A-552-76
Mike Sheehan (Applicant)
v.
Canadian Brotherhood of Railway, Transport and
General Workers, Canadian Maritime Union,
Local 401, and the Canada Labour Relations
Board (Respondents)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, September 27 and 28; Ottawa,
October 21, 1977.
Judicial review — Labour relations — Union member
expelled from former Union — Employment on ship refused
applicant — Hearing before Canada Labour Relations Board
only as to refusal of employment under s. 184 of Canada
Labour Code — Evidence excluded as to expulsion and denial
of membership in present Union — Violation under s. 185(f) of
Code — Complaints dismissed by Board — Full and proper
hearing denied by Board — Denial of natural justice — Error
in law — Application allowed — Federal Court Act, s. 28 —
Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C.
1972, c. 18, s. 1, ss. 184(3)(a)(ii), 185(f), (g).
This section 28 application is to review and set aside a
Canada Labour Relations Board decision dismissing applicant's
allegations that the Canadian Maritime Union had wrongfully
expelled him in 1964, in violation of section 185(0 of the
Canada Labour Code. A hearing had been held concerning a
section 184 violation, but most evidence relating to the section
185(/) complaint had been excluded. Applicant submits that he
was prevented from adducing evidence and presenting argu
ment germane to the proper determination of the section 185(/)
complaint.
Held, the application is allowed. It is clear from the record in
this hearing that there was not a hearing of the section 185(0
complaint. Some evidence concerning the section 185 complaint
was admitted during the section 184 hearing, but that is no
substitute for a full and proper hearing on the merits of the
section 185 complaint. The Board's section 185(/) decision was
made in a manner that violated the rules of natural justice.
Toronto Newspaper Guild v. Globe Printing Company
[1953] 2 S.C.R. 18, referred to. Board of Education v.
Rice [1911] A.C. 179, referred to.
APPLICATION for judicial review.
COUNSEL:
D. Moore for applicant.
M. W. Wright, Q.C., for respondents Canadi-
an Brotherhood of Railway, Transport and
General Workers, Canadian Maritime Union,
Local 401.
L. M. Huart for Canada Labour Relations
Board.
SOLICITORS:
Lockwood, Bellmore & Strachan, Toronto,
for applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondents
Canadian Brotherhood of Railway, Transport
and General Workers, Canadian Maritime
Union, Local 401.
Legal Adviser, Canada Labour Relations
Board, Ottawa, for respondent Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Canada
Labour Relations Board [(1977) 17 di 14] issued
July 27, 1976, which decision dismissed the appli
cant's complaint against the respondent Union
alleging a violation by that Union of section 185(f)
of the Canada Labour Code, R.S.C. 1970, c. L-1
as amended by S.C. 1972, c. 18, s. 1. Section
185(f) reads as follows:
185. No trade union and no person acting on behalf of a
trade union shall
(J) expel or suspend an employee from membership in the
trade union or deny membership in the trade union to an
employee by applying to him in a discriminatory manner the
membership rules of the trade union;
The applicant, by letter to the Canada Labour
Relations Board, dated May 23, 1974, alleged,
inter alfa, that the respondent Union had violated
the provisions of section 185(f) of the Canada
Labour Code. Applicant's allegation was that the
Canadian Maritime Union, which merged with the
respondent Union in 1970, had illegally expelled
him in 1964, and that such expulsion was a nullity.
Applicant further alleged that on or about April
17, 1974, the respondent Union had refused to
register him for employment or to allow him to
make an application for membership in the
respondent Union, thereby committing a breach of
said section 185(f). In a letter dated June 12,
1974, the respondent denied applicant's allegations
referred to supra.
In addition to the alleged violation of section
185(f) which forms the subject matter of this
section 28 application, the applicant's letter of
complaint of May 23, 1974 above referred to, also
alleged a violation by the respondent Union of the
provisions of section 185(g) of the Canada Labour
Code' and further alleged a breach by Upper
Lakes Shipping Ltd., of the provisions of section
184(3)(a)(ii) of the Canada Labour Code 2 .
The Board commenced to hear these three com
plaints on September 24, 1974. At the outset, the
respondent Union filed, a three-fold preliminary
objection to the Board's jurisdiction. Those objec
tions were as follows:
(a) the complaint is untimely and the Board is
without jurisdiction to entertain it;
(b) only an employee can complain of a viola
tion of section 185(f) and (g). Since the appli
cant is not an employee of Upper Lakes Ship
ping Ltd., he is without status to file such a
complaint; and
(c) applicant's complaint alleges that he was, at
some point, expelled from membership in the
Canadian Maritime Union. That Union no
longer exists, having been replaced as a bargain
ing agent for the employees of Upper Lakes
Shipping Ltd. by Local 401 of the Canadian
Brotherhood of Railway, Transport and General
Workers which has been certified by a Board
decision. Local 401 in no way is a successor to
the Canadian Maritime Union since no merger
or amalgamation ever took place which would
' Section 185(g) reads as follows:
185. No trade union and no person acting on behalf of a
trade union shall
(g) take disciplinary action against or impose any form of
penalty on an employee by applying to him in a dis
criminatory manner the standards of discipline of the trade
union;
2 The Board's decision dismissing the complaint against
Upper Lakes Shipping Ltd. was the subject of another section
28 application (at page 836 supra) which application was heard
immediately before this application by the same panel of this
Court.
make it a successor as that term is defined in the
Canada Labour Code. Accordingly, the Board is
without jurisdiction to entertain subject com
plaint.
Without hearing any evidence, but after pro
longed argument by counsel and other representa
tives of the parties, the Board, on February 26,
1975, [(1975) 9 di 29] issued a preliminary deci
sion in which it directed:
(1) That the hearings continue on the merits of
the complaint under section 184(3)(a)(ii)
against Upper Lakes Shipping Ltd.
(2) That the preliminary objections to the com
plaint alleging a violation of section 185(g) are
valid and that complaint be accordingly
dismissed.
(3) With respect to the complaint under section
185(f), the Board reserved its decision concern
ing the preliminary objections raised by the
respondent Union. The Board stated further
[(1975) 9 di 29 at p. 39]: "The Board also
orders that further hearings with regard to the
said complaint be postponed until after the hear
ing of the complaint filed under section
184(3)(a)(ii) of the Code is completed."
Pursuant to this preliminary decision, the Board
resumed hearings. These hearings, including the
presentation of a large volume of oral and docu
mentary evidence and the submission of oral and
written arguments took some 12 days extending
over a period in excess of one year. The renewed
hearings began on March 24, 1975 and final judg
ment was issued on July 27, 1976.
Applicant's counsel submits that at the outset of
the resumed hearings, there was a discussion be
tween the Board and counsel and other representa
tives of the parties as to the procedure to be
followed and in particular as to the status of the
respondent Union in the hearings against Upper
Lakes Shipping Ltd. In the submission of appli
cant's counsel, it was clear from those discussions
and from the Board's preliminary decision that the
hearings which ensued were to be restricted to a
consideration of those matters relevant to the com
plaints against Upper Lakes Shipping Ltd. under
section 184(3)(a)(ii) of the Code. Applicant's
counsel further submits that this direction and
understanding as to the procedure to be followed
was repeated by the Board on numerous occasions
throughout the hearings and was relied upon by
the applicant during the presentation of his case.
In support of this submission, counsel for the
applicant made numerous references to the tran
script of proceedings before the Board. I do not
propose to quote those references in detail but will
set out herein a few which, to my mind, are
demonstrative of an overwhelming preponderance
of evidence which supports, the applicant's submis
sions in this regard. The Chairman's comments on
page 305, at the outset of the resumed hearings,
make it clear that the proceedings are concerned
with the allegations against Upper Lakes Shipping
Ltd. Then, after the Board had commenced to
hear viva voce testimony, the Chairman said at
page 911, vol. V:
Before proceeding on with the testimony of Mr. Merrigan, I
would like to emphasize our concern that this, at least the
184(3)(a) complaint, be dealt with this week ....
Then, on page 930, one of the party's representa
tives inquired if the Board intended to proceed
with hearing the section 185 charges upon con
cluding the hearing under section 184(3)(a)(ii)
without adjournment. In replying to this inquiry,
the Chairman stated at page 931:
... the way this has been progressing, I [sic] would be highly
unlikely that we will undertake the hearing on the 185 com
plaint this week.
The transcript then proceeds through some 17
additional volumes to volume 22 which contains
the transcript of the last day of hearings on
November 20, 1975. Throughout those volumes,
there are numerous references both by counsel and
other representatives of the parties and by the
Board Chairman to the fact that the hearings are
restricted and confined to the section 184(3)(a)(ii)
complaint. In volume 22, at page 3421 thereof, one
of the party's representatives is seeking to tender
in evidence certain documentation whereupon, at
page 3422, the Board Chairman observes:
Mr. Nicholson, why is this relevant to the complaint under
Section 184(3)(a)?
And then at pages 3583 and 3584, the last two
pages of the transcript, the applicant's counsel is
seeking to clarify what the parameters of his writ
ten submissions to the Board should be. From the
answers given by the Chairman of the Board, it is
clear that all that was in issue, so far as the Board
was concerned, was the section 184 complaint, and
not the section 185 complaint. No further evidence
was taken. Lengthy written submissions were
received from all parties and thereafter, the judg
ment herein impugned was issued on July 27,
1976.
In that judgment, after dealing "in extenso"
with the complaint against Upper Lakes Shipping
Ltd., the Board disposed of the complaint against
the Union with one page of reasons, [(1977) 17 di
14 at pp. 22-23] as follows:
3. The complaint filed against the union
In its interim decision, the Board acknowledged the serious
ness of the preliminary objection raised by the respondent-
union which argued that, since Mr. Sheehan was not an
"employee", he could not invoke the provisions of subsection
185(f) of the Code. Accordingly, it was argued that his com
plaint alleging that the union had failed to comply with the
provisions of the Code in expelling or suspending him for
membership or in denying him membership by applying to him
in a discriminatory manner the membership rules of the trade
union should be dismissed. Again, the Board reserved its deci
sion on this objection.
At this stage in the proceedings, however, the Board feels
that it would not be justified in continuing to hear this com
plaint. Although until now the evidence has dealt mainly with
the determination of the complaint against the employer, it has
also thrown some light on certain facts which are relevant to
the determination of the complaint against the union. The
record now makes it clear that the complainant is not and has
never been a member of the respondent-union. He has not been
expelled from the respondent-union. Further, he has not applied
for membership in the respondent-union. Instead, he attempted
to register with the union hiring hall so as to be referred for a
job on board the ship of the respondent-employer. He was not
allowed to register. In this particular case, the denial of an
opportunity to register at the hiring hall does not amount to a
"denial of membership" within the meaning of subsection
185(f) of the Canada Labour Code.
In view of the above, the Board finds that it must also
dismiss the complaint filed by the complainant against the
respondent union.
It is the submission of applicant's counsel that
because the hearings were concerned only with the
section 184 complaint, he was prevented from
adducing evidence and presenting arguments on
the following issues, all of which, in his submis-
sion, are germane to a proper determination of the
section 185(f) complaint:
(a) applicant's allegation that he had been
denied by the respondent an opportunity to
apply for union membership on April 17, 1974;
(b) respondent Union's normal procedure in
considering membership applications;
(c) whether the "refusal to register" at the
hiring hall could be considered as a denial of
membership in the circumstances of this case;
and
(d) whether the respondent owed any duty to
the applicant under section 143 which would
relate to the complaint under section 185(f).
Applicant's counsel also complains that because
there was really no hearing of the section 185(f)
complaint before the Board, he was prevented
from presenting at least two alternative legal argu
ments to the Board in support of the section 185(f)
complaint. Particulars of those alternative legal
arguments are to be found in paragraphs 15 and
16 of applicant's memorandum.
In my view, the submissions of applicant's coun
sel are well-founded. It is clear from the record in
this hearing that there was not a "hearing" of the
section 185(f) complaint before the Board. In the
hearing of the section 184 complaint against the
Company, the Union's representative was allowed
to attend and participate but time after time
throughout the transcript, objections were made to
the relevancy of testimony on the basis that such
testimony pertained to the section 185(f) com
plaint rather than to the section 184 complaint.
Such objections were upheld by the Chairman who
repeatedly stated that the hearings and the evi
dence were to be confined to the section 184
complaint. It is true that from time to time, some
evidence concerning the section 185 complaint was
admitted at the section 184 hearing, despite the
valiant efforts of the Chairman to the contrary.
However, by no stretch of the imagination can
such a circumstance involving partial and frag
mentary evidence, be allowed as a substitute for a
full and proper hearing on the merits of the section
185 complaint. The audi alteram partem rule is
designed to ensure fairness and requires that the
decision-maker act in good faith and fairly listen
to both sides 3 . On the record in this case, I am
satisfied that the requirements of the audi.alteram
partem rule have not been met so far as the section
185(f) complaint is concerned. While it is true that
the Board devoted some 12 days of hearing and
several hundred pages in the transcript to the
section 184 complaint, it is also true that they
decided the section 185(f) complaint without any
proper hearing at all. It appears that, because of
the voluminous transcript involved in the section
184 complaint, the Board may have overlooked the
fact that on numerous occasions, by rulings of the
Chairman, those hearings were clearly restricted
to the section 184 complaint. It is, accordingly, my
view, that the section 185(f) decision of the Board
was made in a manner which violates the princi
ples of natural justice and must therefore be set
aside and referred back to the Board for a full and
complete hearing on the issues implicit in the
complaint under section 185(f) of the Canada
Labour Code.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
3 See: Toronto Newspaper Guild v. Globe Printing Company
[1953] 2 S.C.R. 18. See also: Board of Education v. Rice
[1911] A.C. 179.
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.