to meet me and he
did meet me. At the meeting he passed the usual compliments
regarding how fit I looked. He said, "what are you doing?". I
replied "nothing, that is why I want to see you, I want to get
back on board a ship, that is where I belong. I feel you owe me
something, after all, it was me who really got your ships sailing
and broke the S.I.U. strangle hold on your company. I only
have about five years to go to get my Canada Pension Plan, and
I want the opportunity to go back to my industry, sailing". He
replied, "if you got back on our ships you would be after the
Union, we do not want you rocking the boat, therefore we will
keep you off our ships at any cost. I will use all my resources to
keep you off, but apart from that if there is anything else I can
do I will be prepared to help you".
I then told him I was applying to the Canada Labour
Relations Board to review my case because it was outright
discrimination. He said "you may have a 50-50 chance of
winning", I replied "I think I have a 100% chance." We then
parted in a friendly manner.
The applicant also stated in his complaint that
since 1963 he had met on many occasions with Mr.
Merrigan and had always been told that there was
absolutely no chance of his ever sailing on any of
the Company's vessels.
At the commencement of the proceedings before
the Board both the Company and the Union sub
mitted that because the alleged violation had
occurred initially as early as 1963, before the
enactment of the Canada Labour Code, which
came into force on March 1, 1973, it could not be
the subject of a complaint under section
184(3)(a)(ii). Even if that submission was not
accepted, it was said that the complaint was made
later than ninety days from the date on which the
applicant knew or ought to have known the acts or
circumstances giving rise to the complaint. Coun
sel for the Company took the position that since
the requests for employment commencing in 1963
through to May 1974 and the refusals to employ
made on each occasion were substantially the
same, the applicant knew of the acts complained of
long before he filed his complaint of an unfair
labour practice. The Board deferred its decision on
this submission until after the completion of the
hearing on the merits of the complaint. In its
reasons for judgment dated July 27, 1976 [(1977)
17 di 14 at pp. 20-21], the Board dealt with the
issue of timeliness as follows:
]. Timeliness
In its interim decision the Board ruled that the preliminary
objections raised by the respondent-employer be held in abey
ance until after the hearing had been completed and the Board
had been apprised of the facts underlying the complaint. This
ruling reflected the Board's determination to allow a complai
nant an opportunity to present his case to the Board unless it
was clearly established that his complaint was totally without
merit or was otherwise barred by the provisions of the Canada
Labour Code (Part V—Industrial Relations).
Having now heard the evidence, the Board is satisfied that
the complaint of Mr. Sheehan is indeed untimely in that the
incidents complained of cannot, in the circumstances, be con
sidered separately and are no more than the continuation of a
situation which had arisen in the early 1960's and which has
remained substantially unchanged.
Although the Board is also of the opinion that paragraph
118(m) of the Code does empower it to enlarge the time for
filing complaints, this paragraph cannot be read as allowing the
Board to accept complaints based on a situation which arose
before the coming into effect of the relevant sections of the
Code, i.e., prior to March 1, 1973.
With great respect, I am of the opinion that the
Board was in error in so finding. In the first place
since the prohibitions embodied in section 184 did
not come into force until March 1973, there could
not have been an offence committed contrary
thereto until after that date. Thus, in my view,
what had happened before that date could have no
possible bearing on a violation of the prohibition
committed thereafter. If what was done after the
enactment of the statute was an offence the fact
that exactly the same thing could have been done
before its enactment with impunity, does not make
it any less a violation of the statute. Moreover,
clearly, in my view, each request for employment
and refusal, if in breach of section 184 might have
become the subject of a complaint. Since, in this
case, the complaint was made on May 23, 1974 in
respect of the alleged refusals to employ the appli
cant on April 26, 1974 and May 3, 1974, it was
not untimely and the Board erred in finding that it
was.
Notwithstanding the Board's determination that
the complaint could not proceed because it was
filed out of time, it chose to express its views on
the merits of the unfair labour practices complaint
and found that the Company had not by its actions
violated the prohibition contained in section
184(3)(a)(ii) of the Code. It was stated on page 21
of the reasons:
After reviewing the evidence, the Board is satisfied that Mr.
Leitch and Mr. Merrigan did not, at the meetings held in April
and May 1974, refuse to employ Mr. Sheehan because he had
been expelled from the S.I.U. or the C.M.U. for a reason other
than the non-payment of the regular dues. Therefore, the Board
finds that the respondent-employer has not failed to comply
with the provisions of subparagraph 184(3)(a)((ii) of the
Canada Labour Code (Part V—Industrial Relations).
Although there can be no doubt that both Mr. Leitch and
Mr. Merrigan knew Mr. Sheehan very well and were fully
aware of his past involvement with the Canadian Maritime
Union, the Board is nonetheless satisfied that their decision to
refuse to employ Mr. Sheehan as a sailor on board the respond-
ent-employer's ships does not turn on Mr. Sheehan's expulsion
from the C.M.U. and from the S.I.U.
The applicant's submission is based on two
propositions.
First, the proper question to be put to determine
whether or not the refusals of Mr. Merrigan or
Mr. Leitch, acting in their capacities as senior
officers of the Company, to employ the applicant
constitute breaches of section 184(3)(a)(ii) is not
whether such refusals were because the applicant
had been expelled, but is whether the expulsions
from the Unions were motivating factors in the
determination not to employ him.
Second, if it is accepted that the latter is the
proper question, then the question to be asked is,
does the evidence disclose, in this case, that the
refusals were, in whole or in part, motivated by the
knowledge of such expulsions?
In respect of the first proposition, it seems to me
that regard should be had to the decision of
Hughes J. of the High Court of Justice of Ontario
in R. v. Bushnell Communications Ltd. (1974) 1
O.R. (2d) 442. In that case the accused had been
charged under section 110(3) of the Code as it
read in February 1973. Its wording, so far as is
necessary for these reasons, is as follows:
110. ...
(3) No employer, and no person acting on behalf of an
employer, shall
(a) refuse to employ or to continue to employ any person, or
otherwise discriminate against any person in regard to
employment or any term or condition of employment because
the person is a member of a trade union, or .... [The
underlining is mine.]
It will be seen that this wording is identical to
the wording of section 184(3)(a) up to and includ
ing the word "because". That being so, it would
appear that the reasoning of Hughes J. is appli
cable to the case at bar, notwithstanding that the
Bushnell case deals with a charge laid against the
Company with the permission of the Minister of
Labour, as then permitted in the predecessor sec
tion to section 184, rather than with a complaint of
an unfair labour practice made to the Board. At
page 447 of the report he made the following
finding:
In considering an enactment devoid of the words "sole rea
son" or "for the reason only" applied to the act of dismissal and
resting only on the word "because", the Court must take an
expanded view of its application. If the evidence satisfies it
beyond a reasonable doubt that membership in a trade union
was present to the mind of the employer in his decision to
dismiss, either as a main reason or one incidental to it, or as one
of many reasons regardless of priority, s. 110(3) of the Canada
Labour Code has been transgressed.
I agree with Mr. Justice Hughes' opinion of the
meaning of the section and I do not think that his
reasoning is inapplicable to the case at bar because
of his comment on the burden of proof arising
from the quasi-criminal nature of the charge in the
Bushnell case.
Mr. Justice Hughes' decision was upheld by the
Ontario Court of Appeal, the judgment of which is
reported in (1975) 4 O.R. (2d) 288 where at page
290, Evans J.A., as he then was, had this to say:
We agree in substance with the result at which Hughes, J.,
arrived and in our view the question which the Court must
determine is "What motivated the employer to take the action
which he in fact took with respect to the employee?" If it is
found that union membership is a ground for the action taken
then a conviction should be made. Otherwise an acquittal. It is
entirely a question of fact in each case for the trial Judge to
determine, after assessing the credibility of the various wit
nesses, whether union membership was a cause of the action
taken.
In our view, to create an offence under s. 110(3) of the
Canada Labour Code, R.S.C. 1970, c. L-1, union membership
must be a proximate cause for dismissal, but it may be present
with other proximate causes.
In the result, the appeal will be dismissed with costs.
It is very clear from the evidence in this case
that one of the factors taken into account by the
officers of the Company in refusing to employ the
applicant was the expulsion of the applicant from
the S.I.U. and later from the C.M.U. The expul
sions were proximate causes of the refusal to
employ. It matters not, in my view, that neither
Union now represents the employees of the bar
gaining unit. Each was "a union" within the mean
ing of section 184(3)(a)(ii) and while the Canadi-
an Brotherhood of Railway, Transport and
General Workers Union may not technically be
the successor Union to the C.M.U. or have merged
with it (and on that there is no direct evidence)
that does not mean that the expulsions from the
earlier Unions render inapplicable subparagraph
(a)(ii) of section 184(3).
Having reached this conclusion, the second
proposition can, in my opinion, be readily disposed
of. The applicant made allegations in his com
plaint concerning refusal of employment with the
Company by Messrs. Merrigan and Leitch. Both
the applicant and Mr. Merrigan testified at length
in the hearing before the Board. Mr. Leitch did
not testify at all so that none of the allegations
made by the applicant in respect of his meeting
with Mr. Leitch was rebutted. The complaint
clearly spelled out the applicant's contention that
he was unable to register at the hiring hall, which
is a condition of employment, and that this was
due to his expulsion from both the S.I.U. and the
C.M.U. Clearly then, this was at least "a reason"
that the Company would not hire him.
The applicant's testimony affirmed the com
plaint and provided some details of his contention.
That contention, at least in respect of Mr. Leitch's
position in the matter, remains unchallenged and
uncontradicted.
Section 188(3) of the Code reads as follows:
188. ...
(3) A complaint in writing made pursuant to section 187 in
respect of an alleged failure by an employer or any person
acting on behalf of an employer to comply with paragraph
184(3)(a) is evidence that the employer or person has failed to
comply with that paragraph.
Counsel for the applicant submitted that this
section must be read with section 24(1) of the
Interpretation Act, R.S.C. 1970, c. I - 23:
24. (1) Where an enactment provides that a document is
evidence of a fact without anything in the context to indicate
that the document is conclusive evidence, then, in any judicial
proceedings, the document is admissible in evidence and the
fact shall be deemed to be established in the absence of any
evidence to the contrary.
The Supreme Court of Canada was required to
examine this contention, in another context, in
Central Broadcasting Co. Ltd. v. Canada Labour
Relations Board [1977] 2 S.C.R. 112. Mr. Justice
de Grandpré for the Court held at pages 117-118
of his reasons that:
The complaint is admissible in evidence and, if it stands alone,
the fact therein alleged "shall be deemed to be established". 1
other evidence is adduced, then the Board has the duty to look
at all the evidence and to weigh both the complaint and all the
other material, written or oral.
Then at pages 118-119 in discussing a submis
sion as to whether or not there was a presumption
that the facts in the complaint were to be accepted
if, on the balance, they were not rebutted, he had
this to say:
Reading together s. 188(3) of the Canada Labour Code and s.
24(1) of the Interpretation Act, I am satisfied that there is no
onus against the employer whenever some evidence is adduced
in addition to the complaint; in that situation, to reach a
conclusion the Board must weigh the whole of the evidence
taking all the circumstances into account. The statute simply
enacts that the fact mentioned in the complaint "shall be
deemed to be established in the absence of any evidence to the
contrary". If evidence to the contrary is presented by any of the
parties, there is no justification for the Board to conclude that,
should on all of the evidence the scale be evenly balanced, the
complaint must be considered as having been established. Such
a conclusion would amount to a statement that an onus exists
against the employer and the Code does not permit of such a
conclusion.
No question of onus was raised in this case nor
were the allegations in respect of Mr. Leitch's part
in the proceedings challenged in the only way
really possible, viz. by calling Mr. Leitch as a
witness. Thus, there was no contrary evidence for
the Board to weigh before reaching its decision
and, by virtue of the sections of the two statutes
above referred to, the facts mentioned in the com
plaint, as they relate to Mr. Leitch, must be
deemed to have been established. Since these facts
reveal that one of the motivating factors in the
refusal of the Company to employ the applicant
was his expulsion from the S.I.U. and later from
the C.M.U. this motivating factor must be deemed
to have been established and the Company was
thus guilty of an unfair labour practice under
section 184(3)(a)(ii).
Because of this conclusion, it is unnecessary to
examine and to comment upon the remainder of
the errors which the applicant contended were
committed by the Board.
Accordingly, the section 28 application should
be allowed, the Order of the Board issued on July
27, 1976, in so far as it pertains to the respondent
Company, should be set aside and the matter
should be referred back to the Board for disposi
tion pursuant to section 189 of the Code on the
ground that the Company has failed to comply
with section 184(3)(a)(ii) of the Code.
* * *
HEALD J.: I concur.
* * *
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.