Supreme Court of Canada
CKCV (Québec) Ltée v. Canada Labour Relations Board, [1981] 1 S.C.R. 411
Date: 1981-05-11
CKCV (Québec) Limitée Appellant;
and
Canada Labour Relations Board Respondent;
and
National Association of Broadcast Employees and Technicians (AFL-CIO-CLC) and Sonia Labrecque Mis en cause.
1981: February 5; 1981: May 11.
Present: Laskin C.J. and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour law—Application for review of description of bargaining unit—Canada Labour Relations Board—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a), (b) and (c)—Canada Labour Code, R.S.C. 1970, c.L-1,s. 119.
Appellant is appealing from a judgment of the Federal Court of Appeal, which dismissed its action pursuant to s. 28 of the Federal Court Act, challenging an order of respondent Board regarding the certificate of certification of the mis en cause Association. This order was prior to the amendment of the Canada Labour Code in 1977, and was therefore subject to review not only in the event of failure to observe a principle of natural justice or for want of jurisdiction, but also for an error of law or even an error of fact. The Association’s application was for review of the description of the bargaining unit, pursuant to s. 119 of the Code. Appellant argued that it was actually a new application for certification of a bargaining unit, much larger and more extensive than the existing unit, that such an application should be heard and dealt with like an original application, and that the Board should therefore ascertain whether a majority of the persons concerned wished to be represented by the Association, and determine whether the unit extended in this manner constituted a unit appropriate for collective bargaining. It further maintained that the Board exceeded its jurisdiction by including free lancers in the bargaining unit.
Held: The appeal should be dismissed.
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The fact that the Board substituted the phrase “all the employees of CKCV…” for the general phrase “the employees of CKCV…”, followed by a list of positions included, had not the effect of enlarging the bargaining unit. The application made by the Association and the order made by the Board should not be confused. In the case at bar, the classifications already included amounted to sixteen positions, whereas the classifications covered by the application for review amounted to eighteen; but two of these eighteen positions were excluded by the Board; the seven free lance positions were also excluded; the seven temporary journalists and announcers were not mentioned in the order, nor were they in the earlier order; and with regard to the two other positions, which were not designated in the prior certificate, it is a matter for the Board to determine whether these are positions which should be excluded, and the Court was not shown any error by the Board in the determination which it made not to exclude them.
Canadian Overseas Telecommunications Union and Teleglobe Canada et al. (1979), 32 D.I. 270; The Employees of the Regional Comptroller and the Canadian National Railways and the Canadian Brotherhood of Railway, Transport and General Workers (1975), 9 D.I. 20, referred to.
APPEAL from a judgment of the Federal Court of Appeal[^1], dismissing the action brought under s. 28 of the Federal Court Act. Appeal dismissed.
Roy L. Heenan and Suzanne Thibodeau, for the appellant.
François Mercier, Q.C., for the respondent.
André Joli-Cœur and Claude Verge, for the mis en cause Association.
English version of the judgment of the Court delivered by
CHOUINARD J.—Appellant is appealing from a decision of the Federal Court of Appeal handed down on September 18, 1978, which dismissed its action pursuant to s. 28 of the Federal Court Act, challenging an order of the Canada Labour Relations Board (the Board), dated December 7, 1977, regarding the certificate of certification of the first mis en cause, the National Association of Broad-
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cast Employees and Technicians (AFL-CIO-CLC), hereinafter referred to as the Association.
By that order, respondent Board varied its earlier order of April 25, 1963, deleting the description of the bargaining unit which it contained and substituting a new one.
The 1963 order, which itself amended the original order of May 21, 1954, described the bargaining unit as follows:
…the employees of CKCV (Québec) Limited, Quebec City, Quebec, comprising employees classified as announcer, radio announcer (female), newsman, technical operator, maintenance technician, script writer, stenotypist, record librarian, receptionist, record library clerk, clerk typist, office clerk, traffic clerk, schedule clerk, log clerk, and office boy (junior), excluding the general manager, manager, comptroller, staff supervisor, accountant, assistant accountant, engineer, program director, business manager, sales and traffic promotion manager, production chief, French and English‑speaking secretaries to the general manager and the salesmen.
The new description which is at issue here reads as follows:
All employees of CKCV (Québec) Limitée, excepting the general manager, his executive secretary, the program and information director, the sales manager, the technical director, the production director, the comptroller, the salesmen and the freelancers.
It should be noted that appellant bases its action on paras. (b) and (c) of subs. (1) of s. 28 of the Federal Court Act as well as on para. (a) of the said section. Its action predates the amendment to s. 122 of the Canada Labour Code in 1977-78 (Can.), c. 27, s. 43, as a result of which orders or decisions of the Board are now only subject to review under para. (a). This order was therefore subject to review not only in the event of the Board’s failure to observe a principle of natural justice or for want of jurisdiction, but also for an error of law or even an error of fact, if the erroneous finding of fact was “made in a perverse
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or capricious manner or without regard for the material before it”.
The Association’s application, which is at issue here, was submitted pursuant to s. 119 of the Canada Labour Code, which empowers the Board to “review, rescind, amend, alter or vary any order or decision made by it”.
At the outset, appellant objected that strictly speaking this was not an application for review under s. 119, but a new application for certification of a bargaining unit much larger and more extensive than the existing unit.
It said in its factum:
[TRANSLATION] In appellant’s submission, the application was intended to widen the clearly defined bargaining unit so as to include persons who were never covered by the existing certification, and who were never considered by the mis-en-cause Association and by appellant as forming part of the bargaining unit, and to do so without the Association having first even determined whether these individuals wished to belong to it.
Appellant does not necessarily deny that a new bargaining unit can be defined as the result of an application for review under s. 119, but it submits that in such a case the application should be heard and dealt with like an original application for certification under ss. 124 et seq. of the Code. In particular, in appellant’s submission:
—the application must be submitted within the period provided in s. 124 of the Code: appellant admitted that in the case at bar the application was submitted within the period provided in s. 124(2)(c)of the Code;
—the Board must ascertain that the union is representative of the group of employees which it is seeking to add to the unit;
—the Board must ascertain that the union is representative of the new unit created;
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—the Board must ascertain whether the new unit is appropriate, that is, it must ensure that the unit is appropriate for collective bargaining.
The following two paragraphs contained in the Board’s order should be noted:
AND WHEREAS, following investigation and consideration of the submissions of the parties concerned, the Board is satisfied that the unit described hereunder is appropriate for collective bargaining;
AND WHEREAS the Board is satisfied that a majority of the employees in the employ of the said employer on December 2, 1977, and comprising part of the bargaining unit described below, wish to have the applicant represent them as their bargaining agent.
Briefly, the points raised by appellant in this appeal are:
[TRANSLATION] 1. Respondent Board, in its decision, limited itself to ascertaining whether the mis-en-cause Association was representative of the bargaining unit the complement of which it had almost doubled. However, under the Canada Labour Code respondent Board was under a duty to ascertain whether a majority of the persons whom it had decided to include in the existing unit wished to be represented by the mis-en-cause Association.
Since by its application the mis-en-cause Association sought to include in the bargaining unit a group of eighteen (18) persons performing duties which had always been excluded from this unit, it clearly had the burden of showing that the bargaining unit whose complement it sought to double was a unit appropriate for collective bargaining pursuant to sections 124 et seq. of the Canada Labour Code. Under these sections of the Code, respondent Board had a duty to determine, in light of evidence on this point, whether the unit extended in this manner constituted a unit appropriate for collective bargaining.
Respondent Board exceeded its jurisdiction by including free lancers in the bargaining unit, while the evidence showed that they are not employees within the meaning of section 107 of the Canada Labour Code, but independent contractors. Respondent Board also exceeded its jurisdiction by including free lancers in the existing bargaining unit in the absence of any evidence on the appropriate nature of a unit covering free lancers.
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In these three respects, appellant submitted, the Board exceeded its jurisdiction and its order should be quashed.
The Association submitted that the matter is quite different. It simply made an application for review, for updating, of a description which had become obsolete as a result of changes in the employer’s work organization and the classification of positions. Counsel for the Association stated:
[TRANSLATION] …For our part, we maintain that appellant is creating a problem where none exists: the application submitted to the Board is not one which the latter should examine to determine whether it is appropriate and representative, since in contrast with cases in which substantial changes to the certificate of certification are requested, the application by the mis-en-cause Association was intended merely to clarify the certificate already issued.
This was also the opinion of the Board, which wrote in its reasons[^2] in support of the order:
The certified Association sought through its application to have the order amended to take into account a number of changes in the classification list that had resulted from the passage of time and from changes in the employer’s structures and operational methods. It alleged that the description inadequately reflected the present situation.
To give some examples, the 1963 order took into account such classifications as: woman announcer, news clerk, shorthand typist, record library clerk, office clerk, schedule clerk, records clerk, office boy, manager, personnel director, accountant, assistant accountant, engineer, program director, commercial unit director, sales promotion and marketing director, production head, French-speaking secretary and English-speaking secretary. The evidence showed that each of these classifications had either ceased to exist or had been given a new name.
As a result of its investigation and its hearing of the parties, the Board was able to note in minute detail all the changes made and was in a position to make the necessary amendments.
The 1963 description of the bargaining unit began with the general phrase “employees of CKCV (Québec) Limited, Quebec City, Quebec”. This was followed by the words “comprising employees classified as …” followed by a list of
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the positions included. This in turn was followed by a list of excluded positions.
In Canadian Overseas Telecommunications Union and Teleglobe Canada et al.[^3], referring to the practice of its predecessor the Canada Labour Relations Board, the Board wrote, at pp. 306-7:
The Board is fully conscious that because of the practice of the predecessor Board to define bargaining units by way of an enumeration of classifications, there exists a considerable number of certification orders which, upon re-examination, could turn out to be far removed from the current realities in the enterprises where they are in existence. Indeed, almost every time that a party decides to deal with one, that file becomes a major issue before this Board.
As it is now well known, this Board has executed a significant turn in this connection in all applications for initial certifications, and its policy is to define bargaining units in universal terms:
“all employees of… excluding …”
I should say at once that in my opinion the fact that the Board substituted the phrase “all the employees of CKCV (Québec) Limitée” for the general phrase “the employees of CKCV (Québec) Limited, Quebec City, Quebec”, followed by a list of positions included, had not the effect of enlarging the bargaining unit. Clearly, from the point of view of grammar, “the employees of CKCV (Québec) Limited, Quebec City, Quebec” already covered all CKCV employees, apart from the exclusions specified, and the fact of placing after this phrase a list of the positions included did not have the effect of adding or deleting positions. Also, the Association and the Board represented to this Court that the 1963 certification certificate in fact covered all employees of CKCV, apart from exclusions.
However, this does not resolve the issue, as there could have been an addition to the bargaining unit as a result of the Board’s refusal to exclude positions which appellant sought to exclude. In its submission, the Board’s decision had the effect [TRANSLATION] “of almost doubling the complement of the Association”, without determining whether the Association was representative of the
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employees added or of the new unit and without determining whether it was appropriate, while furthermore, including in the unit independent contractors, namely free lancers.
In The Employees of the Regional Comptroller and the Canadian National Railways and the Canadian Brotherhood of Railway Transport and General Workers[^4], the Board at pp. 25-26 analysed the effect of s. 119 of the Canada Labour Code as follows;
Where a bargaining agent has been certified by a decision of the CLRB, at a later date the Board may be asked to review its original order to enlarge or to otherwise alter the bargaining unit for which the bargaining agent is certified. Such an application, although filed under Section 119 of the Code, is basically of the same nature as an application for certification. In such a case, if the application is granted, the revised order will be substantially different from the original one and, accordingly, such an application may only be granted if the applicant meets the basic requirements laid down in the Code for the granting of the original order.
Whenever an order or decision of the Board has a continuing effect, and this is typically the case where a Certification Order has been issued, various circumstances may change which may require corresponding amendments or clarifications of the Board’s original decision. For example, the name of the bargaining agent or that of the employer may have changed or the classification titles referred to in the Board’s order may be replaced by new ones. Alternatively, new classifications may have been created and it may be unclear whether they are dealt with by the Board’s original decision. In such case, an application may be filed under Section 119 asking the Board to review and alter its decision or to clarify it. Here, an eventual decision or application for review will not change the nature and effect of the original Board’s order. It will simply update or clarify the wording of the decision and accordingly, the Board must simply be satisfied that these changes are in order.
A party which is dissatisfied with an order or decision of the Board may also apply to the Board under Section 119 of the Act, asking it to review and reconsider its original decision and to issue a new order or decision. It
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will be noted that, whereas the situations described above may lead to a new decision of the Board as a result of a demand or as a result of circumstances that were different when the Board rendered its original decision, the situation described here is different: the Board is simply being asked to reconsider its decision because it is alleged that the decision was erroneous.
Although these three situations may lead to the filing with the Board of an application in accordance with the provisions of Section 119 of the Canada Labour Code, it is clear that the resulting applications for review cannot all be dealt with in the same manner or subjected to the same requirements. In the first instance, a new demand is presented to the Board by way of an application for review. If the application is granted, a new order or decision will issue to amend or replace the original decision. In such a case, the Board’s decision on the application for review may substantially alter the original decision but the change will have no retroactive effect. In the second case, the application for review will lead to clerical or technical changes in or to clarification of the Board’s original order or decision but without substantially affecting the nature or effect of the original order. In the third case, however, the Board is being asked to review and change an order or decision issued by it on the basis that the Board’s original decision was wrong or otherwise mistaken. If it is granted, the Board’s original decision or order may be substantially modified with the result that two different Board’s [sic] decisions could be rendered on the same original application; of course, the second decision would then supersede and replace the original one. In this case, the application for review bears some similarity to a motion for setting aside a judgment.
Appellant is not disputing the principles stated by the Board, which tie in with its arguments, especially as regards an application contemplated by paragraph 1 which “is basically of the same nature as an application for certification”, and as to which the Board stated that “such an application may only be granted if the applicant meets the basic requirements laid down in the Code for the granting of the original order”.
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However, appellant argued that in the case at bar these basic requirements should be applied and have not been.
It is thus necessary to analyse the original application of the Association and the Board’s order, to determine the scope of the latter and whether the Board omitted to observe the principles which it stated itself.
The application of the Association, which dates from December 28, 1976, read as follows:
[TRANSLATION] We are asking the Board to revise the certificate of certification issued on April 25, 1963 so as to reflect a bargaining unit described as follows: “All employees of the employer except for the general manager, the secretary to the general manager, the comptroller, the program manager and the sales manager”.
Under the heading of information requested in s. 32 of the Regulations of the Board, there is the following paragraph, which was greatly stressed by appellant:
[TRANSLATION] (d) In view of the standards for exclusion and inclusion which the Board has formulated since it was created, the union feels that the unit requested hereby would be more appropriate for collective bargaining. Additionally, the certificate amended on April 25, 1963 is in our opinion outdated.
The parsimony with which the Association suggested exclusions, together with the statement that “the union feels that the unit requested hereby would be more appropriate for collective bargaining”, might have justified appellant in regarding this as an application for certification of a new unit, different from the existing unit. However, the application submitted by the Association differs greatly from the order issued by the Board.
In accordance with the representations of the parties before the hearing, the following table was prepared for use by the Board, by one of its employees, of positions existing within appellant’s business, with the number of occupants alongside each position.
[TRANSLATION]
A. Classifications already included
Telephone receptionist 1 Assistant information manager 1
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Clerk-typist 1 Traffic (clerk) 1 Journalists 4 Sports journalist 1 Production (commercial producer) 1 Announcers 3 Record librarian 1 Production operator 1 Technician 1
B. Classifications covered by the application for review
Technical director 1 Secretary to comptroller 1 Free lance court reporter 1 Free lance announcer 1 Free lancers 5 Temporary journalists 3 Temporary announcers 4 Traffic and promotion manager 1 Sales secretary 1
C. Excluded classifications
General manager 1 Program and information manager 1 Sales manager 1 Executive secretary 1 Comptroller 1 Advertising consultants 4
It can be seen from this table that the classifications already included amounted to sixteen positions, whereas the classifications “covered by the application for review” amounted to eighteen. This is why appellant concluded that, taking into account the exclusions approved by the Board, its order had the effect of “almost doubling the complement of the Association”.
Appellant asked that all positions contained in paragraph B of the foregoing table be excluded.
It can be seen from reading the new certificate of certification that the technical director and the production director (described in the table as traffic and promotion manager) are excluded.
There are seven free lance positions in the table. It appears from the order of the Board that the free lancers are excluded, expressly and without distinction.
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Appellant concluded from the following passage, contained in the reasons for decision of the Board, that the free lancers were included:
It is certain that genuine free-lancers are not employees within the meaning of the Code, and that this classification must be excluded, as the Board has decreed. However, it is essential that the excluded free-lancers be those who satisfy the desired criteria. Otherwise, if their duties are the same as those performed by other employees of the employer, there is no cause for their being excluded from the appropriate bargaining unit if these other employees belong to the appropriate unit already determined by the Board and reviewed in the present case. Having heard and studied the extensive evidence in this regard and having excluded the classification of free-lancer after deliberating on this point, the Board wishes to point out that the only free-lancers to which this exclusion applies are Messrs. Robert Dupuis and Michel Guillot.
In my view, this passage has no legal effect. The reasons for judgment and the order of the Board are two separate documents. The reviewed certificate of certification issued by the order simply excludes free lancers. This order does not have the effect of determining which persons are included in the classification. That is another question, which of course is within the jurisdiction of the Board, but which certainly cannot be resolved by a remark or explanatory note in the reasons in support of an order of the Board reviewing the description of the bargaining unit.
Then there are the temporary journalists, three in number, and the four temporary announcers. No mention was made of temporary employees in the order. However, the prior order does not mention temporary employees either. It indicates that journalists and announcers are included in the bargaining unit without any distinction based on their temporary status, and in my view the new certificate in no way alters this. The new certificate of certification neither includes nor excludes temporary journalists and announcers any more than does the old one. If they were not included because they were not employees within the meaning of the Canada Labour Code, or for any other reason, they are no more so now. If they were included, they remain so. Here again, as I stated with regard to free lancers, I would say that this is
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another question which is not resolved by the new certificate of certification.
That leaves only the comptroller’s secretary (secretary to comptroller in the table) and the sales manager’s secretary (sales secretary in the table). These two positions were not designated in this manner in the prior certificate. It is clearly a matter for the Board to determine whether these are positions which should be excluded, and the Court was not shown any error by the Board in the determination which it made not to exclude them.
I am of the opinion that the changes made by the Board do not alter the nature and scope of the certificate of certification and of the bargaining unit, and that this was an order of review, not an order issuing a certificate of certification for a new bargaining unit. Accordingly, I conclude that the Board did not exceed its jurisdiction, that it did not fail to observe the principles applicable to an application for review under s. 119 of the Canada Labour Code, and that it committed no error of law or fact which could be a basis for quashing its order.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Heenan, Blaikie, Jolin, Potvin, Trépanier & Cobbett, Montreal.
Solicitors for the respondent: Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal.
Solicitors for the National Association of Broadcast Employees and Technicians: Langlois, Drouin & Associés, Quebec.
[^1]: 1978 CanLII 3575 (FCA), [1979] 2 F.C. 107. [^2]: (1977), 23 D.I. 104. [^3]: (1979), 32 D.I. 270. [^4]: (1975), 9 D.I. 20.