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A-15-78
Canadian Arsenals Limited (Applicant)
v.
Canada Labour Relations Board (Respondent) and
Public Service Alliance of Canada (Mis -en- cause)
Court of Appeal, Pratte and Le Damn JJ. and Hyde D.J.—Montreal, September 20; Ottawa, Decem- ber 11, 1978.
Judicial review — Labour relations — Canada Labour Relations Board denied request for hearing that was included with applicant's written submissions — Order rendered with signature of Chairman of the Board only and with no indica tion of the names of other members of the Board — Whether order rendered by Chairman alone and hence void — Whether order vitiated by Board's refusal to grant request for hearing — Canada Labour Code, R.S.C. 1970, c. L-1, s. 115 Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This section 28 application is against a decision of the Canada Labour Relations Board which certified the mis -en- cause Union as the bargaining agent for a group of applicant's employees. Applicant maintains that the decision a quo is void because it was rendered by the Chairman of the Board alone. Its argument rests solely on the facts that the disputed order bears the signature of the Chairman alone and does not indi cate the names of the other members of the Board who may have participated in the decision. Even though the Board had received written statements, applicant maintains that the order was vitiated by the Board's refusal to hold the hearing request ed by applicant before rendering the order.
Held, the application is dismissed. It cannot be inferred from the facts that an order which, from its wording, appears to be an order of the Board, is in fact only a decision of the Chairman. The Board had a duty not to rule without providing applicant an opportunity to present its arguments. Applicant was given such an opportunity. The Board was not required to hold a hearing merely because applicant requested a hearing and the points at issue were questions of fact. The application cannot succeed on the basis of insufficient evidence because it is clear from a perusal of the record that there was evidence on which the Board could reasonably base its decision. In the absence of legislation to the contrary, courts of law, quasi-judi cial and administrative bodies are not required to give reasons for their decisions. The mere fact that an administrative body is subject to the supervisory power of the Federal Court of Appeal does not have the effect of placing that body under an obliga tion to give reasons for its decisions.
APPLICATION for judicial review.
COUNSEL:
P. J. Perreault for applicant.
J. V. O'Donnell, Q. C. for respondent.
P. C. LaBarge for mis -en-cause.
SOLICITORS:
Perreault & Archambault, Montreal, for applicant.
Lavery, Johnston, O'Donnell, Clark, Carrière, Mason and Partners, Montreal, for respond ent.
Honeywell, Wotherspoon, Ottawa, for mis -en- cause.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: This application, made pursuant to section 28, is against a decision of the Canada Labour Relations Board which certified the mis - en-cause Union as the bargaining agent for a group of applicant's employees.
Applicant maintains first, that the decision a quo is void because it was rendered by the Chair man of the Board alone.
According to the Canada Labour Code, R.S.C. 1970, c. L-1, it is the Board, a body for which a quorum of three members is fixed by section 115, which has the power to certify a union as a bar gaining agent. There is therefore no doubt that the decision a quo is void if, as applicant maintains, it was rendered by the Chairman of the Board alone, and it must therefore be determined whether there is any basis for this contention. It rests solely on the following two facts: the disputed order bears the signature of the Chairman alone and does not indicate the names of the other members of the Board who may have participated in the decision. I do not consider that it can be inferred from these two facts that an order which, from its wording, appears to be an order of the Board,' is in fact only a decision of the Chairman. Because of this, I would dismiss the first argument.
' The conclusion of the order begins with the following words:
"ACCORDINGLY, the Canada Labour Relations Board hereby orders that ...".
Counsel for the applicant further maintained that the order was vitiated by the refusal of the Board, before rendering it, to hold the hearing requested by applicant. In order to be in a position to assess the weight of this argument, it is neces sary to review the circumstances in which the disputed order was made.
On November 7, 1977 the mis -en-cause Union asked the Board to certify it as the bargaining agent for security officers (including sergeants and lieutenants) employed by applicant. On November 10, the Board wrote applicant telling it of this application and advising it that it would soon be receiving a visit from an investigator. In this letter, the Board stated the nature of the information needed by the investigator and continued:
[TRANSLATION] Furthermore, if the employer believes that a classification or position is not appropriate for inclusion in or exclusion from the bargaining unit proposed by applicant, it must give the following information regarding each of these positions or classifications:
1. the classification or title of the position;
2. the reason why the employer considers the classification or position is not appropriate for inclusion in or exclusion from the bargaining unit;
3. the details of the duties and responsibilities of the classifi cation or position, in support of the foregoing.
Since the Board is empowered to determine which unit is appropriate for collective bargaining on the basis of the written observations concerning the duties of the position, without necessarily holding a hearing, it needs full, accurate and detailed information so that all the parties in question are fully informed. Please be advised that if the employer does not provide the investigator with such information, we will consider that he does not object to inclusion of the classifications or positions in question in the proposed bargaining unit, and inclusion of such classifications or positions in the proposed bargaining unit will be considered appropriate by the Board.
On November 25, an officer of applicant wrote the Board a letter in which he stated his objection to inclusion of certain employees, the lieutenants, in the proposed bargaining unit:
[TRANSLATION] In any case, if the security officers are "employees" and must be grouped in the applicant union, the employer is of the opinion that the security lieutenants should be excluded from the security officers' bargaining unit, inter alia because they are part of management and because their inclusion would place them in a position of conflicting loyalties between the employer and the security officers, in particular for the following reasons:
(a) it is the lieutenant who organizes, directs and supervises in all respects the operations, the conduct and the work of security officers working on his team;
(b) when the security chief is not present on a given team, it is the lieutenant who has the responsibility of taking and in fact takes disciplinary measures, such as written notices, suspen sions and "dismissals", affecting security officers working on his team;
(c) at regular and specific intervals, lieutenants take part with the security chief in meetings where guidelines for conduct and operating policies of the security service are discussed, developed, established and reviewed;
(d) in matters of hiring and promotion, the lieutenant is a member with the security chief of a committee responsible for interviewing, evaluating and selecting one or more applicants;
(e) the lieutenant prepares a periodic evaluation of the secu rity officers working on his team for purposes of accepting or rejecting an officer during his trial period, and subsequently, for the purposes of promotion, demotion or even dismissal;
(f) the lieutenant is the employer's representative on his work team and, in keeping with this jurisdiction, receives and resolves complaints by security officers on his team;
(g) if the union is certified to represent security officers, the lieutenant will be the employer's representative who will deal with grievances at the initial stage of the grievance procedure, and who will be required, in the great majority of cases, to justify its decision and appear as the employer's principal witness before any eventual adjudication tribunal;
(h) in view of this participation by the lieutenant in manage ment, this position of conflicting loyalties and the requirements of industrial peace it is necessary that he be excluded from the security officers' bargaining unit.
This letter concluded with the following para graph:
[TRANSLATION] Furthermore, the employer asks the Canada Labour Relations Board to hold a hearing during which it will be in a position to make verbal representations and present evidence on all matters affected by this intervention.
The Board acknowledged receipt of this letter on December 1:
[TRANSLATION] We acknowledge receipt of the reply of Canadian Arsenals Limited to the aforementioned application. We note that a hearing was requested.
When a hearing is requested and granted, or when the Board orders one to be held, notice of the time and place of that hearing is sent to the parties involved. When no hearing is held, the Board bases its decision on the written statements of the parties and the results of such examinations and inquiries as the Board deems necessary.
The Board then provided the Union with the letter received from applicant and documentary evidence which the latter had given the investiga tor in order to enable the Board to determine the
nature of the duties performed by the lieutenants. The Union replied as follows to the employer's representations:
[TRANSLATION] 3. Thirdly, the employer asked that the lieu tenants be excluded from the proposed bargaining unit because they are part of management and there is a possibility of conflicting loyalties between the employer and the security officers.
We should note here that we strongly doubt that the lieutenants of the security force can objectively be regarded as participat ing in management. These doubts are based in part on the organization chart provided by the employer and the position of the lieutenants on the said chart.
It should be noted that in the certification which the Alliance already holds, employees who are on the same administrative level as the chief of the security force are included in the bargaining unit. This inclusion was made pursuant to an objec tion by the employer and a decision of the board following a hearing (Case C-110, ref. Dl, vol. 5, pp. 5).
In our opinion, the lieutenants of the security force act as team leaders and their authority to organize, direct and supervise the operation and the work of the officers must be seen in this perspective.
According to the information received, the employer's state ment in paragraph (b) of its letter is not an accurate reflection of the reality, because the lieutenant only has the responsibility to recommend disciplinary action; in cases of disciplinary action against employees in the present bargaining unit, it is the departmental manager, jointly with the personnel manager, who signs the disciplinary notices.
We do not consider that the employer is giving a correct interpretation to the facts in its paragraph (c). In reality, the only purpose of the meetings mentioned is to decide on the most effective means of operating the security service in accordance with policies and procedures already laid down at a higher level.
We do not dispute the employer's statement in paragraph (d). We think it is quite normal for a person to participate in the selection of officers who are going to work on his team. However, we consider that this is not a reason for excluding the lieutenants. The same comments apply with respect to para graph (e) of the employer's letter.
Paragraphs (f) and (g) assume a grievance procedure which does not exist at present and which is the subject of negotia tions between the employer and the bargaining unit.
It may be assumed that the involvement of the lieutenants in the grievance procedure depends on the board's decision wheth er to exclude them from the bargaining unit. At this point, we ask the Board to consider the awkwardness of the procedure which would result from excluding the lieutenants from the bargaining unit.
First, it would have the effect of involving the same person at the complaint stage, which precedes the grievance, and the first level. Then, assuming that each level of management becomes involved in the procedure, we would end up with a five-level procedure before adjudication, and this would be much too clumsy and too long. The present procedure, which the parties have used for nearly four years in the other bargaining unit, consists of only three levels before adjudication.
For our part, we submit that the exclusion of the lieutenants from the bargaining team would have a harmful effect on the team spirit and the good will which at present exists between the lieutenants and their officers and sergeants. Once again, we ask that the Board take the employees' wishes into consideration.
On December 8, the Board wrote counsel for the applicant to tell him of the representations received from the Union. The next to last para graph of this letter read as follows:
[TRANSLATION] If you have any further comments to make on receipt of this documentation, I would ask you to make them directly to Ottawa, attention Mr. G.A. Lane, and to send me a copy.
On December 19, counsel for the applicant wrote the Board and responded to this invitation as follows:
[TRANSLATION] The employer has received and analyzed the points made in the Alliance's objection, and maintains the points made in its intervention as well as its request for a hearing in which it will be in a position to make verbal representations and present evidence on all the points contained in the said intervention.
On December 29, the Board - approved the Union's application for certification and dismissed applicant's objection to the lieutenants forming part of the bargaining unit.
In the submission of Mr. Perreault, counsel for the applicant, the Board should have held a hear ing before deciding, or at least obtained further evidence through its investigator. Mr. Perreault admitted that, in theory, the Board was not required to hold a hearing before making a decision. 2 However, he argued that the Board had such an obligation in the case at bar because, first, applicant had requested a hearing, and because, secondly, the questions at issue were questions of fact disputed on both sides. By not holding a hearing in such circumstances, he maintained, the Board acted contrary to the principles of natural justice and its decision should therefore be quashed.
I am not persuaded by this argument. The Board had a duty not to rule in the case at bar without providing applicant with an opportunity to
2 See Hoffman-La Roche Ltd. v. Delmar Chemical Ltd. [1965] S.C.R. 575; Komo Construction Inc. v. Commission des relations de travail du Québec [1968] S.C.R. 172; Durham Transport Inc. v. International Brotherhood of Teamsters Local 141 (1978) 21 N.R. 20.
present its arguments. Applicant was given such an opportunity and has only itself to blame if it did not make full use of it. The Board could, of course, have held a hearing; but it was not required to do so merely because applicant requested a hearing and the points at issue were questions of fact. Indeed, in my opinion, the only case where "natu- ral justice" imposes on the Board an obligation to hold a hearing before a decision is where the hearing is necessary in order to enable the parties to present their arguments (assuming such a situa tion could arise). That is not the situation here.
The Board therefore did not act unlawfully in failing to comply with applicant's request for a hearing. Moreover, counsel for the applicant rec ognized this by implication when, in argument, he admitted that his client could have no significant grievance if, instead of holding a hearing, the Board had obtained further evidence through one of its investigators. If that is so, then in my view applicant's real grievance is not that the Board decided without holding a hearing: rather, that it decided on the basis of insufficient evidence. I would add that, even in terms of this grievance, applicant's application cannot succeed because it is clear from perusing the record that there was evidence on which the Board could reasonably base its decision.
Applicant's final submission is that the Board acted unlawfully in failing to give reasons for its decision. According to applicant, by acting in this manner the Board indirectly placed itself beyond the supervisory power possessed by the Federal Court of Appeal under section 28.
This argument must also be dismissed. In the absence of legislative enactments to the contrary, courts of law are not required to give reasons for their decisions. 3 The same rule applies to adminis-
3 See Macdonald v. The Queen [1977] 2 S.C.R. 665, where Laskin C.J., speaking for the Court, said at p. 672:
Mere failure of a trial judge to give reasons, in the absence of any statutory or common law obligation to give them, does not raise a question of law.
trative or quasi-judicial bodies. 4 The mere fact that an administrative body is subject to the super visory power of the Federal Court of Appeal does not have the effect of placing that body under an obligation to give reasons for its decisions.
For these reasons, I would dismiss the application.
* * *
LE DAIN J.: I concur.
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HYDE D.J.: I concur.
4 See M.N.R. v. Wrights' Canadian Ropes Ltd. [1947] 1 D.L.R. 721, at pp. 731 and 732, and Proulx v. Public Service Staff Relations Board [1978] 2 F.C. 133, at p. 141; the recent decision of the Supreme Court of Canada in Northwestern Utilities Limited v. The City of Edmonton [1979] 1 S.C.R. 684, also contains an interesting passage on this point.
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