Telecommunication Workers Union v. B.C. Telephone, [1985] 1 S.C.R. 840

Parties and Counsel

Telecommunication Workers Union, Timothy Clement, Dale Solaczek Appellants;

and

British Columbia Telephone Company, Canadian Telephone & Supplies Ltd. Respondents;

and

The Attorney General of Canada Intervener.

File No.: 17469.

1985: May 1; 1985: June 13.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for british columbia

Headnote

Labour law ‑‑ Lay‑offs ‑‑ Notice of lay‑off required by Labour Code ‑‑ Regulations creating exceptions to Code requirements ‑‑ Whether or not regulations breaching spirit of the Act and ultra vires ‑‑ Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 60(1), (4), 60.2, as amended ‑‑ Canada Labour Standards Regulations, C.R.C., c. 986, s. 30(c)(i), (ii).

Respondents notified appellant union of their intention to lay off a number of employees and subsequently gave 1800 employees six weeks notice of lay‑off as required by the collective agreement. Six days before the lay‑off, each employee was notified that he would be recalled on a fixed date within six months of the lay‑off. Respondents did not give sixteen weeks notice, as required by s. 60 of the Canada Labour Code, because the lay‑off was deemed not to be a termination of employment pursuant to the Regulations. Appellants sought an injunction preventing the lay‑off because of non‑compliance with s. 60 and a declaration that s. 30(c)(i)and (ii) of the Regulation creating the exemption was ultra vires the powers of the Governor in Council. The Court of Appeal reversed the trial judge's finding and declaration that s. 30(c)(i) of the Regulations was ultra vires and held all s. 30(c) intra vires.

Held: The appeal should be dismissed.

Section 30(c) of the Canada Labour Standards Regulations was validly enacted under s. 60.2 (d) of the Canada Labour Code. The Governor in Council did not act in breach of the spirit of the Code for the Regulation was made in accordance with the precise terms of the statute. Section 60(4) of the Code provided for exceptions to be made by regulation in the case of lay‑offs and s. 60.2 empowered the Governor in Council to prescribe the circumstances in which such exceptions would operate. Then, too, while the Regulations could have the effect of depriving an employee of the benefit of previous notice as provided for by s. 60 of the Code, the very fact of a group lay‑off for financial reasons would alert everyone concerned of the possible need of assisting the affected employees in finding work. The combined effect of s. 60 of the Code and s. 30(c) of the Regulations, however, was that an employer would violate the Code if he failed to recall the employees at the time set out in the lay‑off notice.

The fact that the circumstances defined in the regulations could be made through the action of an employer did not amount to a delegation of the Governor in Council's authority.

Statutes and Regulations Cited

Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 60(1), (2), (4), 60.2(d).

Canada Labour Standards Regulations, C.R.C., c. 986, ss. 30(a), (b), (c)(i), (ii).

APPEAL from a judgment of the British Columbia Court of Appeal (1982), 1982 CanLII 642 (BC CA), 5 D.L.R. (4th) 15, 40 B.C.L.R. 379, [1983] 2 W.W.R. 274, 84 CLLC ¶ 14,031 allowing an appeal from a judgment of Spencer J. Appeal dismissed.

Morely D. Shortt, Q.C., and Theodore Arsenault, for the appellants.

Jack Giles, Q.C., for the respondents.

W. B. Scarth, Q.C., and Susan D. Clark, for the intervener.

Reasons for Judgment

The judgment of the Court was delivered by

1. La Forest J.‑‑The issue in this appeal is whether s. 30(c) of the Canada Labour Standards Regulations, C.R.C., c. 986, was validly enacted under s. 60.2(d) of the Canada Labour Code, R.S.C., 1970, c. L‑1, as amended.

2. The proceedings began when the appellants filed a petition in the Supreme Court of British Columbia seeking to enjoin the respondents from laying off a large group of employees without giving sixteen weeks' notice of their intention to do so to the federal Minister of Labour pursuant to s. 60 of the Canada Labour Code. The appellants also sought a declaration that paras. 30(c)(i) and (ii) of the Regulations was ultra vires the powers of the Governor in Council.

3. Spencer J., who heard the matter, found s. 30(c)(ii) ultra vires and issued a declaration accordingly. An appeal to the Court of Appeal of British Columbia was allowed, the majority, MacDonald and MacFarlane JJ.A., holding that all of s. 30(c) was intra vires the powers of the Governor in Council. Hutcheon J.A. disssented. Leave to appeal was then granted to this Court.

4. The issue can perhaps best be understood by first referring to several provisions of Division V.2 of the Canada Labour Code which deals with group termination of employment. Subsection 60(1) provides that when an employer terminates the employment of a group of fifty or more employees within a particular industrial establishment, he is required to give notice to the federal Minister of Labour of his intention to do so within a specified period depending on the number of employees affected. In the present case the period was sixteen weeks, there being over three hundred employees affected. The employer is also required to give a copy of the notice forthwith to the Canada Employment and Immigration Commission and to the employees' trade union. The obvious purpose of the scheme is to assist the employees to find other work by informing the Minister, the Canada Employment Commission and their union by giving them notice of the termination of employment; see s. 60.1 of the Code. The provisions of the Code so far as necessary to an understanding of the issue are as follows:

5. (1) Any employer who terminates, either simultaneously or within any period not exceeding four weeks, the employment of a group of fifty or more employees employed by him within a particular industrial establishment... shall... give notice to the Minister, in writing, of his intention to do so at least

(c) sixteen weeks before the date mentioned in paragraph (a) where the group exceeds three hundred.

(2) A copy of any notice given to the Minister under subsection (1) shall be given forthwith by the employer to the Canada Employment and Immigration Commission and to any trade union certified to represent any employee in the group of employees whose employment is to be terminated or recognized by the employer as bargaining agent for any such employee ...

(4) Except where otherwise prescribed by regulation, an employer shall, for the purpose of this Division, be deemed to have terminated the employment of an employee where he lays off that employee.

60.2 The Governor in Council may make regulations for carrying out the purposes and provisions of this Division and, without restricting the generality of the foregoing, may make regulations

(d) prescribing circumstances in which a lay‑off of an employee shall not be deemed to be a termination of his employment by his employer.

5. Since, by virtue of s. 60(4), an employee who is laid off is deemed to have had his employment terminated, it follows that the notice must be given when employees are laid off, but the provision specifies that exceptions may be made to this by regulation. Paragraph 60.2(d) then provides that the Governor in Council may prescribe circumstances under which a lay‑off shall not be deemed a termination of employment. Pursuant to this power the Governor in Council established the following regulation:

6. For the purposes of Divisions V.2, V.3 and V.4 of the Act, a lay‑off of an employee shall be deemed not to be a termination of his employment by his employer where

(a) the lay‑off is a result of a strike or lockout;

(b) the term of the lay‑off is three months or less;

(c) the term of the lay‑off is more than three months and the employer

(i) notifies the employee at or before the time of the lay‑off that he will be recalled to work on a fixed date or within a fixed period neither of which shall be more than six months from the date of the lay‑off, and

(ii) recalls the employee to his employment in accordance with subparagraph (i);

6. Owing to their financial situation, the respondents, on June 21, 1982, notified the appellant union of their intention to lay off a number of employees. Subsequently, the appellant employees, along with some 1800 others, were given six weeks notice, as required by the applicable collective agreement, that they would be laid off effective August 4, 1982. Six days before the lay‑off, on July 29, each employee was notified that he or she would be recalled to work on February 1, 1983, i.e., under six months from the date of the lay‑off. The respondents did not give the sixteen weeks' notice provided for by s. 60(1)(c) because by virtue of s. 30(c) of the Regulations a lay‑off under these circumstances is deemed not to be a termination of employment if the employees are recalled on the date fixed by the notice.

7. The appellants' argument that s. 30(c) of the Regulations is ultra vires the powers of the Governor General is that it is inconsistent with the spirit of the legislation which contemplates a notice before termination of employment so as to provide an opportunity for the employees to find other employment. Here an employee can only know if he will not be re‑employed when that decision is taken, i.e. after he has been laid off.

8. There is no doubt that the general intention of the legislation is to give prior notice of a termination of work, and it is equally true that this may extend to lay‑offs as well as final terminations of work by virtue of s. 60(4) of the Canada Labour Code. But that very provision provides for exceptions to be made by regulations in the case of lay‑offs, and s. 60.2(d) of the Act goes on to give the Governor in Council power to prescribe the circumstances in which a lay‑off shall not be deemed to be a termination of his employment and so not subject to the requirement to give notice under s. 60 of the Code. These specific provisions can scarcely be overlooked in determining the intention of Parliament. Here the Governor in Council did precisely what the Act authorizes it to do. It prescribed the circumstances when a lay‑off is not to be deemed a termination of employment. To do precisely what the Code authorizes can hardly be said to breach its spirit.

9. The Regulations may have the effect of depriving an employee of the benefit of previous notice provided for by s. 60 of the Code, but Parliament, by the terms of that provision, clearly contemplated that a lay‑off was subject to different considerations from those applicable to a permanent termination of work in some circumstances and delegated to the Governor in Council the discretion to determine those circumstances. The very fact that there was a group lay‑off, for financial reasons, would go some way towards informing everyone concerned that the employees may have need for assistance in finding other work.

10. It is true that until the closing date set for a lay‑off the parties, other than possibly the employer, would not know whether the employees' employment would terminate, but that would be true of most, if not all, lay‑offs (for example, that described in s. 30(b) of the Regulations) unless one imports an obligation to recall an employee at the end of the period assigned in the notice of lay‑off, a proposition which, I think, cannot be supported. In substance, the combined effect of s. 60 of the Code and s. 30(c) of the Regulations is that in circumstances such as the present an employer violates the provisions of the Code if he fails to recall the employees at the time set forth in the notice of lay‑off.

11. The fact that the circumstances defined in the Regulations may be created by the action of an employer does not amount to a delegation of the Governor in Council's authority. A lay‑off must inevitably be dependent on the employer's action.

12. The jurisdictional point raised in the courts below, having been abandoned on the hearing of this appeal, I have not considered it.

13. I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Shortt and Company, Vancouver.

Solicitors for the respondents: Farris, Vaughan, Wills & Murphy, Vancouver.

Solicitor for the intervener: Department of Justice, Vancouver.