A-473-80
Dome Petroleum Limited and Canadian Marine
Drilling Limited (Applicants)
v.
Canadian Merchant Service Guild, Canadian
Brotherhood of Railway, Transport and General
Workers, and Seafarers' International Union of
Canada (Respondents)
Court of Appeal, Pratte and Heald JJ. and Kelly
D.J.—Toronto, November 21; Ottawa, December
8, 1980.
Judicial review — Labour relations — Application to review
and set aside a Canada Labour Relations Board order granting
to respondents a right of access to applicants' premises for
purposes of soliciting membership — Board's order authorizes
representatives of respondents to board applicants' vessels and
to meet with employees during working hours — Whether
Board exceeded its jurisdiction by permitting respondents to
attempt to organize employees during working hours —
Application allowed — Canada Labour Code, R.S.C. 1970, c.
L-1, as amended, ss. 185(d), 199(1),(2) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corp. [1979] 2 S.C.R. 227, distin
guished.
APPLICATION for judicial review.
COUNSEL:
M. Dubinsky, Q.C. for applicants.
Allan Black for respondent Canadian Mer
chant Service Guild.
Marshall Bray for respondent Seafarers'
International Union of Canada.
Bruce Greyell for Canada Labour Relations
Board.
SOLICITORS:
Murrey Dubinsky, Q.C., Calgary, for appli
cants.
McTaggart, Ellis & Company, Vancouver,
for respondent Canadian Merchant Service
Guild.
McMaster, Bray, Cameron & Jasich, Van-
couver, for respondent Seafarers' Internation
al Union of Canada.
Braidwood, Nuttall, MacKenzie, Brewer
Greyell & Company, Vancouver, for Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside an order of
the Canada Labour Relations Board granting to
each of the respondent Unions, for purposes relat
ing to soliciting membership, a right of access to
certain premises owned or controlled by the
applicants.
The order of the Board was made pursuant to
section 199 of the Canada Labour Code, R.S.C.
1970, c. L-1, as amended by S.C. 1972, c. 18, s. 1
and S.C. 1977-78, c. 27, s. 69.1:
199. (1) Where the Board
(a) receives from a trade union an application for an order
granting an authorized representative of the trade union
access to employees living in an isolated location on premises
owned or controlled by their employer or by any other
person, and
(b) determines that access to the employees
(i) would be impracticable unless permitted on premises
owned or controlled by their employer or by such other
persons, and
(ii) is reasonably required for purposes relating to solicit
ing union membership, the negotiation or administration of
a collective agreement, the processing of a grievance or the
provision to employees of a union service,
the Board may make an order granting the authorized
representative of the trade union designated in the order
access to the employees on the premises of their employer or
such other person, as the case may be, that are designated in
the order.
(2) The Board shall, in every order made under subsection
(I ), specify the method of access to the employees, the times at
which access is permitted and the periods of its duration.
Under subsection 122(1) of the Canada Labour
Code, the sole grounds upon which an order of the
Board may be reviewed by the Court are those
stated in paragraph 28(1)(a) of the Federal Court
Act, namely, "that the Board .. . failed to observe
a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction".
Counsel for the applicants attacked the order of
the Board on four grounds that are summarized as
follows at page 4 of his memorandum:
a) that the Board exceeded its jurisdiction under section 199
of the Canada Labour Code, Part V, by extending its said
Order beyond the right of access to the Applicants premises
and permitting the Respondents to attempt, during the work
ing hours of the Applicants' employees, to organize such
employees, contrary to the provisions of section 185(d) of the
Code;
b) that the Board abused its discretion under section 199 of
the Code through its failure to consider relevant facts, by its
consideration of improper factors, and by ignoring the policy
and objects of the Code;
c) that the Board improperly exercised its jurisdiction under
section 199 of the Code by applying predetermined policy,
thereby fettering its discretion thereunder;
d) that the Board denied the Applicants natural justice by
failing to investigate fully or at all the relevant factors
implicit in the Respondents' applications, by refusing to
conduct a Hearing into such applications, and by improperly
assigning the burden of proof in respect of such applications
to the Applicants herein.
After hearing the applicants' argument, the
Court expressed its conclusion that the first one of
the four grounds invoked by the applicants was the
only one which came within the purview of para
graph 28(1)(a) of the Federal Court Act. Accord
ingly, the Court indicated that it did not need to
hear the respondents on the other three points.
The sole question that remains to be resolved,
therefore, is whether the Board exceeded its juris
diction by permitting the respondents to attempt to
organize the applicants' employees during their
working hours.
The order of the Board authorizes representa
tives of the respondent Unions to board certain
vessels owned or controlled by the applicants. The
part of that order that the applicants find objec
tionable is found in paragraph 11, which must be
read with paragraph 8 of the same order:
8. Access by the authorized representative of each union to the
employees aboard the vessels is solely for purposes relating to
soliciting union membership and must not interfere with the
operation of any of the vessels or the performance by the crew
of their duties, except as set out in paragraph 1 I.
11. If the licensed or unlicensed personnel of each vessel are not
off-duty for at least two hours of the time the vessel on which
they are employed is docked at the base camp and jetty and the
unions have been given prior notice of its arrival in accordance
with paragraph 10, then the authorized representatives, may
meet with the employees, out of the presence of other persons,
for two hours during the employees' normal working hours; ...
In the applicants' submission, paragraph 11
exceeds the jurisdiction of the Board because sec
tion 199 of the Code does not empower the Board
to authorize a union representative to contravene
paragraph 185(d) of the Code, a provision which
reads as follows:
185. No trade union and no person acting on behalf of a
trade union shall
(d) except with the consent of the employer of an employee,
attempt, at an employee's place of employment during the
working hours of the employee, to persuade the employee to
become, to refrain from becoming or to cease to be a member
of a trade union;
The respondents made two answers to that sub
mission. First, they argued that the Board had
correctly interpreted section 199 as vesting it with
the power to authorize what would otherwise be a
violation of section 185. Second, they invoked the
authority of the decision of the Supreme Court of
Canada in Canadian Union of Public Employees
Local 963 v. New Brunswick Liquor Corporation'
and said that, even if the Board had erred in
interpreting section 199, it had not thereby exceed
ed its jurisdiction since its interpretation of section
199 was not "patently unreasonable".
In my opinion, the Board does not possess, under
section 199, the authority to authorize a union
representative to contravene paragraph 185(d).
Paragraph 185(d) is found under the heading
"Unfair Practices". It prohibits a union or a
person acting on behalf of a union from soliciting
an employee at his place of employment during his
working hours. The essence of this provision is
merely to prohibit unions or persons acting on
their behalf from interfering with the work of
employees.
Section 199 is of an altogether different nature.
It applies when employees live in an isolated loca
tion on premises owned or controlled by their
employer or by another person, in the cases where
it would be impracticable for a union representa
tive to have access to the employees elsewhere than
"on [the] premises owned or controlled by their
employer or by such other persons". In those
circumstances, the Board may make an order
authorizing the union representative to meet the
' [1979] 2 S.C.R. 227.
employees "on the premises of their employer or
such other person". That provision does not, either
expressly or impliedly, empower the Board to
authorize the representative of a union to interfere
with the work of employees; it merely authorizes
the Board to authorize a union representative to go
and meet the employees on the premises where
they live.
I do not see any contradiction or conflict be
tween those two provisions of the Act which, in my
opinion, can both be applied. Moreover, contrary
to what was argued by the respondents, subsection
199(2) does not justify the inference that the
Board may authorize a violation of section 185.
Subsection 199(2) does not confer any power on
the Board. It specifies the manner in which the
power given by subsection 199(1) must be exer
cised and imposes on the Board the duty, in
making an order under subsection 199(1), to speci
fy "the times at which access is permitted". I
cannot find in that provision any intention to give
to the Board a power to authorize what is forbid
den by paragraph 185(d).
The Board has therefore erred, in my view, in
making the order under attack. I am also of opin
ion that this error is reviewable by this Court
under paragraph 28(1)(a) of the Federal Court
Act. In order to reach this last conclusion, I do not
find it necessary to determine that the error com
mitted by the Board was "patently unreasonable".
The decision of the Supreme Court in the New
Brunswick Liquor Corporation case (supra) has
no application here. In that case, the Public Ser
vice Labour Relations Board of New Brunswick
had inquired into a complaint that an employer
had failed to observe a prohibition of the Public
Service Labour Relations Act, R.S.N.B. 1973, c.
P-25 and, having found that complaint to be well
founded, had ordered the employer to stop its
illegal activities. The Public Service Labour Rela
tions Act clearly authorized the Board to make
such an inquiry and to pronounce that kind of an
order. The attack made against the Board in that
case was that it had misinterpreted the statutory
provision prescribing the prohibition that the
employer had allegedly contravened. In the present
case, the situation is altogether different since the
Board has misinterpreted the section of the statute
that defines its authority and specifies its powers.
If, as a result of such an error, the Board made an
order that it was not empowered to make, it
thereby exceeded its jurisdiction whether or not its
error was "patently unreasonable".
The application must therefore succeed. How
ever, as the only part of the order that exceeds the
jurisdiction of the Board is contained in paragraph
11, and as that paragraph is clearly severable from
the rest of the order, I would merely set aside that
paragraph of the order.
* * *
HEALD J.: I concur.
* * *
KELLY D.J.: I concur.
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.