Hyperlawhypertext legal database Canada Labour Relations Board v. Halifax Longshoremen’s Association, Local 269 [1983] 1 SCR 245

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Canada Labour Relations Board v. Halifax Longshoremen’s Association, Local 269

[1983] 1 SCR 245 Court SCC Decision date 1983-03-01 Docket 16625, 16849 English

PartiesCanada Labour Relations Board (Respondent) Appellant·David C. Nauss (Respondent) Appellant·Halifax Longshoremen’s Association, Local 269 of the International Longshoremen’s Association (Applicant) Respondent·Peter H. Roberts (Respondent) Respondent·Maritime Employers’ Association (Respondent) Respondent

Counsel (4)
Ian Scott, Q.C., and Eric B. Durnford, for the appellant the Canada Labour Relations Board.
Robert Monette, for the respondent Maritime Employers’ Association.
Solicitor for the appellant the Canada Labour Relations Board: Eric B. Durnford, Halifax.
Solicitor for the respondent Maritime Employers’ Association: Robert Monette, Montreal.

Judges Laskin, Bora; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha

Delivered by Judgment of the Court

On appeal from Federal Court of Appeal

Subjects Labour law

Contents

Judgment of the Court

The judgment of the court was delivered by

THE CHIEF JUSTICE—These two appeals by the Canada Labour Relations Board were heard together through a joint submission by the same counsel. They each raise a single legal point, namely, whether the Federal Court of Appeal, differently constituted in part, properly set aside, under two separate s. 28 applications under that Court’s reviewing power, a portion of the Board’s order directing the same remedy in each case for the same breach of s. 161.1 of the Canada Labour Code. No issue arises here as to the propriety of the Board’s finding of a breach, the same breach in each of the two cases, of s. 161.1 of the Canada Labour Code. What precipitated the appeal here was the refusal of the Federal Court of Appeal in each case to sustain a certain portion of the remedy for the breach directed by the Board under the powers confided in it under s. 189 of the Code.
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A unique feature of these appeals is that neither of the unions who were applicants for review by the Federal Court of Appeal, and who succeeded there on the matter now in issue, participated in the appeals here. Nor did the employers’ association, the same association in each case, who were on the record in the proceedings before the Board and before the Federal Court of Appeal in each case. Again, there is the fact that neither of the four employees whose complaints in the two cases brought the allegation of breach to the Board (David Nauss and Peter Roberts in the one case and Ronald Lockhart and Charles Wilson in the second case) participated in the appeal here, although they were respondents before the Federal Court of Appeal in each case. Counsel for Nauss was present on his behalf at the hearing in this Court and so was counsel for the Maritime Employers’ Association but, as I indicated, neither participated. In brief, the impugned orders of the Federal Court of Appeal were challenged only by the Board as involving an erroneous finding of a jurisdictional error. This, of course, did not absolve this Court from examining the Board’s position. Appeals are not won here by the failure of respondents to appear, nor will the Court deny a hearing to an appellant unless it appears that there is no lis or the appellant is otherwise disentitled to proceed. That is not this case.
The Issues before the Board
Section 161.1 of the Code, enacted by 1977-78 (Can.), c. 27, s. 58 was introduced for a special purpose as reflected in its terms. It is of particular application to trade unions who, in association with employers, operate hiring halls which control, subject to what relevant collective agreements may prescribe, employment of union members and of persons seeking employment in the industry. The two longshoremen’s associations against whom the complaints herein were brought, illustrated in their practices the abuses which s. 161.1 sought to eliminate, so far as it could be done while maintaining job referral through the union hiring halls. It was s. 161.1 which undergirded the complaints filed by the respective complainants against the
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Halifax Longshoremen’s Association, Local 269 in the one case and against Local 1764 of the International Longshoremen’s Association in the second case.
Section 161.1 reads as follows:
161.1 (1) Where, pursuant to a collective agreement, a trade union is engaged in the referral of persons to employment, it shall apply, fairly and without discrimination, rules established by the trade union for the purpose of making the referral.
(2) Rules applied by a trade union pursuant to subsection (1) shall be kept posted in a conspicuous place in every area of premises occupied by the trade union in which persons seeking referral normally gather.
(3) Where a trade union to which subsection (1) applies has not established, before the coming into force of this section, rules for the purpose of making the referral referred to in that subsection, the trade union shall establish rules for that purpose forthwith after the coming into force of this section.
(4) In this section, “referral” includes assignment, designation, dispatching, scheduling and selection.
This provision was added to the list of statutory prescriptions, breaches of which the Board was empowered to remedy. It thus joined other mandated terms of the Code which were subject to the Board’s remedial authority, those terms including s. 136.1 (imposing a duty of fair representation of all employees in the bargaining unit) and s. 185 (respecting certain prohibited trade union practices). The remedial power was governed by s. 189 which was cast in the broadest terms, as follows:
189. Where, under section 188, the Board determines that a party to a complaint has failed to comply with… section 136.1, … 161.1, … 185 …, the Board may, by order, require the party to comply with that … section…
…
and, for the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any failure to comply with any provision to which this section applies and in addition to or in lieu of any other order that the Board is authorized to make under this
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section, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of such failure to comply that is adverse to the fulfilment of those objectives.
The complaining persons were respectively a card man (Nauss) who, as a longshoreman, was called to work after union members were so referred; a bullpen longshoreman (Roberts) who, not having a card issued by the union, had a lower priority of referral; and two steamship checkers (Lockart and Wilson) who were also subordinate in referral to union members and were called only after the latter were at work. None of the four complainants were union members within the governing collective agreements in each of the two cases. Although they were paid the same pay once on referred jobs, they were not entitled to pension and associated benefits which only union members enjoyed and, of course, could not participate in the affairs of the unions which governed their livelihoods.
In lodging their complaints, the four complainants sought not only a reform of the job referral system as administered by the two unions, but as well admission to the unions as full members. Although some persons were admitted to union membership, neither of the complainants succeeded in attaining it.
In lengthy hearings by the Board in each case, and in very extensive reasons which gave ample chapter and verse for the unprincipled and discriminatory way in which the job referral system was administered, the Board found that there had been a clear breach of s. 161.1 in each case. These findings were not challenged in the Federal Court of Appeal nor are they open to challenge here. Although it is unnecessary, in view of the extensive record of the violations of s. 161.1 found by the Board, to expand upon them here, some of the Board’s conclusions deserve brief references.
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Thus, in speaking of the Halifax Longshoremen’s Union, the Board said:
This union has been run and behaved more as a privileged exclusive club than a modern trade union. Either it has no lawful by-laws and constitution or its leaders are unaware of them. There are no rules to govern when its executive may or may not act and unelected, unaccountable persons seem to have more control over the union’s affairs than some of its elected leadership. In its critical and central function of day-today dispatch it cannot say whether a rule of seniority applies. Westlake says it does but we were not shown evidence of it having been accepted. It was Westlake’s idea but never approved by the membership but apparently by the executive. It was applied to Percy Carvery but not to Blair Wilson. This is an extremely important matter affecting the daily lives of all members, but it was not even presented to the membership. This environment creates suspicion, apprehension and antagonism where it may not be justified or occur if matters were more open and structured.
…
We find the union has contravened section 161.1 in that it has not established rules and posted them as required. We find those rules must necessarily include rules for attaining union membership and if those rules give priority to card men, which we think reasonable, they must necessarily contain rules against which a card man may know how he keeps or establishes his place on the priority list from time to time. All these rules in themselves must be fair and non-discriminatory. Section 161.1(1) requires a union, once having established rules, to apply them fairly and without discrimination.
In its reasons in the second case, that of Local 1764 of the International Longshoremen’s Association, the Board said this inter alia:
As we said there are no rules to regulate the administration of the union’s referral to employment and naturally they are not posted. Since these complaints some eleven customs have been committed to paper, but they have not been considered and adopted by either the executive or general membership.
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…
The general policy considerations before us have been canvassed in a parallel decision involving another local of the I.L.A. in the port of Halifax (see David Nauss et al., 42 di 55; [1981] 1 Can. LRBR 188). We do not propose to review again what we have said there and in earlier decisions.
There is one point however that does require some attention because of the union’s position in this case. It was implicit in the union’s argument that the union need not formulate written rules as required by section 161.1(3) if the union does not occupy premises described in section 161.1(2). Therefore in making any determination under section 161.1(1) the Board may refer to the unwritten rules or customs.
In our opinion this argument misconstrues the scope of section 161.1. The duty of fair referral “includes assignment, designation, dispatching, scheduling and selection”. This duty is clearly intended by its language and its placement in the Code to extend to all forms of referral, including the simple closed-shop situation. If a union may in any manner effect a referral of a person to employment, pursuant to a collective agreement, the section is applicable. If union membership is part of the assignment, designation, dispatching, scheduling, selection, etc. of a person then there must be rules including rules with respect to acquisition, retention and loss of union membership.
If there are also premises as described in section 161.1(2) then the rules must be posted. In the absence of premises the Board in fashioning a remedy will give effect to the purpose and intent of posting (see Gary Meagher, 41 di 95).
The union has no written rules. That fact alone evidences a contravention of section 161.1. It has no rules for membership, an integral part of its referral system. Its membership selection has been based on a secret ballot in an atmosphere of an exclusive gentleman’s club where some of the decision-makers did not even know the candidates. The union’s actions are so outdated and so far out of touch with a modern appreciation of the important discretion that it is exercising that it is painful to us who deal with other unions on a daily basis. There has not been any effort to formulate objective criteria to determine who shall work and who shall not.
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The union is in blatant contravention of its duty of fair referral and formulation of fair referral rules under section 161.1. We need not go further and make findings with respect to sections 136.1 and 185(f) but the seriousness of the union’s responsibility to members and those seeking work must be impressed upon it for the attainment of the purposes of the Code. In fashioning a remedy this objective outweighs the merits of the employer’s concerns.
I have quoted enough from the Board’s two sets of reasons to show how arbitrary was the administration of the job referral systems by the two unions. Much more is revealed in the Board’s reasons which are spread out in the records produced to this Court, but it is enough to refer to them comprehensively.
The Issue of Appropriate Remedy
In determing what remedy to prescribe for the breach of s. 161.1, the Board had to be concerned not only to rein in the two unions and to require them to conform to the statutory directions, but also to realize the importance of benefiting the complainants who had courageously acted in the interest of all non-union employees and would-be employees. I agree with the Board that it would not be enough in a case of this kind simply to leave the complainants under the cure of a proper job referral system. The Board thus invoked the very wide powers conferred upon it under s. 189 to require the unions “to do or refrain from doing any thing that it is equitable to require [them] to do or refrain from doing in order to remedy or counteract any consequence of such failure to comply that is adverse to the fulfilment of [the] objectives [of s. 161.1]”.
What the Board directed in each case was the following. The direction to the Halifax Longshoremen’s Association was in these terms:
After hearing complaints by David Nauss and Peter Roberts, the Canada Labour Relations Board has decided that Local 269 has not complied with the provisions
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of the Canada Labour Code in the operation of its hiring hall.
To remedy this situation, the Board has ordered the following:
1. David Nauss is to be accepted into the union as a member effective January 15, 1981 upon payment of the $1,000.00 initiation fee.
2. Peter Roberts is to be added to the list of card men.
3. The union is ordered to prepare a set of rules for employment referral, including rules for admission to union membership and issuance of cards before March 1, 1981. Those rules are to be posted on or before March 1, 1981 and to remain posted.
The Canada Labour Relations Board has scheduled a hearing in Halifax from March 30, 1981 to April 3, 1981. At that hearing, the Board will deal with any matters relating to this remedy.
The Board’s direction to the other union was couched as follows:
We direct the union to do the following:
(1) Admit both Wilson and Lockhart as members of the union on or before December 15, 1980.

(1) Admit both Wilson and Lockhart as members of the union on or before December 15, 1980.

(2) Reactivate and seriously pursue the work of the Joint Manpower Committee.
(3) Prepare rules for referral as required by section 161.1 on or before March 1, 1981.

(3) Prepare rules for referral as required by section 161.1 on or before March 1, 1981.

(4) File those rules with the Board and distribute them to all members of the union.
(5) After March 1, 1981 provide any person with a copy of the rules on request.
(6) File all future amendments to the rules with the Board.
(7) Notify all union members that rules are to be formulated and the work must be completed by March 1, 1981.

(7) Notify all union members that rules are to be formulated and the work must be completed by March 1, 1981.

The Board is not issuing a formal order because we do not consider it to be necessary to do so at this time. The Board is scheduling a continuation of this matter to review the effectiveness and compliance with our remedy at a date after March 1, 1981.
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The Federal Court of Appeal
In each of the two cases, while affirming the Board’s direction to the unions in respect of job referral, the Federal Court of Appeal set aside those portions of the Board’s orders that admitted Nauss to union membership and added Roberts to the list of card men and that admitted Lockhart and Wilson to union membership. The Court saw these provisions as exceeding the Board’s jurisdiction, saying that the Board’s remedial authority was limited to the establishment of a proper non-discriminatory job referral system and, in effect, that the Board acted punitively rather than remedially.
It is, of course, true that nothing in the Canada Labour Code gives the Board any general supervisory authority over admission of persons to union membership. However, there is a restricted authority in the Board under s. 189(d) of the Code to make admission orders in respect of breaches of s. 185(f) and (h). It appears that the Federal Court of Appeal was concerned with whether s. 189(d) was not exhaustive of the circumstances in which such an order might be made. There is some warrant for this view, but it seems to me that the remedial authority given to the Board is given under such broad terms under the concluding paragraph of s. 189 as not to exclude it in a special case, and it is this kind of case that was urged upon this Court by counsel for the Board.
Even more in fashioning a remedy conferred in such broad terms is the Board’s discretion to be respected than when it is challenged as exceeding its jurisdiction to determine whether there has been a breach of a substantive provision of the Code. At the same time, equitable and consequential considerations are not to be so remote from reparation of an established breach as to exceed any rational parameters. What we have here is undoubtedly a unique situation to which the Board addressed a remedial authority which is not unquestionable. What we confront then is whether in the particular situation with which the Board was seized, we should be as strict in assessing the
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Board’s powers as we would have been in dealing with the matter at first instance and thus supporting the position taken by the Federal Court of Appeal.
Court Rulings
It is rarely a simple matter to draw a line between a lawful and unlawful exercise of power by a statutory tribunal, however ample its authority, when there are conflicting considerations addressed to the exercise of power. This Court has, over quite a number of years, thought it more consonant with the legislative objectives involved in a case such as this to be more rather than less deferential to the discharge of difficult tasks by statutory tribunals like the Board.
I find it necessary to refer only to two fairly recent judgments of this Court to underline our approach. They are Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227 and Teamsters Union Local 938 v. Massicotte, [1982] 1 S.C.R. 710. In both cases privative provisions, as in the present case, protected the statutory tribunals against review save for questions of jurisdiction. In the New Brunswick Liquor case, Dickson J. had this to say for the Court (at p. 233):
The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.
And again (at pp. 235-36):
The rationale for protection of a labour board’s decision within jurisdiction is straight‑forward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its
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labour relations sense acquired from accumulated experience in the area.
The usual reasons for judicial restrain upon review of labour board decisions are only reinforced in a case such as the one at bar. Not only has the Legislature confided certain decisions to an administrative board, but to a separate and distinct Public Service Labour Relations Board. That Board is given broad powers—broader than those typically vested in a labour board—to supervise and administer the novel system of collective bargaining created by the Public Service Labour Relations Act. The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Considerable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met.
In Massicotte, this Court drew upon the observations in the New Brunswick Liquor case and added this summation, referring as well to the judgment of Dickson J. in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382. It said (at p. 724):
What this judgment and that in Nipawin clearly convey is that mere doubt as to correctness of a labour board interpretation of its statutory power is no ground for finding jurisdictional error, especially when the labour board is exercising powers confided to it in wide terms to resolve competing contentions. In so far as the Anisminic and Metropolitan Life Insurance cases deal with the so-called “wrong question” test of jurisdiction, they have no relevance here. It is impossible to say that the Canada Labour Relations Board asked itself the wrong question in any sense of departing from the inquiry in which it was engaged. It addressed itself to the issue raised by the complaint and exercised powers in relation thereto which it clearly had. At bottom, the objection is to the consequential results of that exercise, but this is a long way from any jurisdictional issue.
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There is no doubt that, as already noted, we tread a narrow line and nothing said in this case can be taken to establish any general principle. There may be an area in the law relating to superior court review of other tribunals, judicial as well as administrative, where more fundamental issues arise than arise in the circumstances of these proceedings. No doubt there will be required on occasion some refinement of the proper limits of jurisdictional review where an administrative tribunal, when responding to questions of fact, must construe and apply its constitutive authority, be it contractual or statutory. Nothing herein determined should be read as bearing on such considerations, faced as we are here with a unique and narrow question arising out of the extraordinary framework of these labour relations. The remedial result here is bottomed squarely on the involvement of the complainants in an allegation of breach which was firmly established and which required redress and protection to them as individuals in addition to the redress provided by the Board to other non-union employees.
In these particular circumstances, I would allow the appeals and restore in their entirety the remedial relief ordered by the Board. This is not a. case for costs.
Appeals allowed.
Solicitor for the appellant the Canada Labour Relations Board: Eric B. Durnford, Halifax.
Solicitor for the respondent Maritime Employers’ Association: Robert Monette, Montreal.

Cases cited

Statutes and regulations cited