Judgments

Decision Information

Decision Content

A-36-81
International Longshoremen's and Warehouse- men's Union, Local 502 (Applicant)
v.
Terrance John Matus and Canada Labour Rela tions Board (Respondents)
[No. 1]
Court of Appeal, Pratte, Urie M. and Verchere D.J.—Vancouver, October 9 and November 10; Ottawa, November 24, 1981.
Judicial review — Labour relations — Expulsion of union member for joining a second union — Union permitting some members to join other unions — Canada Labour Relations Board finding union to have breached Code provisions prohib iting discrimination — Reinstatement and compensation ordered — Board denying Union's appeal and making finding that Union had breached an additional Code provision — Whether s. 185(f) and (h) of Labour Code ultra vires Parlia ment — Whether Board exceeded jurisdiction because its decision was founded on a patently unreasonable interpretation of s. 185(h) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 110(1), 185(1),(h), 189(d),(e) — The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], s. 92(13).
A union local expelled a member for disobeying a provision of its constitution which prohibited members from belonging to any other trade union. The member had joined another union as this was necessary to obtain employment in a different business at a time when little work was available at his usual places of employment. He had continued to pay his dues to the Union which expelled him. There was evidence that the Union permitted some members to have memberships in other unions. Upon application by the member to the Canada Labour Rela tions Board, the Union was found to have violated paragraphs 185(f) and (h) of the Code. Paragraph 185(f) forbade trade unions to practice discrimination in the application of member ship rules. Paragraph 185(h) provided that unions might not expel an employee from membership for refusing to perform an act contrary to the relevant Part of the Code. The Board ordered the member's reinstatement and that compensation be paid. The Union sought a reconsideration but this application was dismissed by the Board which found that the Union had also contravened paragraph 185(e) of the Code. That para graph prohibited unions from requiring an employee's termina tion who had been expelled from membership other than for non-payment of dues. The Union made the present application to the Federal Court of Appeal for a review of the Board's final decision. The Union's submissions were that (1) paragraphs 185(f) and (h) were ultra vires Parliament in purporting to regulate internal union rules and that (2) the Board had
exceeded its jurisdiction because its decision was founded on a patently unreasonable interpretation of paragraph 185(h).
Held, the application is dismissed.
Per Pratte J.: Parliament was competent to enact the Canada Labour Code because that legislation applies only to employees involved in u ertakings within federal jurisdiction and because the determinate of the conditions of work of those persons has been considered a vital part of the operation of federal under takings. The author' y of Parliament to enact labour legislation extends to the enact ent of legislation appropriate to establish "a system of collective\bargaining and statutory provisions for settlement of disputes in labour relations." Trade unions are a necessary element of such a system. For that reason, the Parliament of Canada has the authority to legislate to ensure that persons employed in connection with federal undertakings are not unjustly deprived of their right to join the union of their choice. This is the purpose of paragraphs 185(f) and (h). As to the second issue, the Board interpreted paragraph 185(h) as prohibiting a Union from expelling a member by reason of his having done something authorized by the Code. This is an unreasonable interpretation of that provision. Paragraph 185(h) prohibits a union from expelling a member for the reason that he has refused to do something that is contrary to Part V of the Code; it does not prohibit a union from expelling a member for the reason that he has done something that he had the right to do. However, the Board's order was also based on the alternative finding that the applicant had violated paragraph 185(/). Therefore, the Board's order was not vitiated by its finding that the Union had violated paragraph 185(h).
Per Urie J.: There is no decision to be set aside since the Board's decision in this application was varied by the decision sought to be set aside in Appeal No. A-700-80 infra page 558.
Per Verchere D.J. concurring in the result: The Board did not err in its interpretation of paragraph 185(h). The Union's by-law was aimed at membership in any other trade union while a member of the Union. The Board concluded that such dual membership is permitted by the Code and that it would be an act contrary to the Code to require the employee to give up that duality. When the member did not give up his duality of membership, he was refusing to perform an act that was contrary to Part V of the Code and it was not open to the Union to expel him.
In re the Validity and Applicability of the Industrial Relations and Disputes Investigation Act [1955] S.C.R. 529, followed.
APPLICATION for judicial review.
COUNSEL:
M. D. Shortt for applicant.
I. G. Nathanson for respondent Terrance John Matus.
J. Baigent for respondent Canada Labour Relations Board.
W. B. Scarth, Q.C. for Attorney General of Canada.
SOLICITORS:
Shortt & Company, Vancouver, for applicant.
Davis & Company, Vancouver, for respondent Terrance John Matus.
Baigent & Jackson, Vancouver, for respond ent Canada Labour Relations Board.
Deputy Attorney General of Canada for Attorney General of Canada.
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 a decision made by the Canada Labour Relations Board on March 6, 1980.
The applicant is a trade union within the mean ing of the Canada Labour Code, R.S.C. 1970, c. L-1, composed of longshoremen working in the Port of New Westminster, British Columbia. For many years it has been a party to a collective agreement under which only its members can work as longshoremen.
The respondent Matus used to work as a long shoreman in the Port of New Westminster. He was a member of the applicant when, on November 7, 1978, he was expelled from membership in the applicant on the sole ground that he had violated a rule contained in its constitution imposing on its members the obligation "not to belong to any other Trade Union". Following his expulsion, he made a complaint to the Board pursuant to section 187 of the Code that the applicant had contra vened section 185 when it had expelled him. At the hearing before the Board, counsel for Mr. Matus argued that the applicant had contravened para graphs 185(f) and (h). The Board determined that the applicant had failed to comply with paragraph 185(h) and, accordingly, ordered the applicant to
reinstate and compensate Mr. Matus. That is the decision against which this section 28 application is directed.'
Two arguments were put forward by counsel for the applicant. He said
(a) that the Board had exceeded its jurisdiction in making the order under attack because para graphs 185(f) and (h) of the Code are beyond the legislative competence of the Parliament of Canada, and
(b) that the Board had also exceeded its juris diction because its decision was founded on a patently unreasonable interpretation of para graph 185 (h) of the Code.
' The relevant provisions of the Canada Labour Code read as follows:
185. No trade union and no person acting on behalf of a trade union shall
(f) 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;
(h) expel or suspend an employee from membership in the trade union or take disciplinary action against or impose any form of penalty on an employee by reason of his having refused to perform an act that is contrary to this Part; ...
189. Where, under section 188, the Board determines that a party to a complaint has failed to comply with ... section ... 185..., the Board may, by order, require the party to comply with that ... section and may
(d) in respect of a failure to comply with paragraph 185(J) or (h), by order, require a trade union to reinstate or admit an employee as a member of the trade union; and
(e) in respect of a failure to comply with paragraph 185(g), (h) or (i), by order, require a trade union to rescind any disciplinary action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any pecuniary or other penalty imposed on the employee by the trade union,
and, for the purpose of ensuring the fulfilment of the objec tives 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 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.
1. The Constitutional Issue
The applicant's submission on that first issue is easily summarized. The relations between employ ers and employees is a matter of property and civil rights which, prima facie, is within the exclusive legislative jurisdiction of the provinces pursuant to subsection 92(13) of The British North America Act, 1867, 30 & 31. Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5]. If the Parliament of Canada has nevertheless been held to have the competence to enact the Canada Labour Code, it is because that Code applies only to employees employed in connection with undertakings that are within the legislative authority of Canada and because the determination of the conditions of work of those employees has been considered a vital part of the operation of the federal undertak ings. The authority of Parliament to enact labour legislation therefore flows from its authority to regulate the operation of federal undertakings. However, according to counsel for the applicant, paragraphs 185(f) and (h) cannot be considered as being legislation regulating, either directly or in directly, the operation of federal undertakings; these provisions, said he, regulate the relations between trade unions and their members, a matter which is within the exclusive provincial jurisdic tion.
That argument must, in my view, be rejected. The authority of Parliament in the field of labour relations is not limited to the direct determination of the conditions of work of persons employed in connection with federal undertakings; it extends to the enactment of legislation appropriate to estab lish "a system of collective bargaining and statu tory provisions for settlement of disputes in labour relations". 2 Trade unions are a necessary element of such a system. For that reason, the Parliament of Canada has, in my opinion, the authority to legislate so as to ensure that persons employed in connection with federal undertakings are not unjustly deprived of their right to join the union of their choice. This, in my view, is the purpose of paragraphs 185(f) and (h).
2 In re the Validity and Applicability of the Industrial Relations and Disputes Investigation Act [1955] S.C.R. 529, per Estey J., at page 564.
2. The Interpretation Issue
The second argument put forward on behalf of the applicant is that the Board based its finding that the applicant had violated paragraph 185(h) on a patently unreasonable interpretation of that provision.
There is much to say in favour of that submis sion. Mr. Matus was expelled from membership in the applicant solely because he had become a member of another trade union. The Board con sidered, rightly or wrongly, that Mr. Matus had the right, under the Code, to join that other trade union. If the Board found that the applicant had violated paragraph 185(h) in expelling Mr. Matus, it is necessarily because it interpreted that para graph as prohibiting a union from expelling a member by reason of his having done something authorized by the Code. This is, in my opinion, an unreasonable interpretation of that provision. Paragraph 185(h) clearly prohibits a union from expelling a member for the reason that he has refused to do something that is contrary to Part V of the Code; it does not prohibit a union from expelling a member for the reason that he has done something that he had the right to do.
If the order made by the Board was based solely on the determination that the applicant had violat ed paragraph 185(h), I would have no hesitation to allow this section 28 application. However, counsel for the respondent and counsel for the Board submitted that the error that the Board may have committed in finding that the applicant had violat ed paragraph 185(h) did not vitiate its order since that order was also based on the alternative find ing that the applicant had violated paragraph 185(f), a finding which was clearly supported by the evidence. In answer to that submission, counsel for the applicant did not deny that, in the circum stances, a finding of violation of paragraph 185(f) could have been made by the Board, but he argued that such a finding had not in fact been made.
The passage of the decision of the Board which contains that alleged finding of violation of para graph 185(f) follows immediately the part of the decision where the Board determined that the applicant had violated paragraph 185(h); it reads as follows:
It becomes unnecessary for the Board to find, as regards the alternative allegation of Matus, that local 502 would have applied to him a membership rule in a discriminatory manner in expelling him for belonging to another trade union.
However, on the basis of the evidence, if the Board had had to make such an alternative determination it would have found in the evidence adduced, enough support of discrimination in applying the rule to Matus, as opposed to other members, and it would have arrived at the conclusion that local 502 had violated section 185(f) of the Code.
It is true that the grammatical meaning of that passage is that the Board does not make a determi nation but merely indicates the determination it would make if it had to make one. However, too much importance must not be attached to the grammar. The substance of a decision is more important than its grammatical form. And, in my opinion, the real meaning of the above-quoted passage of the decision is that the Board makes an alternative finding of violation of paragraph 185 (f).
For these reasons, I would dismiss the application.
* * *
The following are the reasons for judgment rendered in English by
URIE J.: As pointed out in the reasons for judgment in Appeal No. A-700-80 [page 558 infra], the decision of the Canada Labour Rela tions Board in this application was varied by the decision which was sought to be set aside in Appeal No. A-700-80. That being so, there is no decision to be set aside herein and the section 28 application should, therefore, be dismissed.
* * *
The following are the reasons for judgment rendered in English by
VERCHERE D.J.: In these proceedings two applications under section 28 of the Federal Court Act were heard together by consent. In the one, the applicant, International Longshoremen's and Warehousemen's Union, Local 502 ("the Union") impugned a decision of the Canada Labour Rela tions Board ("the Board") made March 6, 1980, by which the Union had been ordered to reinstate the respondent, Terrance John Matus ("Matus") to its membership and to compensate him in
money for his loss of earnings resulting from his earlier expulsion therefrom. In the other, the Union attacked a subsequent decision of the Board made October 7, 1980, in which it dismissed the Union's request for a review of the earlier decision. For convenience each application will be dealt with separately in the order mentioned above.
As his first ground of attack, counsel for the Union submitted that the provisions of the Canada Labour Code ("the Code"), Part V, to which the Board had referred in its reasons for decision namely, paragraphs 185(f) and (h) thereof', went beyond the legislative competence of the Parlia ment of Canada in that they do not seek directly or indirectly to regulate any federal undertaking but merely to regulate the relationship between trade unions and their respective members. I find it unnecessary for me to go into the question. I have had the opportunity of reading the reasons for judgment of both my learned colleagues here and as the issue is dealt with at some length and to the same effect there, and as I find myself in respectful agreement with their conclusions, it is sufficient to say that I concur therein.
The second ground advanced by counsel for the Union raised what was called "The Interpretation Issue", that is to say, it was contended on behalf of the Union that the Board had, in reaching its decision, relied solely on paragraph 185(h), supra, and that in so doing it had fatally misinterpreted its language. It was argued that because Matus was expelled from the Union because he had, while still one of its members, joined another trade union and thus contravened section 5(b) of the Union by-laws which expressly prohibited such behav-
3 185. No trade union and no person acting on behalf of a trade union shall
(f) 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;
(h) expel or suspend an employee from membership in the trade union or take disciplinary action against or impose any form of penalty on an employee by reason of his having refused to perform an act that is contrary to this Part; ...
four, he had not been expelled, in the words of the paragraph on which the Board had found to have been breached, "by reason of his having refused to perform an act that is contrary to this Part."
In my view, which I express with deference because of at least one of my colleague's differing opinion on this point, it is by no means certain that the Board had erred in its application of paragraph 185(h) to a situation where, as here, a by-law made by a union appeared to it prohibited from application because it precluded enjoyment of the basic freedom given to every employee by subsec tion 110(1) of the Code to join the union of his choice. It seems to me that the conduct at which the by-law was aimed was not simply that of belonging to a union; it was that of belonging to any other trade union while a member of this Union. The reason for it was probably the fear of a resulting division of loyalty, but that is of little consequence here. If, as the Board concluded, such dual membership is permitted by the Code, it would be an act contrary to the Code to require, either expressly or impliedly, that the employee concerned give up that duality. It accordingly seems to me to follow that here, when Matus did not forthwith give up his duality of membership, he was refusing to perform an act that was con trary to Part V of the Code, and that being so, that it was not open to the Union to expel him.
It follows then that, in my opinion, the Board did not err in law in its interpretation of paragraph 185(h) and that this ground of attack on its deci sion must also fail.
In any event, however, as Pratte J. has pointed out in words leading to a conclusion with which I respectfully agree, the Board made an alternative finding of the breach by the Union of paragraph 185(f); and as there was evidence to support that finding, I agree with my learned colleague's con clusion that even if the Board erred in its interpre tation and application of paragraph 185(h), the attack on its decision cannot succeed.
For these reasons I respectfully concur in the conclusion reached by both of my colleagues, namely, that this application be dismissed.
 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.