Labour Relations Board, Saskatchewan v. Dominion Fire Brick and Clay Products Ltd.

J.-This is an appeal by the "Labour Relations Board," established by Chapter 69 of the Statutes of Saskatchewan, 1944, 2nd Session, from the judgment of the Court of Appeal of Saskatchewan dismissing an appeal by the Board from the judgment of Anderson J. in the Court of King's Bench, quashing, in certiorari proceedings, an order of the Board purporting to have been made on April 15, 1946, under powers granted to it by the statute. The Court of Appeal gave effect to a preliminary objection by counsel for the respondent company that the Board had no sufficient interest or status to appeal the judgment of Anderson J. On the appeal to this Court, the additional point was raised that the Board was not a body known to the law and consequently could not appear in any legal proceedings. It will be convenient to consider this last objection first.

The Board is constituted by section 4 of the statute and is to consist of seven members, appointed by the Lieutenant Governor in Council. The majority of the members constitutes a quorum and a decision of the majority of such quorum is the decision of the Board. By section 9 a certified copy of any order or decision of the Board is to be filed in the office of a registrar of the Court of King's Bench and thereupon it becomes enforceable as a judgment or order of the court.

Assuming that the respondent company is right in objecting that the Board is not an entity distinct from its members, I think that it is not for the respondent company at this stage, having chosen to designate them by their collective name and after having obtained a decision in its favour, including an order for the payment of costs, to get rid of them now by such an objection. I think -the language of Lord Lindley in Taff Vale Railway v. Amalgamated Society of Railway Servants (1) may be used with propriety here. After saying that the respondent was not a corporation, His Lordship said: "The use of the name in legal proceedings imposes no duties and alters no rights; it is only a more convenient mode of proceeding than that which would have to be adopted if the name could not be used."

With regard to the ground of decision of the Court of Appeal, it is necessary to refer to certain other statutory provisions. By The King's Bench Act, R.S.S. 1940, Chap. 61, section 2 (14), "party" includes "every person served with notice of * * * any proceedings, although not named in the record". It may be pointed out here that in the notice of motion here in question the Board, as well as the union, are named respondents and, as already mentioned, the Board was served. Accordingly, the Board was a "party" in the Court of King's Bench. By section 6 of The Court of Appeal Act, R.S.S. 1940, Chap 60, it is provided that the Court of Appeal shall have jurisdiction and power, subject to the rules of court, to hear and determine all appeals or motions in the nature of appeals respecting any judgment, order or decision of any judge of the Court of King's Bench.

In Mackay v. International Association of Machinists (2), the defendant association had applied to the Labour Relations Board for an order requiring an employer to refrain from certain alleged unfair labour practices and the Board made an order granting the application. In that case, which was an appeal in certiorari proceedings, Martin C.J.S. said at 260:

Gordon J.A., at 264, said:

In my opinion, the Board was both a proper and a necessary party to the proceedings here in question and, being a party, had the right of appeal to the Court of Appeal and required no further or other status. It is urged that a tribunal charged with the responsibility of deciding as between other persons should have no interest in supporting its decision in a Court of Appeal. However that may be in other circumstances, the argument is irrelevant here in view of the statutory provisions referred to. A number of illustrations could be given where statutory bodies not dissimilar in function to the appellant Board have appeared by counsel to support their decisions. It is sufficient to refer to The King v. Electricity Commis-, sioners (1).

I would accordingly allow the appeal and refer the matter back to the Court of Appeal to be disposed of on the merits.

J.-The Labour Relations Board of Saskatchewan as constituted under The Trade Union Act, 1944 (1944 Statutes of Saskatchewan, ch. 69) made an order dated April 15, 1946, declaring its jurisdiction to determine the proper bargaining unit for the employees at the Dominion Fire Brick and Clay Products, Ltd. Its jurisdiction to do so was questioned before Mr. Justice Anderson who under date of July 16, 1946, directed that the order of the Board be quashed without the issue of a writ of certiorari. The Labour Relations Board appealed from the order of Mr. Justice Anderson to the Court of Appeal, and, upon preliminary objection being taken, the Court held that the Labour Relations Board had no status to appeal because the order of Mr. Justice Anderson did not in any way CA affect the interests of the Board.

In In re Jane McEwen (1), the Board of Review for Manitoba was one of the appellants to this Court from an order of the Court of Appeal in that province directing the issue of a writ of certiorari and that a proposal of the Board dated October 29, 1937, be quashed. An order for payment of costs was made against the Board in the Court of Appeal, as Mr. Justice Anderson did in the case at bar, but the main issue in that case, as here, was the jurisdiction of the Board to make the order, and no question was raised as to the status of the Board of Review as an appellant.

In The King v. London County Council (2), the London County Council had made an order permitting premises to be open for cinematographic entertainments on Sundays and certain holidays. The Divisional Court held that the Council had exceeded its jurisdiction, made absolute a rule nisi for a writ of certiorari and directed that the order should be quashed. The London County Council appealed and the Court of Appeal affirmed the decision of the Divisional Court.

In Hetherington v. Security Export Co. (3) the Provincial Secretary-Treasurer of New Brunswick had signed a distress warrant under sec. 6 of the Liquor Exporters' Taxation Act of that province. The jurisdiction of the Secretary-Treasurer was questioned in an application for a writ of certiorari. The Court of first instance directed the writ of certiorari to issue. The Appellate Division discharged that order. In this Court the decision of the Appellate Division was reversed but was restored by the Privy Council. Throughout these proceedings the Provincial Secretary-Treasurer was both respondent and appellant and no question was raised as to his status to defend his jurisdiction in either capacity.

The record in the Hetherington case (supra), as in The King v. London County Council (supra), is not clear as to the disposition of costs upon the original application. is not, however, suggested in any of the cases that an order directing either the payment of costs or the discharge of any of its duties is essential to give to the judicial body the status to take an appeal.

See also Combe v. De la Bere (1); Stoner v. Fowle (2); Rex v. Electricity Commissioners (3).

The learned judges in the Court of Appeal referred to Board of Education v. Rice (4), where both certiorari and mandamus were granted, and to Local Government Board v. Arlidge (5), where in the Court of Appeal (6), Lord Justice Vaughan Williams concluded his reasons for quashing an order for the issue of a writ of certiorari with a direction that the matter be "sent back to the Local Government Board to be determined in the manner provided by law". In neither of these cases is the status of the respective Boards to appeal discussed and, when considered with the authorities already cited, they do not appear to support the requirement or qualification suggested in the judgment here appealed from.

The application for a writ of certiorari is not an appeal upon the merits. It raises questions as to the legality of the proceedings. Very often, as in this case, it is the jurisdiction of the tribunal to make the order in question. The foregoing authorities indicate that over a long period of time it has been recognized that where the jurisdiction of the body, constituted to discharge judicial functions, is questioned in a superior court, it may defend its jurisdiction and, in the event of an adverse judgment, take an appeal therefrom.