SUPREME COURT OF CANADA

Syndicat des employés de production du Québec v. CLRB, [1984] 2 S.C.R. 412

Date: 1984-11-22

Syndicat des employés de production du Québec et de l'Acadie Appellant;

and

Canada Labour Relations Board Respondent;

and

Canadian Broadcasting Corporation Respondent;

and

Roger Cuerrier et al. Mis en cause;

and

Deputy Attorney General of Canada, Department of Justice Mis en cause.

and between

Canada Labour Relations Board Appellant;

and

Syndicat des employés de production du Québec et de I'Acadie Respondent;

and

Canadian Broadcasting Corporation Respondent;

and

Roger Cuerrier et al. Mis en cause;

and

Deputy Attorney General of Canada, Department of Justice Mis en cause.

File No.: 16613.

1983: February 1, 2; 1984: November 22.

Present: Laskin C.J. * and Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations — Strike — Concerted refusal of employees to work overtime — Declaration that strike unlawful and prohibition of strike — Whether Canada Labour Relations Board exceeded its jurisdiction —

[page 413]

Canada Labour Code, R.S.C. 1970, c. L-1, ss. 107 (ad. 1972 (Can.), c. 18, s. 1), 182 (ad. 1972 (Can.), c. 18, s. 1; rep. and repl. 1977-78 (Can.), c. 27, s. 64).

Labour relations — Unlawful strike — Special remedy — Order to parties to refer matter of overtime to arbitration — Remedy not authorized by Canada Labour Code — Remedy set aside — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(p) and 121 (ad. 1972 (Can.), c. 18, s. 1), 182 and 183 (ad. 1972 (Can.), c. 18, s. 1; rep. and rep/. 1977-78 (Can.), c. 27, s. 64), 183.1 (ad. 1977-78 (Can.), c. 27, s. 64), 189 (ad. 1972 (Can.), c. 18, s. 1; am. 1977-78 (Can.), c. 27, s. 68).

Judicial review — Order of Canada Labour Relations Board — Remedy not authorized by Code — Jurisdictional error at conclusion of hearing — Error within s. 28(1)(a) of Federal Court Act — Patently unreasonable error rule not applicable — Canada Labour Code, R.S.C. 1970, c. L-1, s. 122 (ad. 1972 (Can.), c. 18, s. 1; rep. and repl. 1977-78 (Can.), c. 27, s. 43) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).

After hearing the application made by the CBC pursuant to s. 182 of the Canada Labour Code, the Canada Labour Relations Board first found that the concerted refusal by production employees of the CBC to work overtime constituted an unlawful strike within the meaning of the Code, and second, ordered the Union and the CBC to submit the problem of overtime to arbitration. Arguing that the Board had exceeded its jurisdiction in both cases, the Union filed in the Federal Court of Appeal an application to review and set aside based on s. 28(1)(a) of the Federal Court Act. This application was allowed in part. The Court affirmed the first part of the order but set aside the second, finding that the Board had no jurisdiction to order the parties to refer the question of overtime to arbitration. The Union and the Board appealed from this decision. The present appeals are to determine whether the Board exceeded its jurisdiction, first, by finding that the refusal to do overtime constituted a strike, and second, by ordering the parties to submit the question of overtime to arbitration.

Held: The appeals should be dismissed.

[page 414]

The Canada Labour Relations Board did not exceed its jurisdiction in finding that the collective ban on overtime constituted an unlawful strike within the meaning of the Code. It is wrong to suggest that in making this decision the Board committed a jurisdictional error on a preliminary matter fundamental to the exercise of its jurisdiction. The question of whether there is a strike is not a preliminary one: it is an integral part of the problem which the Board alone is responsible for settling. The wording of s. 182 does not justify separating it so as to place the question of the existence of a strike and of its legality on different levels. The Board clearly had jurisdiction under that section to resolve this matter, and its decision, based on abundant earlier authority, does not seem to be so patently unreasonable that its construction cannot be supported by the relevant legislation and demands intervention by the Court upon review.

However, the Board exceeded its jurisdiction by ordering the parties to refer the problem of overtime to arbitration. Sections 182, 183.l, 121 and 118(p) of the Canada Labour Code, taken together or in isolation, do not give the Board the power to make such an order. The Board erred in interpreting the provisions conferring jurisdiction and exercised a power which is not within those conferred upon it. Such an error falls within the scope of s. 28(1)(a) of the Federal Court Act and is subject to having the decision containing it set aside. That section does not distinguish between types of excess of power, the stages of the hearing at which they occur and the circumstances causing them. It applies to any excess of power.

There is also no basis for considering, in connection with this part of the order, whether the Board's decision is based on a reasonable interpretation of the Act. The patently unreasonable interpretation rule applies only to errors which an administrative tribunal may have made in deciding a question considered as falling within the limits of its jurisdiction. The rule does not apply to a jurisdictional error.

Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, applied; National Bank of Canada v. Retail Clerks' International Union, 1984 CanLII 2 (SCC), [1984] 1 S.C.R. 269; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, considered; Teamsters Union, Local 938 v. Massicotte, 1982 CanLII 18 (SCC), [1982] 1 S.C.R. 710; Blanco v. Rental Commission, 1980 CanLII 230 (SCC), [1980] 2 S.C.R. 827;

[page 415]

C.L.R.B. v. Halifax Longshoremen's Association, 1983 CanLII 133 (SCC), [1983] 1 S.C.R. 245; Alberta Union of Provincial Employees v. Board of Governors of Olds College, 1982 CanLII 186 (SCC), [1982] 1 S.C.R. 923; St. Luc Hospital v. Lafrance, 1982 CanLII 187 (SCC), [1982] 1 S.C.R. 974; Bibeault v. McCaffrey, 1984 CanLII 133 (SCC), [1984] 1 S.C.R. 176; Komo Construction Inc. v. Commission des relations de travail du Québec, 1967 CanLII 118 (CSC), [1968] S.C.R. 172; Weyerhaeuser Canada Ltd. and Pulp, Paper, Woodworkers of Canada, Local 10, [1976] 2 Can LRBR 41; MacMillan Bloedel (Alberni) Ltd. v. International Woodworkers of America, Local 1-85 (1969), 1969 CanLII 1197 (BC SC), 71 W.W.R. 561 (S.C.); (1970), 1970 CanLII 1140 (BC CA), 73 W.W.R. 584 (C.A.); National Harbours Board and The Officers of the Respondent Union and the Employee Members of the Union, [1979] 3 Can LRBR 502, referred to.

APPEALS from a judgment of the Federal Court of Appeal, 1981 CanLII 4642 (FCA), [1982] 1 F.C. 471, which set aside in part an order of the Canada Labour Relations Board (1980), 40 di 35, [1981] 2 Can LRBR 52. Appeals dismissed.

Ian Scott, Q.C., and Louis LeBel, for the Canada Labour Relations Board.

Michel Robert, for the Syndicat des employés de production du Québec et de l'Acadie.

Roy L. Heenan, for the Canadian Broadcasting Corporation.

English version of the judgment of the Court delivered by

BEETZ J.—

I—Proceedings and facts

The two appeals, that of the Syndicat des employés de production du Québec et de l'Acadie (the "Syndicat") and that of the Canada Labour Relations Board (the "Board"), are from a decision of the Federal Court of Appeal dismissing in part and allowing in part an application by the Syndicat to review and set aside an order made by the Board. This order allowed an application by the Canadian Broadcasting Corporation (the "CBC") for a declaration of an unlawful strike, and prohibition of the strike, based on s. 182 of the Canada Labour Code, R.S.C. 1970, c. L-1 (the "Code"). The application to review and set aside made by the Syndicat was based on s. 122(1) of

[page 416]

the Code and s. 28(1)(a) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.

The decision of the Federal Court of Appeal was published sub nom. Syndicat des employés de production du Québec et de l'Acadie v. C.L.R.B., 1981 CanLII 4642 (FCA), [1982] 1 F.C. 471. It was heard by Pratte and Le Dain JJ. and Hyde D.J. The unanimous reasons of the Court were rendered by Pratte J. who described the facts at pp. 472-74:

On November 30, 1979 the Board received an application made by the Canadian Broadcasting Corporation pursuant to section 182 of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended. The Corporation alleged that its production employees in Montreal, Quebec and Moncton were participating in an unlawful strike authorized by applicant Union by refusing, at the behest of the Union, to do overtime; it asked the Board to rule that this concerted refusal to do overtime constituted an unlawful strike and order the Union to revoke its decision to authorize this strike and to inform employees thereof forthwith, and prohibit the employees in question from proceeding with the strike. The Board held an inquiry and heard the parties. It found that, pursuant to section 180 of the Canada Labour Code, the employees in question were not authorized to strike, that the Union had in fact given these employees an instruction to refuse to do overtime, and further that this instruction was more fully complied with by employees in Moncton and Quebec City than in Montreal; finally, it found that the Union had given this instruction as a means of inducing the Corporation to recognize that, under the collective agreement in effect, it did not have a right to require its employees to do overtime. On December 5, 1979, the Board allowed the application of the Canadian Broadcasting Corporation; its decision is contained in paragraphs 3 and 4 of the order it made on that day:

3. Moreover, the ban on overtime constitutes an unlawful strike within the meaning of the Code and the Board so declares.

However, the Board has decided in the present circumstances and for the time being, to exercise its discretion and not issue an order in this regard with respect to the Corporation's employees in Montreal, but hereby orders that the said ban be ended immediately in Moncton and Quebec City, that all employees in the bargaining unit and the respondent union in these two locations comply with this order immediately,

[page 417]

as well, the respondent union shall give notice of this order to all its members immediately;

4. The two parties, namely, the respondent union and the Canadian Broadcasting Corporation, French Services Division, are ordered to immediately submit the problem of whether or not overtime is voluntary according to the provisions of the collective agreement now in force, to an arbitrator appointed pursuant to the provisions of section 155(2)(c) and/or (d) of the Canada Labour Code, by means of one of the grievances which is now pending and which deals with this question. The arbitrator shall give priority to this matter in accordance with the expedited arbitration procedure, and his decision should resolve this problem until the signing of a collective agreement which will replace the present one, which may contain different provisions on this subject.

As Pratte J. noted, the first two paragraphs of the order made by the Board allowed another application made by the CBC concurrently regarding another group of employees. These first two paragraphs are not at issue.

The Federal Court of Appeal dismissed the application to review and set aside paragraph 3 of the order made by the Board, but it allowed the application in respect of paragraph 4 of the order, and set aside this paragraph, which it considered was beyond the jurisdiction of the Board.

In its appeal, the Syndicat is asking this Court to reverse the part of the decision of the Federal Court of Appeal dismissing its application to review and set aside paragraph 3 of the order made by the Board; it also opposes the latter's appeal, and asks the Court to affirm the part of the Court of Appeal decision setting aside paragraph 4 of the order.

The Board takes the converse position. It defends its jurisdiction, asks the Court in its appeal to reverse the part of the Federal Court of Appeal judgment setting aside paragraph 4 of its order, opposes the appeal by the Syndicat, and asks the Court to affirm the part of the Court of Appeal decision dismissing the application to review and set aside paragraph 3.

[page 418]

For its part, the CBC filed a submission opposing the appeal of the Syndicat.

The other parties were not represented at the hearing.

II—Legislation

The principal provisions setting out the Board's jurisdiction in the case at bar are contained in ss. 182 and 183.1 of the Code:

182. Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order

(a) requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed;

(b) enjoining any employee from participating in the strike;

(c) requiring any employee who is participating in the strike to perform the duties of his employment; and

(d) requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies.

183.1 (1) An order made under section 182 or 183

(a) shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case; and

(b) subject to subsection (2), shall have effect for such time as is specified in the order.

(2) Where the Board makes an order under section 182 or 183, the Board may, from time to time on application by the employer or trade union that requested the order or any employer, trade union, employee or other person affected thereby, notice of which application has been given to the parties named in the order, by supplementary order

[page 419]

(a) continue the order, with or without modification, for such period as is stated in the supplementary order; or

(b) revoke the order.

Reference was also made to ss. 118(p) and 121:

118. The Board has, in relation to any proceeding before it, power

(p) to decide for all purposes of this Part any question that may arise in the proceeding ...

121. The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by, or as may be incidental to the attainment of the objects of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Part, with any regulation made under this Part or with any decision made in respect of a matter before the Board.

However, reference should also be made to s. 122(1) of the Code and s. 28(1)(a) of the Federal Court Act.

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 section 28(1)(a) of the Federal Court Act.

123. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or other tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

It should be recalled that privative clauses like those resulting from the combined effect of these last two provisions do not confer a right of appeal. They do not empower the court undertaking the review to make the decision which an administrative tribunal like the Board should have made,

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though they allow it to indicate in some cases what it should have done and to refer the case back to it for action accordingly. They do not even empower the court to set aside the decision of an administrative tribunal because of a mere error of law. If the Board commits such an error, its decision remains unassailable.

A mere error of law is an error committed by an administrative tribunal in good faith in interpreting or applying a provision of its enabling Act, of another Act, or of an agreement or other document which it has to interpret and apply within the limits of its jurisdiction.

A mere error of law is to be distinguished from one resulting from a patently unreasonable interpretation of a provision which an administrative tribunal is required to apply within the limits of its jurisdiction. This kind of error amounts to a fraud on the law or a deliberate refusal to comply with it. As Dickson J. (as he then was) described it, speaking for the whole Court in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227 at p. 237, it is

... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review ...

An error of this kind is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice. Such an error falls within the scope of s. 28(1)(a) of the Federal Court Act, and is subject to having the decision containing it set aside.

A mere error of law should also be distinguished from a jurisdictional error. This relates generally to a provision which confers jurisdiction, that is, one which describes, lists and limits the powers of an administrative tribunal, or which is [TRANSLATION] "intended to circumscribe the authority" of that tribunal, as Pigeon J. said in Komo Construction Inc. v. Commission des relations de travail du Québec, 1967 CanLII 118 (CSC), [1968] S.C.R. 172 at p. 175. A jurisdictional error results generally in an excess of jurisdiction or a refusal to exercise jurisdiction,

[page 421]

whether at the start of the hearing, during it, in the findings or in the order disposing of the matter. Such an error, even if committed in the best possible good faith, will result nonetheless in the decision containing it being set aside, because it also falls within s. 28(1)(a) of the Federal Court Act.

Another error which has sometimes been regarded as jurisdictional is one relating to a matter which is preliminary or collateral, but supposedly essential to the exercise of the jurisdiction as a kind of condition thereof. This however is a fleeting and vague concept against which the courts were warned by this Court in New Brunswick Liquor Corporation (supra), at p. 233, once the initial jurisdiction of the administrative body holding the hearing has been established at the outset.

III—Appeal by the Syndicat

In view of the limitations imposed on the review power of the Federal Court of Appeal by s. 28(1)(a) of the Federal Court Act, the principal argument of the Syndicat is the jurisdictional error which it said the Board committed in deciding that the ban on overtime constituted a strike. In its submission, it said:

[TRANSLATION] The Federal Court of Appeal, by refusing to set aside the order contained in paragraph 3, erred in law in that the Board, when it ruled that the refusal to do overtime, which was in fact optional, constituted a strike, committed an error of law and of fact on an essential matter on which the exercise of its jurisdiction under s. 182 of the Canada Labour Code depended, namely the existence of a strike at the CBC.

Section 182 of the Canada Labour Code confers on the Board the power to declare whether a strike "was, is or would be unlawful" and the power to make the orders mentioned in paras. (a), (b), (c) and (d) of the said section. The Board's power is thus concerned essentially with the legality of the strike.

However, there must be a strike in progress within the meaning of s. 107(l) of the Canada Labour Code. The existence of a strike, a mixed question of law and fact, is a preliminary, fundamental and collateral condition for

[page 422]

the exercise of the Board's jurisdiction over the declaration of illegality mentioned in s. 182 of the said Code, otherwise no order can be made under that section.

For the Board to have jurisdiction to make an order under s. 182 of the Canada Labour Code, there must first have been a strike, giving the Board the jurisdiction that enables it to make such an order, or it will lose its jurisdiction to do so. The existence of a strike is thus a prerequisite to the existence of the Board's jurisdiction to make an order under s. 182 of the said Code.

The Syndicat alleged alternatively that, by deciding that the concerted refusal to do optional overtime constituted a strike within the meaning of s. 107 the Board committed

[TRANSLATION] . . . at least ... a patently unreasonable error of law depriving it of all jurisdiction and forming a basis for judicial review.

In my opinion the Court cannot accept the Syndicat's main submission, namely that the Board's jurisdiction is concerned essentially with the legality of a strike, a question on which it could be in error without the validity of its decision being affected thereby, but depends on the existence of a strike, another matter which it must deal with without being in error, otherwise it will be acting beyond its jurisdiction. By this arbitrary division of the Board's powers, not justified either by the wording of s. 182 of the Code or by principle, the Syndicat is artificially introducing into the discussion the very concept of an error on a preliminary matter essential to the exercise of the jurisdiction which this Court sought to avoid in New Brunswick Liquor Corporation (supra).

According to the actual wording of s. 182 of the Code, the Board has jurisdiction when it has before it an application by the employer on a twofold basis: first, "that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike"; and second, "the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part". When it has such an application before it, the Board must of necessity rule on each of the two claims, and make the declaration requested if

[page 423]

it is of the opinion that the two claims are valid. It may also make the other orders mentioned in s. 182. The question of whether there is a strike is not a preliminary one: it is an integral part of the principal problem which the Board alone is responsible for settling, as to whether there was an unlawful strike.

As counsel for the Board correctly argued in their submission:

[TRANSLATION] The proper jurisdiction of the Board, when it has before it an application under s. 182, consists in determining whether the situation alleged by the employer constitutes an unlawful cessation of work within the meaning of the Canada Labour Code. Even in the narrowest interpretation of the Board's duties under s. 182, the role given to the Board is to determine whether the situation of fact alleged by the employer and established by the evidence presented before the Board does in fact constitute a strike. It is for the Board and for no other body to determine whether there is an unlawful strike.

I would add that both the question of the existence of a strike and of its legality belong to this category of questions which falls within the special expertise of the Board, and there is no theoretical or practical reason to separate them by placing them on different levels—quite the contrary. In order to answer these questions, the Board must investigate the facts and interpret the statutory definition of a strike contained in s. 107(1) of the Code:

"strike" includes

(a) a cessation of work or a refusal to work or to continue to work by employees, in combination or in concert or in accordance with a common understanding, and

(b) a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;

The Board is also required to interpret s. 180 of the Code, which prescribes the conditions on which strikes and lockouts will be legal. These provisions do not confer jurisdiction, and the Board must interpret them within the limits of the exclusive jurisdiction conferred on it by s. 182. The latter section does confer jurisdiction, but the so-called jurisdictional error which the Syndicat alleges the

[page 424]

Board made in the first of these two appeals does not relate to this section.

The alternative argument made by the Syndicat, namely the patently unreasonable nature of the Board's decision, also appears to me to be without foundation.

In finding that the collective ban on overtime was a strike, the Board relied on what it described as uniform earlier authority, described by the Federal Court of Appeal as abundant, to the effect that the right of employees to individually refuse to do overtime, when such a right exists, does not preclude a conclusion that there is a strike within the meaning of s. 107(1) of the Code when that right is exercised by employees in a collective, concerted and systematic way. See, for example, Weyerhaeuser Canada Ltd. and Pulp, Paper Woodworkers of Canada, Local 10, [1976] 2 Can LRBR 41; National Harbours Board and The Officers of the Respondent Union and the Employee Members of the Union, [1979] 3 Can LRBR 502; MacMillan Bloedel (Alberni) Ltd. v. International Woodworkers of America, Local 1-85 (1969), 1969 CanLII 1197 (BC SC), 71 W.W.R. 561 (B.C.S.C.); (1970), 1970 CanLII 1140 (BC CA), 73 W.W.R. 584 (B.C.C.A.)

I do not think it is possible to argue that this decision is

... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review …

Finally, the Syndicat alleged that the Board had not itself decided whether the overtime was individually optional under the collective agreement, and in light of certain provisions of the Code such as ss. 29, 29.1, 30, 31, 32 and 33 regarding hours of work.

These provisions do not confer jurisdiction either, and the Board would not have exceeded its jurisdiction even if it had erred in interpreting them. It is true that the Board did not undertake to interpret them: however, s. 182 of the Code does not in any way require the Board to decide such a question. Moreover, in making the decision it made in paragraph 3 of its order, the Board

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assumed that the overtime was individually optional, as the Syndicat argued. The latter cannot expect more than that.

On the appeal of the Syndicat as a whole, I am entirely in agreement with the reasons of the Federal Court of Appeal at pp. 474-75:

In its application the Canadian Broadcasting Corporation asked the Board to exercise the authority conferred upon it by section 182. In exercising that authority, the Board had to hear the application and decide whether it should be allowed. Among other questions, the Board had to decide whether the concerted refusal of the employees to do overtime constituted a strike within the meaning of the Act. It was for the Board to answer this question, and in doing so, it remained within the limits of its jurisdiction unless its reply was based on a manifestly unreasonable interpretation of the Act. In deciding that the refusal to do overtime constituted a strike, the Board relied on a large number of precedents; I think it is clear that its decision cannot be said to be manifestly incorrect or based on an unreasonable interpretation of the Act. It follows that, even if the Board was mistaken on this point, it did not on that account cease to have jurisdiction over the matter.

I would dismiss the appeal of the Syndicat with costs in favour of the Board and the CBC.

IV—Appeal by the Board

This appeal relates to paragraph 4 of the order made by the Board, which was set aside by the Federal Court of Appeal.

1. Reasons of the Board

In its reasons, 40 di 35, the Board mentions the circumstances which led it to make this part of its order, the problems which it sought to remedy by this means and the provisions and principles which in its opinion gave it the power to make this kind of decision (at p. 39):

The ban on overtime stems from a series of grievances filed under the provisions of the collective agreement between C.U.P.E. and the Corporation, in force from 1973 to 1975. The relevant section of this collective agreement, Article 30, has not changed significantly over the years.

After citing article 30 of the collective agreement, the Board continued:

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The issue between the parties is whether overtime is voluntary on the part of an employee or can be required of him by the employer. The union contends that under the collective agreement, an employee has the right to refuse to work overtime. As might be expected, the employer has argued the opposite position.

What is the background to this dispute? It is appropriate to consider this question because it will enable us to determine the root cause of the dispute between the Corporation and the union.

The Board then related how the contradictory opinions expressed by judges and arbitrators had fuelled the dispute, by finding sometimes in favour first of the Syndicat and sometimes of the CBC on the object of their dispute. In October 1975, the Superior Court enjoined the Syndicat to cease supporting the refusal to work, but expressly exempted overtime from the injunction order. The CBC nevertheless imposed disciplinary penalties on several employees who refused to work overtime, and they filed grievances against these penalties. In 1978, these grievances were allowed by Mr. Justice André Montpetit, acting as an arbitrator. In finding that overtime is individually optional, Mr. Justice Montpetit relied on his interpretation of ss. 29 and 30 of the Code regarding hours of work. The CBC attempted unsuccessfully to evoke this arbitral award to the Superior Court: Beauregard J., as he then was, dismissed the application for evocation because in his opinion Mr. Justice André Montpetit had acted within the limits of his jurisdiction. In a long obiter dictum, however, he expressed the opinion that the interpretation placed on ss. 29 and 30 of the Code by Mr. Justice André Montpetit was nevertheless wrong.

The Board wrote (at p. 41):

The parties have been bombarding each other ever since.

A series of grievances arising from the refusal to work overtime were presented in the meantime, and despite the decision by Judge Montpetit and the legal proceedings before the regular courts, the parties failed to settle their dispute concerning the interpretation of article 30 of the collective agreement. This guerilla warfare has been going on for the last six years.

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It is interesting to note that during the difficult negotiations presently underway, as well as during the conciliation proceedings, the parties have yet to settle the overtime question. However, it should be pointed out that the union is demanding a clarification of the text which would of course, make the performance of overtime voluntary for the employees whom it represents. The Corporation has thus far refused to agree to this demand.

The Board then analysed the evidence and the law, concluding that the ban on overtime constituted an unlawful strike and finding that it could apply s. 182 of the Code. The Board went on (at pp. 46 et seq.):

However, as the Board explained in several earlier decisions, most notably National Harbours Board, 33 di 530; [1979] 3 Can LRBR 502; 79 CLLC ¶ 16,204; work stoppages during the term of a collective agreement are in general regarded as symptomatic of deep-seated problems between the parties, which cause a flare-up of hostility between them outside the normal framework of the labour relations system sanctioned by the Code. In such a context, this Board is aware the mere exercise of the considerable powers conferred on it by sections 182 and 183 of the Code is not necessarily the appropriate response to a violation of article 180.

Section 182 of the Code gives the Board the authority to declare a strike unlawful and to order the employees who are members of a union to return to work. However, the Code also recognizes that the circumstances surrounding an illegal work stoppage may vary from case to case. Section 183.1(1) stipulates that the Board's response to an unlawful strike or lockout should be based on the specific context in which the work stoppage occurs.

The Board is thus empowered through discretionary authority given it by sections 182, 183 and 183.1(1), to fashion remedies appropriate to the situation with which it is confronted.

Matters are complicated, as we have seen, by the fact that all the arbitration and court proceedings have not produced a clear interpretation of the provisions dealing with overtime, namely, article 30 of the collective agreement.

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While it is clear that overtime is a subject of the current negotiations, considering the accumulation of related grievances, the appropriate resolution of the matter would seem to us to be to bring it before an arbitrator who would determine clearly if in fact overtime, according to the terms of the existing collective agreement, is voluntary on the part of each employee. This should be done concurrently with the continuation and completion of the current round of collective bargaining. It would have the beneficial effect of settling the problem temporarily, even if one or the other of the two parties eventually resorts to economic pressure, that is, to a legal work stoppage, to apply leverage in order to change a situation which, it feels, is unfavourable as a result of the arbitration and which could not be settled by negotiation.

During the public hearings held in connection with the Board's inquiry into this case, repeated adjournments were ordered to enable the Board to explore in-camera directly with the parties, possibilities of a solution to this thorny problem. Among others, a suggestion was made to the parties that they proceed to expedited arbitration in order to deal with this part of the problem and to settle it, at least temporarily, until a new collective agreement is signed, or until such time as one of the parties deems it advisable to exercise its right to declare a strike or lockout. The suggestion was rejected.

It is in the light of these facts that the Board analysed both the underlying source of the dispute over the overtime ban and the kind of remedy which could effectively re-establish the balance of forces at a critical point in negotiations for the renewal of the collective agreement, and at the same time ensure compliance with the essential provisions of the Code.

The Board announced that it would render the decision contained in paragraph 3 of its decision. It then concluded:

In addition, in an effort to improve the general climate of labour relations between the parties, and under the powers conferred on it under sections 182 and 183.1 of the Code, the Board orders the parties to submit the question of whether or not overtime is voluntary to an arbitrator who will proceed in accordance with the now familiar process of expedited arbitration. This should clarify the situation until the collective agreement is renewed, with or without a legal work stoppage.

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2. Reasons of the Federal Court of Appeal

Pratte J. observed (at p. 476), regarding ss. 182 and 183.1(1)(a) of the Code, given by the Board as the basis for its decision in paragraph 4 of its order:

I think it is clear that the order requiring the problem of overtime to be referred to arbitration is not one which is authorized by section 182. This can readily be seen from reading paragraphs (a), (b), (c) and (d) of that section. The order also does not appear to be authorized by section 183.l. The only part of that section which is relevant to this issue is paragraph 183.1(1)(a). In my view, this provision does not enable the Board to make any orders other than those provided for in sections 182 and 183; it only empowers the Board to attach the conditions which it considers appropriate to the orders which it makes under those sections. I therefore conclude that neither section 182 nor section 183.l gave the Board the power to make the order contained in paragraph 4 of its decision.

The Board did not refer to s. 118(p) or to s. 121 of the Code in its reasons; but its counsel cited s. 121 both in the Federal Court of Appeal and in this Court, and they referred to s. 118(p) in this Court. Pratte J. commented on the scope of s. 121, at p. 476-77:

Counsel for the Board and the Canadian Broadcasting Corporation argued that this section authorized the Board to make the decision at issue. This decision was clearly made because the Board felt it was necessary in order to re-establish good relations between the Canadian Broadcasting Corporation and its employees. It was argued that as the establishment of good industrial relations is one of the purposes of Part V of the Code, and as section 121 confers on the Board all the powers necessary to carry out these purposes, it follows that this section empowered the Board to make the decision at issue. I cannot agree with this argument. If section 121 were given such a scope, the many provisions of the Act that specify the Board's powers would be rendered useless. ln my view, the scope of section 121 is more modest. I consider that at the outside this section relates only to the powers necessary to perform the duties expressly imposed by the Act on the Board; however, as I understand it the Act does not impose on the Board a duty to resolve labour disputes which may be the cause of strikes.

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3. Arguments made by the Board

The arguments made by counsel for the Board may be stated in three propositions.

First proposition: it is not the Board but the Federal Court of Appeal which erred in its unduly restrictive interpretation of the applicable provisions.

Second proposition: the error committed by the Board, if any, was not a jurisdictional error.

Third proposition: the decision set aside by the Federal Court of Appeal is neither unreasonable nor based on a patently unreasonable interpretation of the Board's powers.

First proposition

Counsel for the Board conceded that the power claimed by the latter to refer to arbitration is not expressly conferred on it by any of the particular provisions relied upon them. However, in their submission these provisions taken as a whole and given a liberal interpretation, in light of the objects of Part V of the Code referred to in s. 121, enable the Board to adapt the orders which it makes under ss. 182 and 183.1(1)(a) to the circumstances of each case, not only so as to put an end to labour disputes but to remedy their causes and prevent their recurrence. After citing s. 121, counsel for the Board wrote in their submission:

[TRANSLATION] This provision, linked to the privative clause of s. 122, enables the C.L.R.B. in very delicate areas such as unlawful strikes, unfair practices and technological change to apply initiative and creativity in exercising the various jurisdictions gradually conferred on it by the Labour Code.

Almost adopting the language used by the Board in its reasons, to the effect that under ss. 182 and 183.1(1)(a) it is given [TRANSLATION] "discretionary powers which it exercises . . . to fashion remedies appropriate to the circumstances confronting it", counsel for the Board went on to say in their submission:

[page 431]

[TRANSLATION] The Canada Labour Code has conferred on the C.L.R.B. the jurisdiction to define the remedies necessary to terminate certain types of labour disputes, and also to prevent their recurrence by the establishment of good relations between the parties. This definition of remedies is its function. It is not a matter for the superior courts.

Counsel for the Board concluded:

[TRANSLATION] In short, how can the C.L.R.B. be blamed for asking the parties to comply with the Labour Code and to submit their dispute regarding interpretation of the collective agreement to arbitration?

In my view, the first proposition is without merit.

If none of the particular provisions relied on by the Board has, by itself, the effect of conferring on it the power which it exercised, I do not see how taking these provisions together could produce such a result. And it seems clear that none of them has the scope claimed for it by the Board, so as to provide a jurisdictional foundation for paragraph 4 of its order.

I referred above to the reasons given by Pratte J. concerning ss. 182 and 183.1(1)(a). These reasons seem to me to be unimpeachable and I adopt them. I cannot add very much to them, except to say that the English version of s. 183.1(1) (a) confirms the Federal Court of Appeal interpretation. According to this version, the orders made under s. 182

shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case;

This wording indicates that the Board has been given the power to attach modalities or conditions to orders made under s. 182: an example of this is paragraph 3 of the Board's order, limiting to Moncton and Québec the direction to cease the ban on overtime. Unquestionably, the Board can attempt by this means to adapt the orders it makes under s. 182 to the circumstances of each case, but in respect of unlawful strikes it cannot make any orders other than those mentioned in that section, however advisable they may be or may seem to be.

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Interpretation of s. 121 of the Code is not facilitated by its loose wording. Nonetheless, however liberal a construction it should be given, it cannot be read, as Pratte J. properly observed, so as to render unnecessary the other provisions of the Code including ss. 183 and 183.1(1)(a), which set forth the Board's powers. This would be the result of the argument made by counsel for the Board. By rendering unnecessary the other provisions setting forth the Board's powers, that proposition not only infringes the rules of interpretation but at the same time eliminates the limitations inherent in those provisions and is contrary to the intent of the legislator who enacted them. The interpretation proposed by counsel for the Board has even more extreme consequences, which counsel for the Syndicat correctly described as follows:

[TRANSLATION] ... adopting the argument made by counsel for the Board in their submission as to the powers conferred on the Board by s. 121 of the Canada Labour Code in conjunction with the preamble to Part V of the said Code would amount to a recognition that the Board has complete power and authority in the field of labour relations in Canada (except for powers specifically conferred on other bodies or jurisdictions), even powers which the legislator has not conferred on it, and make the said preamble a source of power and authority.

The legislator intended that the Board's powers should be extensive: he did not intend that they should be practically unlimited.

It is quite possible that s. 121 covers only the powers necessary to perform the tasks expressly conferred on the Board by the Code, as Pratte J. indicated. Nevertheless, I consider that even if it covers autonomous or principal powers, like that of ordering a reference to arbitration, and not merely incidental or collateral powers, it cannot cover autonomous powers designed to remedy situations which the Code has dealt with elsewhere, and for which it has prescribed specific powers, as is the case with unlawful strikes. Here, the legislator has not only specified the principal powers of the Board in s. 182, but its collateral powers as well in s. 183.1. These two sections contain an exhaustive

[page 433]

description of the Board's authority over unlawful strikes and cover it completely.

Section 118(1)) of the Code allows the Board to resolve questions with which it may be presented in the course of a hearing in progress before it, so that it can make the executory decisions which it is authorized to make by other provisions; but I do not consider that it gives the Board the power to make further executory orders as part of its final decision.

The power claimed by the Board by implication in paragraph 4 of its order is of a quite exceptional nature. It is the power to intervene in the grievance procedure ex officio and to direct the parties to complete it by conducting it along certain lines. The Code provides in s. 155 that every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences concerning the interpretation or application of the collective agreement, and itself provides an arbitration procedure when the agreement does not contain such a clause. In the case at bar, the parties agreed on a procedure for the settlement of grievances in article 57 of their collective agreement. It involves a three-stage procedure. It is not until the third stage that one or other of the parties [TRANSLATlON] "may" refer the grievance to an arbitrator, whose decision is final and binding. However, subject to the duty of fair representation imposed on the union by s. 136.1, the parties remain free to present or not present a grievance in each particular case. If one or other of them does in fact present a grievance, the agreement expressly provides that they may agree to hold it pending or to settle it. Finally, I do not see what in principle can prevent a party from withdrawing or discontinuing a grievance. By paragraph 4 of its order, the Board is interfering in the grievance procedure, depriving the parties of the relative freedom left to them under the collective agreement, and pro tanto unlawfully varying that agreement.

In oral argument Mr. Scott, one of the Board's counsel, indicated that he was quite aware of the

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singular nature of the jurisdiction claimed by the Board in the case at bar: in answer to questions put to him by the lamented Laskin C.J. in this regard, he replied that the Board was not claiming a general power to refer to arbitration, and that it had not directed the parties to file a new grievance, but to proceed with a grievance already filed, which could be explained and justified in view of the special circumstances outlined by the Board in its reasons.

In my view, and I say so with respect, Mr. Scott was invoking a difference of degree but not of kind, and the Board still exercised a power which was not conferred on it by the Act. This power resembles that exercised by the Board in Teamsters Union, Local 938 v. Massicotte, 1982 CanLII 18 (SCC), [1982] 1 S.C.R. 710, by authorizing an employee to proceed directly to arbitration at his union's expense, if the latter did not represent him fairly as required by s. 136.1. The Board was then acting under the powers conferred on it by s. 189 of the Code, in particular para. (a) and the concluding provisions:

189. Where, under section 188, the Board determines that a party to a complaint has failed to comply with subsection 124(4) or section 136.1, 148, 161.1, 184, 185 or 186, the Board may, by order, require the party to comply with that subsection or section and may

(a) in respect of a failure to comply with section 136.l, require a trade union to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee's behalf or ought to have assisted the employee to take and carry on;

and, for the purpose of ensuring the fulfilment of the objectives 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

[page 435]

of such failure to comply that is adverse to the fulfilment of those objectives.

Though they are not unlimited, these powers are much wider than those the Board has regarding unlawful strikes, and expressly authorize it to itself define the proper remedies: cf. C.L.R.B. v. Halifax Longshoremen's Association, 1983 CanLII 133 (SCC), [1983] 1 S.C.R. 245 and National Bank of Canada v. Retail Clerks' International Union, 1984 CanLII 2 (SCC), [1984] 1 S.C.R. 269. It is possible—this does not have to be decided by the Court—that in the case of an unfair practice the Board could make a decision such as that contained in paragraph 4 of its order: but no unfair practice is involved here. The fundamental error committed by the Board in the case at bar, which appears in the above-cited passages of its submission, consisted in assuming that, under s. 121 or some other provision, it had an identical power over unlawful strikes, unfair practices and technological change. This is to re-write the Code, rendering unnecessary a large number of provisions and adding to the powers conferred by it on the Board.

Second proposition

In its factum the Board placed ss. 118(p), 121, 182 and 183.1 of the Code under the heading [TRANSLATION] "Sources of the C.L.R.B.'s general powers". It therefore does not dispute that these provisions confer jurisdiction: but in its submission, the idea of a jurisdictional error which is a basis for review by the Federal Court of Appeal is narrower than I indicated at the start of these reasons, and limited to error concerning the initial jurisdiction of the body initiating a hearing.

In support of the second proposition, the Board in its submission referred to the warning given to the courts by Dickson J. in New Brunswick Liquor Corporation (supra), at p. 233, against too quickly classifying an error as a jurisdictional one:

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore

[page 436]

subject to broader curial review, that which may be doubtfully so.

The Board cited to the same effect Laskin C.J. in Massicotte (supra). After citing extracts from New Brunswick Liquor Corporation (supra) and Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, Laskin C.J. wrote at p. 724:

What this judgment and that in Nipawin clearly convey is that mere doubt as to correctness of a labour board interpretation of its statutory power is no ground for finding jurisdictional error, especially when the labour board is exercising powers confided to it in wide terms to resolve competing contentions. In so far as the Anisminic and Metropolitan Life Insurance cases deal with the so-called "wrong question" test of jurisdiction, they have no relevance here. It is impossible to say that the Canada Labour Relations Board asked itself the wrong question in any sense of departing from the inquiry in which it was engaged. It addressed itself to the issue raised by the complaint and exercised powers in relation thereto which it clearly had. At bottom, the objection is to the consequential results of that exercise, but this is a long way from any jurisdictional issue.

In Massicotte (supra) too Laskin C.J. at p. 719, speaking with reference to Nipawin (supra), wrote the following passage also relied upon by Counsel for the Board:

Essentially, this Court has admonished that there must be no failure of natural justice (and there was none here) and that the Board should address itself to an issue arising under the legislation which it is charged to administer. If it has done this (as the Federal Court of Appeal held and, in my opinion, rightly so) there can be no jurisdictional infirmity when the Board is protected in its determinations by a privative clause. It may be wrong in law in interpreting the range of powers confided to it but its decisions are nonetheless immunized from judicial review.

Counsel for the Board went on to conclude in its submission:

[TRANSLATION] Here the error of law, if any, was in the interpretation which the Board gave to certain provisions of the Canada Labour Code, in particular ss. 121, 182 and 183.l, which we cited above. This appears to be

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the type of error as to the definition of the extent of its powers referred to by Laskin C.J. in Massicotte, which is not a basis for judicial review under s. 122 C.L.C.

In the case at bar no one questions that the Board had the necessary jurisdiction at the outset to initiate the hearing which it held and to resolve the question put to it by the CBC. Equally, no one is suggesting that the Board infringed the rules of natural justice. It accordingly follows, in the submission of the Board, that the Federal Court of Appeal should not have intervened, as the errors which the Board may have made on any other matter, even on the extent of its own powers, are beyond the scope of judicial review.

In my opinion, the extracts from judgments of this Court cited by the Board in support of its second proposition do not have the reach suggested for them, and this second proposition is without foundation and must be dismissed.

It should be said, first, that the warning given the courts by this Court against over-hasty classification of a question of jurisdiction contains an important qualification: as Dickson J., as he then was, observed, the courts should not be alert to brand as jurisdictional "that which may be doubtfully so". I hope to be able to show that in the case at bar there is no doubt as to such a classification.

It should further be mentioned that an error made by an administrative tribunal on a provision conferring jurisdiction will usually, though not necessarily, involve an excess of jurisdiction or a refusal to exercise it. For example, an error made in this regard in an obiter dictum, which does not have the effect of misleading the administrative tribunal which commits it into exercising a power which it is denied by law, or failing to exercise a power imposed on it by law, would not be a jurisdictional error forming a basis for judicial review. This and other examples perhaps explain, be it said with the utmost respect, the otherwise Delphic dicta written by Laskin C.J. on this point in Massicotte (supra). I call them dicta since, in Massicotte, Laskin C.J. held that the Board

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... addressed itself to the issue raised by the complaint and exercised powers in relation thereto which it clearly had.

(Emphasis added.)

It is also conceivable that an administrative tribunal may exceed its jurisdiction without error, if for example it correctly construe the provisions circumscribing its jurisdiction, but deliberately decides to ignore them. I hasten to add that is not the case here.

In my opinion it cannot be said that the only jurisdictional error is one affecting the initial jurisdiction, jurisdiction ratione materiae, or attributive jurisdiction of an administrative tribunal initiating a hearing. Further, I do not think that anything was said or decided to this effect in New Brunswick Liquor Corporation (supra), where the provision at issue did not confer jurisdiction but, it was wrongly argued, concerned a prerequisite to the exercise of jurisdiction.

It seems to me that if jurisdictional error includes error as to the initial jurisdiction of an administrative tribunal initiating a hearing and its power to resolve by a declaration the question submitted to it, a fortiori it covers provisions which confer on it the power to add to its final decision orders arising out of the hearing and intended to give effect to its declarations by injunctions and other means of redress such as those in paras. (a) to (d) of s. 182. I do not see how it is logical to limit the possibility that an administrative tribunal may make a jurisdictional error to the initial stage, if the tribunal could err and exceed its jurisdiction with impunity at the stage of the conclusion which constitutes the outcome of its hearing and is its ultimate purpose.

The same is generally true, in my view, for errors relating to the executory, if not declaratory, powers which the Board exercises during a hearing, like that of questioning witnesses, requiring the production of documents, entering an employer's premises and so on, conferred on it by s. 118 of

[page 439]

the Code. Wide as these powers may be, they do not include, for example, giving the Board the right to punish for contempt. This power continues to belong to the Federal Court, as provided in s. 123 regarding registration of the Board's orders or decisions, exclusive of the reasons therefor, in the Federal Court. That section expressly refers to s. 28 of the Federal Court Act, and maintains it in effect. Section 123 therefore assumes by implication that a jurisdictional error may be committed at any stage of a hearing held by the Board.

Additionally, as I have already indicated, s. 28(1)(a) of the Federal Court Act does not apply to the error as such, but quite apart from any error, to the excess of jurisdiction or refusal to exercise it, that is, the exercise by an administrative tribunal of a power denied to it by the Act or the refusal to exercise a power imposed on it by the Act. Section 28(1)(a) does not distinguish between types of excess of power, the stages of the hearing at which they occur and the circumstances causing them. It applies to any excess of power. There is therefore no reason to make a distinction where s. 28(1)(a) makes none, between on the one hand excess of jurisdiction ratione materiae committed at the beginning of a hearing, whether or not resulting from an error, and on the other, an error made during the hearing or in the conclusion of a hearing and the corrective orders attached to it, despite the fact that the administrative tribunal has jurisdiction ratione materiae.

The rules I have just stated appear to be supported by decisions of this Court. Thus in the recent case of National Bank of Canada (supra), the error made by the Board and reviewed by this Court concerned a provision conferring jurisdiction, not initially but at the corrective stage, namely the concluding provisions of s. 189 of the Code. It was not disputed in that case that the Board had jurisdiction to hear and decide the complaint of unfair practices before it, but it had erred on the extent of the powers conferred on it by the Code to correct the practice: in ordering the Bank to create a trust fund to promote the aims of the Code, and directing it to write all employees a

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letter which it had dictated, the Board had exercised a power not conferred on it by the Code.

To summarize: the provisions which the Board had to interpret in the case at bar confer jurisdiction, since they concern the orders which the Board is empowered to attach to a declaration of an unlawful strike. The question is whether the Board has the power to attach to such a declaration an order referring a matter to arbitration. I consider, therefore, that it is not doubtful but manifest that the interpretation of these provisions raises a question of jurisdiction about which the Board cannot err without committing an excess of jurisdiction. For the foregoing reasons, in my opinion, the Board erred in interpreting these provisions and exercised a power which is not within those conferred upon it.

Third proposition

In its submission the Board argued that the decision made by it in paragraph 4 of its order, and set aside by the Federal Court of Appeal, not only was not unreasonable or wrongful, but on the contrary was reasonable in view of all the circumstances mentioned by the Board in its reasons.

I am quite ready to accept this proposition, at least for the purposes of discussion, but it is not the point. The point is whether the Board does have the power to make such a decision. If it does not, it must be set aside however reasonable or desirable it may be or may appear to be.

The Board further argued that this decision is not based on an interpretation of its powers which is so seriously tainted by error that it can be regarded as absolutely unreasonable.

I am willing to accept this further proposition, but in my opinion it is not relevant.

It can be seen that, in the case at bar, though the Federal Court of Appeal applied the rule of a patently unreasonable error to the part of the order made by the Board which fell within its authority, namely paragraph 3, it did not even

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mention this rule in connection with paragraph 4, which resulted from a jurisdictional error.

In my view, the Federal Court of Appeal was clearly right to make this distinction, and the Board is wrong in proposing to ignore it. Unquestionably, as has already been noted, it is often difficult to determine what constitutes a question of jurisdiction, and administrative tribunals like the Board must generally be given the benefit of any doubt. Once the classification has been established, however, it does not matter whether an error as to such a question is doubtful, excusable or not unreasonable, or on the contrary is excessive, blatant or patently unreasonable. What makes this kind of error fatal, whether serious or slight, is its jurisdictional nature; and what leads to excluding the rule of the patently unreasonable error is the duty imposed on the Federal Court of Appeal to exercise the jurisdiction conferred on it by s. 28(1)(a) of the Federal Court Act.

When the Federal Court of Appeal, and in general, courts with a duty to exercise a superintending and reforming power over administrative tribunals, find that an interpretation given by the latter to an enactment is not patently unreasonable, they are finding that this interpretation is defensible: however, they are not deciding whether the interpretation is correct or incorrect, and are not in general expressing any opinion on the point. This is exactly the approach taken by the Federal Court of Appeal in the case at bar, when it writes about paragraph 3 of the Board's order that "even if the Board was mistaken on this point, it did not on that account cease to have jurisdiction over the matter".

Once a question is classified as one of jurisdiction, and has been the subject of a decision by an administrative tribunal, the superior court exercising the superintending and reforming power over that tribunal cannot, without itself refusing to exercise its own jurisdiction, refrain from ruling on the correctness of that decision, or rule on it by means of an approximate criterion.

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This is why the superior courts which exercise the power of judicial review do not and may not use the rule of the patently unreasonable error once they have classified an error as jurisdictional.

Thus, in Blanco v. Rental Commission, 1980 CanLII 230 (SCC), [1980] 2 S.C.R. 827, the error made by the administrator and the Rental Commission in interpreting the provisions circumscribing their powers was in no way patently unreasonable. The case concerned an application to cancel a lease and evict a tenant. Section 25 of the Act to Promote Conciliation between Lessees and Property-Owners, 1950-51 (Que.), c. 20 as amended, listed the reasons for which the administrator or the Commission could order a lease cancelled and allow the tenant to be evicted, and the owner invoked the reasons mentioned in s. 25(a)—being more than three weeks in arrears in the payment of rent, unless the rent is paid before the hearing—and s. 25(b)—behaviour by the tenant on the leased premises likely in the judgment of the administrator to constitute a serious source of annoyance to the owners. It was established that the tenant had paid all the arrears of rent before the hearing, and the owner abandoned this ground. However, the administrator allowed evidence to be presented of the way in which the tenant had paid her rent, namely by twelve N.S.F. cheques in a twenty-four month period. The administrator, and the Commission after him, found that the tenant's frequent delays in paying her rent constituted a serious source of annoyance to the lessor, and ordered cancellation of the lease and eviction. This Court held that the administrator and the Commission had erred in treating the frequent delays in payment of rent as a serious source of annoyance to the owner, because s. 25(a), the only provision in the statute regarding delays in payment of rent, covered this question completely, and of necessity s. 25(b) applied to something else. The Court did not refer to the patently unreasonable error rule. Though not unreasonable, the error made by the administrator and the Commission was nevertheless a basis for judicial review, since it had the effect of conferring on those who had committed it a power of appreciation and a discretionary power in a specific case for which the Act expressly provided

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that they should not have such powers, the case of arrears of over three months' rent paid before the hearing.

Similarly, in National Bank of Canada (supra), when this Court invalidated the order to the Bank by the Board to create a trust fund and to write the letter it had dictated, it did not mention the patently unreasonable error rule. It might be thought that the jurisdictional error in the strict sense committed by the Board in that case was also patently unreasonable, but this was not the reasoning applied by the Court. Its reasoning was the ultra vires nature of the order given by the Board.

Conversely, when the Court applies the patently unreasonable interpretation rule it is always with respect to an error which an administrative tribunal may have made in deciding a question considered as falling within the limits of its jurisdiction: see, for example, Nipawin (supra); New Brunswick Liquor Corporation (supra); Alberta Union of Provincial Employees v. Board of Governors of Olds College, 1982 CanLII 186 (SCC), [1982] 1 S.C.R. 923; St. Luc Hospital v. Lafrance, 1982 CanLII 187 (SCC), [1982] 1 S.C.R. 974; Bibeault v. McCaffrey, 1984 CanLII 133 (SCC), [1984] 1 S.C.R. 176. In particular, see National Bank of Canada (supra): like the case at bar, that case had two aspects—the first related to a question within the Board's jurisdiction, namely whether the merger of two bank branches constituted a sale within the meaning of s. 144 of the Code; and the second, as indicated above, a jurisdictional question regarding the Board's power of redress in the case of an unfair practice; like the Federal Court of Appeal in the case at bar, this Court used the patently unreasonable interpretation rule on the first aspect but not the second.

Accordingly, it does not matter whether or not the jurisdictional error made by the Board is patently unreasonable.

Furthermore, I do not see why different rules would be applied in this regard depending on

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whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91 and 92 of the Constitution Act, 1867 an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians.

I would dismiss the third proposition made by the Board.

4. Conclusion

The factum of the CBC in the first appeal indicates that the parties did in fact submit to arbitration a grievance regarding the individually optional or compulsory nature of overtime. After leave to appeal was given by this Court, but before the appeal was heard, an arbitrator, Mr. André Sylvestre, in an award dated November 19, 1981, dismissed the grievance and ruled in favour of the CBC, finding like Beauregard J. that overtime was individually compulsory and that the arbitrator André Montpetit had erred in his 1978 award. The Court was provided with copies of Mr. Sylvestre's award at the hearing.

However, it is not clear that the parties referred this grievance to arbitration in order to comply with paragraph 4 of the Board's order, and there is no indication whether the arbitration had or will have the effects expected by the Board.

Moreover, no one argued that the appeal of the Board had become moot as a result of this award.

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I therefore consider that the Court should rule on the Board's appeal, which I would dismiss with costs.

V—General conclusions

The appeal of the Syndicat should be dismissed with costs in favour of the Board and the CBC.

The appeal of the Board should be dismissed with costs in favour of the Syndicat.

Appeals dismissed with costs.

Solicitors for the Canada Labour Relations Board: Grondin, LeBel, Poudrier, Isabel, Morin & Gagnon, Québec.

Solicitors for the Syndicat des employés de production du Québec et de l'Acadie: Robert, Dansereau, Barre, Marchessault & Lauzon, Montréal.

Solicitors for the Canadian Broadcasting Corporation: Heenan, Blaikie, Jolin, Potvin, Trépanier, Cobbett, Montréal.

• The Chief Justice took no part in the judgment.