T-190-85
Brink's Canada Limited (Applicant)
v.
Canada Labour Relations Board and General
Teamsters Local Union 979 (Respondents)
Trial Division, Strayer J.—Winnipeg, February 5;
Ottawa, February 25, 1985.
Jurisdiction — Federal Court — Trial Division — Applica
tion to prohibit Board from proceeding with certification
application — Provincially certified Union applying for cer
tification under federal law for group of applicant's employees
— S. 122 of Code providing Board's decisions not subject to
review except by Federal Court of Appeal pursuant to s.
28(1)(a) of Federal Court Act — S. 28(1)(a) not applying
because no "decision" yet taken — Application dismissed —
S. 122 precluding Trial Division from considering jurisdic
tional issue of whether applicant's business federal work,
undertaking or business — Trial Division not given role in
"administering" Code by Parliament — Effect of Canada
Labour Relations Board et al. v. Paul L'Anglais Inc. et al.,
[1983] 1 S.C.R. 147, considered — Result absurd as Federal
Court denied judicial review power while concurrent applica
tions in provincial superior courts possible — Evolution of
laws relating to judicial review for protection of federal system
— Canada Labour Code, R.S.C. 1970, c. L-1, s. 111 (as am.
by S.C. 1977-78, c. 27, s. 43) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 18, 28 — Constitution Act, 1867,
30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix 11, No. 51
(as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1), ss. 91, 92, 101 — Consti
tution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 52.
Constitutional law — Distribution of powers — Jurisdiction
of Canada Labour Relations Board — Whether business fed
eral work, undertaking or business — Federal Court, Trial
Division lacking jurisdiction to entertain constitutional issue
— Paul L'Anglais case not establishing principle judicial
review of Board proceedings must be available re: distribution
of powers — Entrenched jurisdiction of provincial superior
courts immune from federal and provincial legislation — Duty
of Federal Court to apply Constitution in administration of
laws of Canada — Court's ability to discharge duty limited by
Canada Labour Code — Absurd result reached by conceiving
fundamental guarantee of judicial review in Constitution is
availability in s. 96 courts — Authority legislature may not
secure position legislation valid by legislation denying means
of attacking validity — Restrictive interpretation of Constitu
tion Act, 1867, s. 101 — Meaning of phrase "notwithstanding
anything in this Act" — Canada Labour Code, R.S.C. 1970, c.
L-1, s. 122 (as am. by S.C. 1977-78, c. 27, s. 43) — Constitu
tion Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), ss. 96,
101.
Labour relations — Jurisdiction of Canada Labour Rela
tions Board — Respondent Union applying for certification
under federal law — Applicant arguing Board unable to confer
jurisdiction by making wrongful finding applicant's business
federal work, undertaking or business — Federal Court, Trial
Division not having jurisdiction to hear application by virtue
of Code s. 122 — Canada Labour Code, R.S.C. 1970, c. L-1, s.
122 (as am. by S.C. 1977-78, c. 27, s. 43).
Application for prohibition to prevent the Canada Labour
Relations Board from proceeding further with an application
for certification, and for declarations that the Board has failed
to observe the principles of natural justice and that it does not
have authority to confer jurisdiction by making a wrongful
finding that the applicant's business constitutes a federal work,
undertaking or business. The Union applied to the Board for
certification as a bargaining agent under federal law for a
group of the applicant's employees. The applicant objected to
the Board's jurisdiction, claiming its business is not subject to
federal jurisdiction under the Canada Labour Code. The
respondents contend that the Trial Division has no jurisdiction
to review the Board's decisions in light of section 122 of the
Code. Section 122 provides that the Board's decisions shall not
be reviewed in any court except by the Federal Court of Appeal
in accordance with paragraph 28(1)(a) of the Federal Court
Act. Paragraph 28(1)(a) does not apply because no "decision"
had yet been taken within the meaning of section 28. The issue
is whether section 122 precludes the Trial Division from consid
ering the jurisdictional issue of whether the applicant's business
is a federal work, undertaking or business.
Held, the application should be dismissed.
In Canada Labour Relations Board et al. v. Paul L'Anglais
Inc. et al., [1983] 1 S.C.R. 147, the Supreme Court of Canada
held that notwithstanding section 18 of the Federal Court Act
and section 122 of the Code, the provincial superior courts had
an inherent jurisdiction to determine whether a federal law was
being applied in a way which would intrude on provincial
jurisdiction.
The role of the Federal Court is dependent on the assignment
by Parliament, under section 101 of the Constitution Act, 1867,
of certain responsibilities "for the better Administration of the
Laws of Canada." The Federal Court cannot enter upon such
enquiries unless it has been given a role by Parliament in a
particular situation in respect of the "administration of the laws
of Canada". Section 122 has excluded the Federal Court, Trial
Division and limited the role of the Federal Court of Appeal.
The Trial Division, having no role in "administering" the Code
cannot make any assessment as to whether, in this situation, the
Code can be constitutionally applicable to the applicant's
business.
The net result is an absurdity. Although no judicial review is
available in the Federal Court, judicial review on the basis of
the constitutional applicability of the Code to the applicant's
business is available in the superior courts of the provinces.
Concurrent applications may be brought in the superior courts
of several provinces with respect to activities of the Board in
relation to an employer in interprovincial business. The guaran
tee of judicial review for the protection of the federal system
was identified in B.C. Power Corporation v. B.C. Electric Co.,
[1962] S.C.R. 642 and Amax Potash Ltd. et al. v. Government
of Saskatchewan, [1977] 2 S.C.R. 576 where it was said that a
legislature could not by legislation denying a means for attack
ing the validity of legislation, put itself in the same position as
if that legislation were valid. While that principle implies the
need for judicial review, it does not require such review in a
particular court at a particular time. There was authority under
sections 91 and 101 to regulate the timing, procedure and locus
of judicial review provided that it was ultimately available in
constitutional cases, but the law has not evolved that way.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Labour Relations Board et al. v. Paul L'Anglais
Inc. et al., [1983] 1 S.C.R. 147.
CONSIDERED:
B.C. Power Corporation v. B.C. Electric Co., [1962]
S.C.R. 642; Amax Potash Ltd. et al. v. Government of
Saskatchewan, [1977] 2 S.C.R. 576; Reference as to the
Legislative Competence of the Parliament of Canada to
Enact Bill No. 9 of the Fourth Session, Eighteenth
Parliament of Canada, Entitled "An Act to Amend the
Supreme Court Act", [1940] S.C.R. 49.
REFERRED TO:
Paul L'Anglais Inc. v. Canada Labour Relations Board,
[1979] 2 F.C. 444 (C.A.); C.J.M.S. Radio Montréal
(Québec) Ltée v. Canada Labour Relations Board, [ 1979]
I F.C. 501 (T.D.); Re Crosbie Offshore Services Ltd. and
Canada Labour Relations Board (1983), 3 D.L.R. (4th)
694 (F.C.T.D.); Speaker of the House of Commons v.
Canada Labour Relations Board et al., order dated May
29, 1984, Federal Court, Trial Division, T-751-84, not yet
reported; Attorney General of Canada v. Law Society of
British Columbia, [1982] 2 S.C.R. 307; Crevier v. Attor
ney General of Quebec et al., [1981] 2 S.C.R. 220;
Attorney-General for Ontario and Others v. Attorney-
General for Canada and Others and Attorney-General
for Quebec, [1947] A.C. 127 (P.C.).
COUNSEL:
Sydney Green, Q.C. for applicant.
Dianne Pothier and Francine Lamy for
respondent Canada Labour Relations Board.
David Shrom for respondent General Team
sters Local Union 979.
SOLICITORS:
Sydney Green, Q.C., Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent Canada Labour Relations Board.
Simkin, Gallagher, Winnipeg, for respondent
General Teamsters Local Union 979.
The following are the reasons for order ren
dered in English by
STRAYER J.: I dismissed this application for
want of jurisdiction on February 5, 1985, and
undertook to provide these written reasons later.
It appears that the respondent Union, which has
for some thirty-two years been certified pursuant
to the law of Manitoba as the bargaining agent for
a group of the applicant's employees, submitted an
application to the Canada Labour Relations Board
in the fall of 1984 for certification as a bargaining
agent under federal law and with a somewhat
larger group of the applicant's employees. There
has been considerable correspondence back and
forth. The applicant has taken exception to the
jurisdiction of the federal Board, claiming its busi
ness is not subject to federal jurisdiction under the
Canada Labour Code [R.S.C. 1970, c. L-1], and
has objected with respect to the inclusion of cer
tain employees and to the procedure being fol
lowed by the Board. The Board is in the process of
holding a vote and after that is completed it will
presumably make some decision as to certification.
This application in the meantime was brought
for prohibition to prevent the Board from proceed
ing further with the application for certification,
and for declarations that the Board has failed to
observe the principles of natural justice and that it
does not have authority to confer jurisdiction by
making a wrongful finding that the business of the
applicant constitutes a federal work, undertaking
or business.
The respondents essentially rely on section 122
of the Canada Labour Code [as am. by S.C.
1977-78, c. 27, s. 43] which provides as follows:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with paragraph 28(1)(a) of the
Federal Court Act.
(2) Except as permitted by subsection (1), no order, decision
or proceeding of the Board made or carried on under or
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of
any court, whether by way of injunction, certiorari, prohibi
tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or
proceeding is beyond the jurisdiction of the Board to make or
carry on or that, in the course of any proceeding, the Board for
any reason exceeded or lost its jurisdiction.
They contend that the Trial Division has no juris
diction to review any decisions or proceedings
which have been taken to date by the Board. It
was common ground that at this stage the appli
cant could not seek relief in the Federal Court of
Appeal under paragraph 28(1)(a) [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 101—the one
remedy permitted to him by the privative clause,
section 122 of the Canada Labour Code—because
no "decision" had yet been taken within the mean
ing of section 28 of the Federal Court Act: see,
e.g., Paul L'Anglais Inc. v. Canada Labour Rela
tions Board, [1979] 2 F.C. 444 (C.A.).
I determined first that, in general, section 122
was effective to prevent judicial review in the Trial
Division. It has been given such effect in this
Court in numerous cases such as C.J.M.S. Radio
Montréal (Québec) Ltée v. Canada Labour Rela
tions Board, [1979] 1 F.C. 501 (T.D.); Re Crosbie
Offshore Services Ltd. and Canada Labour Rela
tions Board (1983), 3 D.L.R. (4th) 694
(F.C.T.D.) and Speaker of the House of Com
mons v. Canada Labour Relations Board et al.,
order dated May 29, 1984, Federal Court, Trial
Division, T-751-84, not yet reported. This meant
that I could not consider any complaint based on
denial of natural justice, nor even any jurisdiction
al issue not based on constitutional considerations.
I gave further and careful consideration, how
ever, to the question of whether section 122 pre
cluded the Trial Division from considering the
jurisdictional issue as to whether the Canada
Labour Code can constitutionally apply to the
applicant's business; that is, whether it can be
considered as a federal work, undertaking, or busi
ness within the accepted constitutional criteria. I
felt it necessary to consider this point because of
the decision of the Supreme Court of Canada in
Canada Labour Relations Board et al. v. Paul
L'Anglais Inc. et al., [1983] 1 S.C.R. 147. In that
case in a similar situation the Supreme Court of
Canada held that, notwithstanding the privative
clause, (section 122 of the Canada Labour Code),
the Superior Court of Quebec could by a writ of
evocation consider the question of whether the
employer's business in question was within federal
jurisdiction. Relying on cases such as Attorney
General of Canada v. Law Society of British
Columbia, [1982] 2 S.C.R. 307, Chouinard J. for
the Court held that notwithstanding section 18 of
the Federal Court Act purporting to give exclusive
jurisdiction to the Trial Division of the Federal
Court for such forms of review over federal tri
bunals, and notwithstanding section 122 of the
Canada Labour Code, whose effect equally bars
Federal Court of Appeal consideration at this
stage, the provincial superior courts had an inher
ent jurisdiction to determine whether a federal law
was being applied in a way which would intrude on
provincial jurisdiction. I reviewed this case to
determine whether there was a fundamental prin
ciple to be derived from it to the effect that
judicial review of the Board's proceedings must
always be available with respect to the federal-
provincial distribution of powers, thus requiring
me to ignore section 122 of the Code.
I cannot derive that principle from the decision.
It turns instead on what has been seen as an
entrenched jurisdiction of the provincial superior
courts which seemingly is immune from provincial
(see Crevier v. Attorney General of Quebec et al.,
[1981] 2 S.C.R. 220) or federal legislation.
The role of the Federal Court, as emphasized in
the Paul L'Anglais decision and in the B.C. Law
Society decision, is dependent on the assignment
by Parliament under section 101 of the Constitu
tion Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)] of certain responsibili
ties "for the better Administration of the Laws of
Canada".
It is, I believe, obvious that in the course of such
"administration" it is incumbent on this Court, as
it is on any court including non-section 96 provin
cial courts, to have regard to the requirements of
the Constitution in interpreting and applying any
laws. This has always been obvious, flowing from
fundamental constitutional instruments such as the
Colonial Laws Validity Act, 1865, 28 & 29 Vict.,
c. 63, s. 2 (U.K.), and is now firmly entrenched in
the Canadian Constitution in section 52 of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) which provides as follows:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
In the "administration" of the laws of Canada the
Federal Court must surely apply the Constitution
as the "supreme law of Canada" just as it must in
numerous situations have regard to the law of the
provinces. This includes determinations as to
where a law of Canada may be constitutionally
applicable or indeed whether the law can be given
effect at all because of conflict with the "supreme
law of Canada".
Nevertheless, the Federal Court cannot enter
upon such enquiries unless it has been given a role
by Parliament in a particular situation in respect
of the "administration of the laws of Canada".
Section 122 of the Canada Labour Code has clear
ly excluded the Trial Division of the Federal
Court, and substantially limited the role of the
Federal Court of Appeal, in the situations covered
by that section. The Trial Division, having no role
in "administering" the Canada Labour Code in
this context, cannot make any assessment as to
whether in the situation covered by the present
application the Code can be constitutionally appli
cable to the business of the applicant herein.
The net result of my decision leads to something
of an absurdity in that at this stage no judicial
review is available in the Federal Court but judi
cial review on the basis of the constitutional
applicability of the Canada Labour Code to the
applicant's business is, in principle, available in the
superior courts of the provinces. This means that
in many such cases applications may be brought in
the superior courts of several provinces concurrent
ly with respect to activities of the Board in relation
to an employer engaged in interprovincial business.
The processes of each superior court will be effec
tive only in its own province. The decision of each
will be appealable to its respective provincial court
of appeal, all of which may be appealable to the
Supreme Court of Canada. At a somewhat later
stage, many of the same issues may be taken to the
Federal Court of Appeal whose decision can in
turn be appealed to that same Supreme Court of
Canada.
With respect, it appears to me that we have
arrived at this result by conceiving that the funda
mental guarantee of judicial review in the Consti
tution is that such review be available in section 96
courts. But the fundamental guarantee of judicial
review for the protection of the federal system was
identified by the Supreme Court of Canada in
cases such as B.C. Power Corporation v. B.C.
Electric Co., [1962] S.C.R. 642 and Amax Potash
Ltd. et al. v. Government of Saskatchewan,
[1977] 2 S.C.R. 576 where it was said that a
legislature could not, by legislation denying a
means for attacking the validity of legislation, put
itself in the same position as if that legislation
were valid. While that principle implies the need
for judicial review, it does not logically require
such review in a particular court or at a particular
time. Such principle, applied to the present situa
tion, would probably mean that the basic constitu-
tional requirements would be met by judicial
review being available, once a decision has actually
been taken by the Board, as a jurisdictional issue
in the Federal Court of Appeal (whose decisions
are of course appealable to the Supreme Court of
Canada). Instead, the necessity of judicial review
on jurisdictional matters being available in the
provincial superior courts, notwithstanding the
provisions of the Federal Court Act, has been
based on a restrictive interpretation of section 101
of the Constitution Act, 1867. That section, how
ever, provides as follows:
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
[Emphasis added.]
The words "notwithstanding anything in this Act"
were analyzed by the late Chief Justice Duff in
Reference as to the Legislative Competence of the
Parliament of Canada to Enact Bill No. 9 of the
Fourth Session, Eighteenth Parliament of
Canada, Entitled "An Act to Amend the Supreme
Court Act", [1940] S.C.R. 49, at pages 63-64 in
dealing with the power of Parliament under sec
tion 101 to abolish appeals to the Judicial Com
mittee of the Privy Council. (It is interesting to
note that section 101 is the source of authority for
the creation of both the Supreme Court of Canada
and the Federal Court of Canada: indeed, the
predecessor of the Federal Court, the Exchequer
Court of Canada, was created by the same Act as
was the Supreme Court in 1875). The Chief Jus
tice observed, with respect to the authority granted
by section 101, that:
(a) Since this legislative authority may be executed in
Canada "notwithstanding anything in this Act," you cannot
imply any restriction of power because of anything in section
92. Assuming even that section 92 gives some authority to the
legislatures in respect of appeals to the Privy Council, that
cannot detract from the power of Parliament under section 101.
Whatever is granted by the words of the section, read and
applied as prima fade intended to endow Parliament with
power to effect high political objects concerning the self govern
ment of the Dominion (section 3 of the B.N.A. Act) in the
matter of judicature, is to be held and exercised as a plenary
power in that behalf with all ancillary powers necessary to
enable Parliament to attain its objects fully and completely.
This passage was cited with approval by Lord
Jowitt L.C., on behalf of the Judicial Committee
of the Privy Council in Attorney-General for
Ontario and Others v. Attorney-General for
Canada and Others and Attorney-General for
Quebec, [1947] A.C. 127, at page 152.
It may also be noted that section 91, under
which presumably section 122 of the Canada
Labour Code was adopted, includes in its opening
words the phrase "notwithstanding anything in
this Act" before enumerating heads of Parlia
ment's jurisdiction.
Provincial superior courts and their jurisdiction
are created under section 92, head 14 of the
Constitution Act, 1867. It might have been
thought, then, that there was a measure of author
ity under sections 91 and 101 to regulate the
timing, procedure and locus of judicial review
provided that such review was ultimately available
in constitutional cases. Or, in other words, that in
the present situation judicial review at a mature
stage of the proceedings by the Federal Court of
Appeal, subject to appeal to the Supreme Court of
Canada, might have sufficed.
That is not how the law has evolved, however,
and we are left with this situation in which I must
dismiss the application and leave the applicant if it
wishes to seek its remedies at this stage in the
Court of Queen's Bench of Manitoba or the
Supreme Court of Ontario (the proposed certifica
tion being allegedly in relation to business carried
on in both provinces).
The application is therefore dismissed. In the
circumstances, no costs are awarded.
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.