Supreme Court of Canada

Canada Labour Relations Board v. Québecair, [1993] 3 S.C.R. 724

Date: 1993-10-21

Canada Labour Relations Board Appellant

v.

Québecair-Air Québec et Al. Respondents

and

Canadian Air Line Pilots Association et Al., and CPAL-MEC Mis En Cause

and

The Attorney General of Canada Intervener

and Between

Canada Labour Relations Board Appellant

v.

Canadian Pacific Air Lines Ltd. et Al. Respondents

and

Canadian Air Line Pilots Association et Al., and CPAL-MEC Mis En Cause

and

The Attorney General of Canada Intervener

and Between

Canada Labour Relations Board Appellant

v.

Nolisair International Inc. (Nationair) Respondent

and

Canadian Air Line Pilots Association et Al., and CPAL-MEC Mis En Cause

and

The Attorney General of Canada Intervener

INDEXED AS: CANADIAN PACIFIC AIR LINES LTD. V. CANADIAN AIR LINE PILOTS ASSN.

File No.: 21429.

1993: March 2; 1993: October 21.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier and Iacobucci JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations — Canada Labour Relations Board — Jurisdiction — Board ordering employers to produce documents during investigation of union's application for amendment of certification — Whether Board's power to compel production of documents may be exercised only in context of formal hearing — Standard of review applicable to Board's order — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(a), 121.

Following various arrangements effected by the respondent airlines, the pilots' union brought an application to the Canada Labour Relations Board requesting a declaration that the respondents were now a "single employer" or, alternatively, that there had been a sale of a business. During its investigation in preparation for the hearing, the Board made an informal request to the respondents for the production of certain documents and information. When the respondents refused to comply, the Board issued an order, pursuant to ss. 118(a), (f) and 121 of the Code, to compel them to deliver the documents and information requested. The respondents then filed an application for judicial review with the Federal Court of Appeal. The court allowed the application and set aside the Board's order, holding that the Board did not have the power under ss. 118 or 121 of the Code to compel the production of documents and sworn written testimony prior to and outside a hearing before the Board.

Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, Gonthier and Iacobucci JJ.: The issue in this case goes to the jurisdiction of the Board. It follows that the standard governing judicial review of the Board's order is one of correctness.

The scope of the power granted by s. 118(a) of the Code is clear from the plain meaning of the words of that section: the Board may exercise its power to compel the production of documents only in the context of a formal hearing. The structure and nature of s. 118(a) support this conclusion. The structure of the section makes the power to compel the production of documents a part of a complete process which is limited to a formal hearing to which witnesses may be summoned and where they may give evidence on oath. The power is coercive in nature and the limits placed on its exercise by s. 118(a) must be respected. The power is also judicial in character. To extend its application to an administrative context would be an exceptional enlargement of its scope and would require clear wording to that effect. Finally, when the Board's administrative and judicial functions are considered, the confinement of the power to compel the production of documents only to the context of a formal hearing is not inconsistent with the purposes and role of the Board.

The scope of s. 118(a) cannot be enlarged by s. 118(f). Paragraph (f) is permissive in nature and does not empower the Board to compel the production of documents when a person refuses to do so. Similarly, the reference to "written evidence" in s. 118(a) does not broaden its scope. Written testimony was historically and is still in certain contexts an effective and accurate means for presenting evidence. The modernization of the phrasing of the section, including the removal of the words "before them" with regard to the compulsion of attendance of witnesses, cannot be taken as a basis for ignoring all the other aspects of the provision which indicate that it is concerned with the powers of the Board in the context of a hearing. The fact that the Board is under no general duty to hold hearings does not require that its powers be interpreted so that it need never do so.

Section 121 of the Code — a general provision which empowers the Board to make orders requiring compliance with the provisions of Part V — does not include a power to compel the production of documents outside the context of a formal hearing. The general provisions in the Code cannot be construed so as to give to the Board powers which are broader than those expressly and specially provided for elsewhere. Since the power to compel the production of documents has been specially treated in s. 118(a), s. 121 cannot be used to circumvent the special limits imposed on the power by that provision.

Per L'Heureux-Dubé J. (dissenting): The standard of review applicable to the Board's order is correctness. A functional analysis of the relevant sections of the Code discloses that Parliament did not intend to give the Board the exclusive power of making a final ruling on the point at issue. The Board's jurisdiction is concerned primarily with the application of Part V of the Code, and it has an especially important part to play in connection with the acquisition and extinction of bargaining rights and the exercise of rights to strike and lock out. To issue an order under s. 118(a), the Board does not have to decide a question central to its field of expertise. Determining the means of exercising the power conferred by that paragraph is not, strictly speaking, a question of industrial relations or labour law and is therefore not within the Board's jurisdiction stricto sensu.

The wording of s. 118(a) of the Code is ambiguous as to the way in which the power it confers on the Board is to be exercised. In view of this ambiguity, an analysis which is primarily concerned with a literal and grammatical interpretation of s. 118(a) is inappropriate. One must go beyond the wording of the provision and examine its context. Classification of the power conferred by s. 118(a) as judicial or quasi-judicial is not per se decisive as to its interpretation as it runs the risk of masking the nature of the Board's function, which must be both flexible and effective.

Seen in its context, especially its procedural context, the meaning of the amendment made when s. 118(a) was adopted — the removal of the words "before them" — leads to the conclusion that the exercise of the power to order written testimony and documents to be filed is not subject to any duty to hold a viva voce hearing. First, the procedural guarantees of the parties affected are not compromised by the absence of such a hearing. A person who is the subject of a production order may put forward his objections effectively by presenting them in writing, just as he or she may do so regarding the merits of the principal case. He or she may also make use of the internal and external procedure for reviewing decisions and orders of the Board provided for in ss. 119 and 122 of the Code to make his objection. The absence of a formal hearing in the context of s. 118(a) is not inconsistent with the rules of natural justice. Second, the Board has complete control of its procedure and the right to render its decisions on the merits without any formal hearing. It would therefore seem illogical for Parliament to impose on the Board a duty to hold a viva voce hearing, solely in order to obtain relevant information or documents that a party refuses to provide voluntarily. Such an interpretation would establish an absolute right to a viva voce hearing and deprive the Board of complete control of its procedure. In the absence of clear language excluding the principle that the Board has complete control over its own procedure, courts should not adopt an interpretation which, for all practical purposes, would have the same effect. Finally, the Board's primary purpose is not inconsistent with a power to order the filing of documents and to require witnesses to testify in writing outside viva voce hearings. On the contrary, the effect of such a power is to increase the Board's efficacy.

Cases Cited

By Gonthier J.

Applied: Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, 1984 26 (SCC), [1984] 2 S.C.R. 412; distinguished: Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 68 (SCC), [1992] 2 S.C.R. 394; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 67 (SCC), [1989] 1 S.C.R. 1722; referred to: U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048; Dayco (Canada) Ltd. v. CAW-Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230; Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 23 (SCC), [1979] 1 S.C.R. 218; Tremblay v. Séguin, [1980] C.A. 15; Re Canadian Broadcasting Corp. and Canadian Union of Public Employees, Broadcast Division (1978), 1978 3527 (ON LA), 18 L.A.C. (2d) 357.

By L'Heureux-Dubé J. (dissenting)

R. v. Amway Corp., 1989 107 (SCC), [1989] 1 S.C.R. 21; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, 1984 26 (SCC), [1984] 2 S.C.R. 412; U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048; Dayco (Canada) Ltd. v. CAW-Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230; Durham Transport Inc. v. International Brotherhood of Teamsters (1977), 21 N.R. 20; Canadian Arsenals Ltd. v. Canada Labour Relations Board, 1978 3573 (FCA), [1979] 2 F.C. 393; Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 68 (SCC), [1992] 2 S.C.R. 394; Komo Construction Inc. v. Commission des relations de travail du Québec, 1967 118 (CSC), [1968] S.C.R. 172; Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., 1988 9414 (FCA), [1988] 2 F.C. 493, leave to appeal refused, [1988] 1 S.C.R. vii; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 67 (SCC), [1989] 1 S.C.R. 1722.

Statutes and Regulations Cited

Act to amend the Canada Labour Code, S.C. 1972, c. 18.

Act to empower Commissioners for inquiring into matters connected with the public business, to take evidence on oath, S. Prov. C. 1846, 9 Vict., c. 38.

Canada Labour Code, R.S.C. 1970, c. L-1, s. 160(5) [rep. 1972, c. 18, s. 1].

Canada Labour Code, R.S.C. 1970, c. L-1 [am. 1972, c. 18, s. 1], ss. 61.5 [ad. 1977-78, c. 27, s. 21; am. 1980-81-82-83, c. 47, s. 27; am. 1984, c. 39, s. 11], 117 [am. 1977-78, c. 27, s. 39; am. 1984, c. 39, s. 25], 118 [am. 1977-78, c. 27, s. 40], 119, 121,122 [rep. & sub. 1977-78, c. 27, s. 43], 123 [idem], 124 [am. idem, s. 44; am. 1984, c. 39, s. 26], 125, 127 [am. 1977-78, c. 27, s. 46], 128 [idem, s. 47; am. 1984, c. 39, s. 27], 129, 133, 134, 137 to 140, 144, 157 [am. 1977-78, c. 27, s. 55], 175, 194 [rep. & sub. 1977-78, c. 27, s. 69].

Canada Labour Code, R.S.C., 1985, c. L-2, s. 16(a).

Canada Labour Relations Board Regulations, 1978, SOR/ 78-499, s. 19.

Canadian Charter of Rights and Freedoms, s. 11(c).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 50(2).

Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 28(1).

Inquiries Act, R.S.C. 1952, c. 154, s. 4.

Inquiries Act, R.S.C. 1970, c. I-13, s. 4.

Authors Cited

Adams, George W. Canadian Labour Law, 2nd ed.

Aurora, Ont.: Canada Law Book, 1993 (loose-leaf).

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.

Dorsey, James E. Canada Labour Relations Board: Federal Law and Practice. Toronto: Carswell, 1983.

Grand Robert de la langue française, 2^e éd. Paris: Le Robert, 1986, "audience", "procédure".

APPEAL from a judgment of the Federal Court of Appeal (1989), 1989 5186 (FCA), 95 N.R. 255, 59 D.L.R. (4th) 384, setting aside a decision of the Canada Labour Relations Board. Appeal dismissed, L'Heureux-Dubé J. dissenting.

Louis Crête and Johane Tremblay, for the appellant.

R. Luc Beaulieu and Manon Savard, as amici curiae.

Jean-Marc Aubry, Q.C., and René LeBlanc, for the intervener.

The judgment of Lamer C.J. and La Forest, Gonthier and Iacobucci JJ. was delivered by

GONTHIER J. — This case raises the issue of whether the appellant, the Canada Labour Relations Board (the "Board"), may act to compel parties, interveners or interested persons to produce documents prior to and outside of the context of a formal hearing held by the Board.

I — The Facts

On September 11, 1986, the mis en cause, the Canadian Air Line Pilots Association (the "Association"), brought an application to the Board pursuant to ss. 119, 133 and 144 of the Canada Labour Code, R.S.C. 1970, c. L-1. The Association sought an answer to two questions: whether the arrangements effected by the respondent airlines had resulted in the respondents being properly considered as a "single employer" for the purposes of s. 133 of the Code, or alternatively whether those arrangements had effected sales, for the purposes of s. 144 of the Code. Accompanying the application were a number of supporting documents. As well, several informal requests for documents were made both by the Board itself and parties to the proceedings. The substantive matters raised in the application are not themselves in issue in this appeal. The issue in this appeal arose when the Board sought to act formally in support of a request made by its delegates for information and the production of documents.

In preparation for the hearings, the Board advised the parties that it would proceed with an investigation, and informed the respondents as to the information and documents that it expected them to provide. The respondent employers had informed the Board that in their view the Board did not have the power to enforce the request for documents which had been made, and expressed their reasons for refusing to comply with the request. The required information and documents were confirmed in a letter dated June 18, 1987 sent by Serge Quesnel, labour relations officer, and Gerard Legault, director of operational services and registrar, both of the Board, to the respondents. This was in effect an informal request for documents and information. In early July, the respondents informed the Board of their refusal to comply with the request, and on July 13 the Board issued an order stated to be pursuant to ss. 118 and 121 of the Code, and in particular, but without limiting the generality of the application of s. 118, to paras, (a) and (f) of that section, to compel the respondents to deliver the documents in question by July 31, 1987. The Board stated in the introductory paragraphs to the order that it considered the relevant information and documents to be necessary for a complete investigation and review of the matters before it, as mandated pursuant to its responsibilities under the Code. In a letter dated July 15, 1987, the Board communicated its decision to the parties, with the following explanation:

The context in which the Board is exercising its power to demand documents is at the pre-hearing stage. The Board is acting in its investigative/administrative role as a canvasser of information on the relationships between the various employer-respondents and the applicants with regard to revision of the bargaining units, sale of businesses and single employer.

Following the refusal of the respondents to comply with the order made by the Board, the matter was brought to the Federal Court of Appeal by way of application pursuant to s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.).

II — The Judgment Below

In the Federal Court of Appeal, the application for judicial review was allowed unanimously, and the order of the Board dated July 13, 1987 was set aside: (1989), 1989 5186 (FCA), 95 N.R. 255, 59 D.L.R. (4th) 384. Marceau J.A. noted that the investigations which the Board was undertaking were necessary in order to enable the Board to consider the redefinition of the Association's certificate of certification and the scope of the existing collective agreements. While the parties raised three main arguments, the appeal was disposed of on the basis of the first issue, being whether the Board had the power to compel the production of documents and sworn written testimony prior to and outside a hearing before the Board.

III — Points in Issue

The following two questions are now before this Court:

1. May the Board, for the purposes of its inquiry into the matters raised by the Association, act pursuant to s. 118(a) of the Code to require the production of documents and written testimony other than in a hearing viva voce?

2. Alternatively, did the Board act outside its jurisdiction when it founded its order on s. 121 of the Code?

IV — Relevant Legislative Provisions

The Canada Labour Code provides as follows:

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

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;

(b) to administer oaths and affirmations;

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion the Board sees fit, whether admissible in a court of law or not;

(d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;

(e) to examine documents forming or relating to the constitution or articles of association of

(i) a trade union or council of trade unions that is seeking certification, or

(ii) any trade union forming part of a council of trade unions that is seeking certification;

(f) to make such examination of records and such inquiries as it deems necessary;

(g) to require an employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring to the attention of any employees any matter relating to the proceeding;

(h) subject to such limitations as the Governor in Council in the interests of defence or security may by regulation prescribe, to enter any premises of an employer where work is being or has been done by employees and to inspect and view any work, material, machinery, appliances or articles therein and interrogate any person respecting any matter that is before the Board in the proceeding;

(i) to order, at any time before the proceeding has been finally disposed of by the Board, that

(i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a representation vote or additional representation vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and

(ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;

(j) to enter upon an employer's premises for the purpose of conducting representation votes during working hours;

(k) to authorize any person to do anything that the Board may do under paragraphs (b) to (h) or paragraph (f) and to report to the Board thereon;

(l) to adjourn or postpone the proceeding from time to time;

(m) to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;

(n) to amend or permit the amendment of any document filed in connection with the proceeding;

(o) to add a party to the proceeding at any stage of the proceeding; and

(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

(i) a person is an employer or employee,

(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

(iii) a person is a member of a trade union,

(iv) an organization or association is an employers' organization, a trade union or a council of trade unions,

(v) a group of employees is a unit appropriate for collective bargaining,

(vi) a collective agreement has been entered into,

(vii) any person or organization is a party to or bound by a collective agreement, and

(viii) a collective agreement is in operation.

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.

V — Analysis

An analysis of the power granted to the Board by s. 118(a) of the Code first calls for a consideration of its wording. As the issue goes to the jurisdiction of the Board, the standard governing the judicial review of the Board's order is one of correctness: U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, and most recently Dayco (Canada) Ltd. v. CAW-Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230. Although s. 118(a) is constituted by one long sentence with a number of elements, its meaning is clear: the Board has the power to compel a person who refuses to provide answers or information by summoning that person to attend, and thereupon require that person to testify and produce the documentary evidence. While this is the natural meaning which appears when the provision is simply read through as a whole, it is also the meaning which commends itself when the structure and nature of the provision are examined.

The authority which is granted to the Board pursuant to s. 118 relates mainly to the powers and duties of the Board in gathering evidence, and to some degree other matters like the governance of the procedure in hearings and the determination of certain questions of fact.

The power at issue is limited by the words of s. 118(a). They do not provide for a power to compel the production of documents, per se; this power does not stand alone. Rather, the section empowers the Board to require that certain persons attend and to compel them to give evidence, whether it be oral or written, and to produce documents or other things which the Board deems requisite in the circumstances. Those activities are not expressed to be in the alternative, but are outlined as part of one single process. The process is initiated by the summoning and enforced attendance of witnesses, and it is in relation to those persons — witnesses summoned — that the power of the Board to compel the production of documents is conferred. This power must of necessity be exercised with regard to specific individuals, as it is attached to the summoning and testifying of witnesses. The section also requires that those persons give their evidence on oath. The reference to persons summoned to give oral and written evidence on oath is part of the limits on the exercise of the power.

This empowering provision is distinct from all but one other provision in s. 118. Paragraphs (b), (c), (d), (e), (f), (g), (h), and (j) of that section allow the Board to consider a wide variety of sources and forms of information. There is in these provisions no expression of a power to compel or require the production of any of the evidence referred to in these paragraphs. All of the sources of information there referred to may only be examined on a voluntary basis and without the exercise of constraint. This no doubt explains the decision of the Board to ground the order not on a single provision but on paras. (a) and (f) together of s. 118. Paragraph (f) permits the Board to engage in such enquiries and examination of records as it deems necessary, but it does not empower the Board to compel the production of documents when a person refuses to do so. Paragraph (f) is in terms similar to preceding sections of the paragraph which enumerate specific evidence and documents which the Board may receive and examine. For instance, para, (d) includes a reference to "such evidence as is submitted to it". Together with the other paragraphs of s. 118, para. (f) does allow the Board to examine a wide variety of sources for the purposes of fulfilling its duties, but does not expand the scope of the power provided for in s. 118(a). The structure of the provision limits the exercise of the power of compulsion to the context of a formal hearing.

This conclusion is also supported by the nature of the provision. The power granted by s. 118(a) is coercive. While the orders of the Board are not executory in themselves, they are enforceable by filing with the Registry of the Federal Court, as judgments of that court pursuant to s. 123 of the Code, with the penalties attached thereto including that of imprisonment. The exercise of such powers is normally reserved uniquely for courts of law, and it is exceptional that they may be initiated by a body such as the Board. This is significant in two ways. First, because s. 118(a) is an exceptional provision which grants to a body a significant power, special attention must be given for this reason alone to any limits which are placed on the exercise of that power by the words of the provision granting it. The Board has no inherent jurisdiction, unlike superior courts whose powers of coercion find their origins in the inherent jurisdiction of those courts.

Second, it requires consideration of the special application of the power which the Board seeks to have affirmed. The context in which the power was purportedly exercised is an administrative one. The Board correctly envisaged its purpose as the accumulation of information bearing on the relationships between the various employer-respondents and the applicants with regard to the revision of the bargaining units, the sale of businesses and single employer. The power was exercised in support of an initial request made informally. There is no reference in the provision to the exercise of the powers to compel the production of documents in the context of the administrative role of the Board. On the contrary, each and every reference to the manner of exercise of the power contained in the provision relates to its exercise in a non administrative context in contrast to the other information gathering provisions of s. 118. As noted above, persons subject to the power are referred to as "witnesses", the process by which their presence is to be secured is by means of summons, and the evidence is to be given on oath.

Indeed, the nature of the acts authorized by para. (a) is judicial. Reference may be had to the case of Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 23 (SCC), [1979] 1 S.C.R. 218, at p. 225. In that case, the commissioner who had required the production of documents had the authority to act with the powers of a superior court in term. In rejecting the argument that cases involving other actions of commissions were applicable, it was decided that the nature of the activity of the commission must be properly identified. It was held that:

… what is presently in issue is the validity of strictly judicial acts: the compulsion of witnesses to testify and to produce documents.

In Tremblay v. Séguin, [1980] C.A. 15, the Quebec Court of Appeal considered this matter. The important connection between the aspect of enforcement by constraint, the nature of the power and the proper interpretation of that power was there recognized. As was stated in the reasons of L'Heureux-Dubé J.A. (as she then was), at p. 16:

[TRANSLATION] After considering the relevant provisions of the Police Act and the Public Inquiry Commissions Act from which the appellants derive their powers, the trial judge said the following:

In the circumstances, did the respondent commissioners and the mis en cause Commission have the power to summon the applicants to appear and to testify?

The power of constraint is a significant limitation on the principles of individual liberty. Legislation conferring that power must be construed with the greatest caution and the prescribed procedure must be regarded as a matter of strict law… .

I agree.

The characterization of the power in question cannot proceed without reference to the exorbitant nature of the penalties which are available to secure compliance. In light of the judicial nature of the power, an extension of the power so that it would be exercisable in an administrative context would be an exceptional enlargement of its application. The power cannot be envisaged to be so broad in the absence of clear wording to that effect.

It has been pointed out that there is no provision which requires the Board to hold formal hearings, and yet the result of the interpretation adopted by the Court of Appeal is that the power of constraint which it has pursuant to s. 118(a) can only be exercised once the Board has chosen to hold a hearing. This is not incompatible. The fact that the Board is under no general duty to hold hearings does not require that its powers be interpreted so that it need never do so.

While the Board has the power under s. 118(k) to delegate certain of its functions, the power of the Board to compel the production of documents is not included within this group of functions. Instead, it is excluded from being the subject of delegation, together with the other coercive powers which the Board has, namely, to order a representation vote pursuant to s. 118(i). This highlights the distinct and restricted nature of this power.

It is argued that the reference to written evidence in s. 118(a) broadens its scope. In the Court of Appeal, Marceau J.A. approaches this question in terms of the history of the provision. The reference to written testimony is reflective of the fact that prior to the development of effective means for recording testimony, the use of written testimony was an effective and accurate way for the presentation of evidence. While there has been some reformulation of the words of the provision, which Marceau J.A. records in more detail, it remains reflective of the wording of similar provisions which date from the last century. It should also be noted that, in addition to exceptional circumstances such as where evidence is to be given by a person both deaf and mute, or when the information in question is in the nature of graphs or charts, the giving of written testimony may nonetheless simply be an efficient mode for the transmission of information and is commonly used, particularly in areas of expert testimony. The inclusion within the provision of a reference to written testimony does not therefore mandate the conclusion that the power to compel the production of documents may be exercised other than in a formal hearing. While there have been a number of changes to the wording of the provision over the years, including the removal from s. 118 of the words "before them" with regard to the compulsion of attendance of witnesses, the modernization of the phrasing cannot be taken as a basis for ignoring all the other aspects of the provision which indicate that it is indeed concerned with the powers of the Board in the context of a hearing. Such a significant change to the nature of the powers under that section would require clear and express wording.

It is noted that a similar conclusion regarding the scope of s. 118(a) was reached by George W. Adams sitting as arbitrator in Re Canadian Broadcasting Corp. and Canadian Union of Public Employees, Broadcast Division (1978), 1978 3527 (ON LA), 18 L.A.C. (2d) 357, at p. 362:

…the phrase "to produce documents and things" is referable to the Board's powers over witnesses it has summoned to appear before it… Had Parliament intended to provide the Board with a power "to order" the production of documents similar to the powers of our civil Courts, the section in question [i.e. relating to the giving of oral or written testimony, etc.] would have specifically provided for this power and, most likely, would have provided a correlative procedure for pre-hearing motions to review such an important power.

See also, Canadian Labour Law (2nd ed. 1993), at pp. 5-1 ff.

It was argued that since the wording of the enabling legislation does not precisely delineate the powers of the Board (a premise with which I disagree), it would be not unreasonable in light of the words of the enabling statute, and indeed useful, if a general power to compel the production of documents were to be recognized. It was also argued that the recognition of such a power is necessary and indispensable in order that the other powers granted may be exercised effectively.

In the Court of Appeal, Marceau J. A. considered the consistency of the various arguments raised (at p. 265 N.R.):

It was suggested that the restrictive character of the provision [118(a)] should not prevail. Counsel argued, first, that the drafters of the provision clearly did not intend to give the words used the exclusive meaning they might ordinarily have, as they spoke of "written evidence" and evidence is not given in writing at a hearing. Then, having by this means minimized the importance of the words used, counsel maintained that a restrictive interpretation would conflict with the context, as it would be inconsistent with the function assigned to the Board and the way in which it must fulfil that function. I do not share these views.

While these comments must be understood in the context of the conclusion of Marceau J.A., with which I am in agreement, that the scope of the provision is clear on its face, they point to two matters which should be noted here. It is a fundamental rule of interpretation that the meaning of general provisions in the Code cannot be developed in such a way so as to give to the Board powers which are broader than those expressly and specially provided for elsewhere. In Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, 1984 26 (SCC), [1984] 2 S.C.R. 412, at p. 432, Beetz J. referred to the reasons for this principle of interpretation as twofold: first, the general may not be interpreted so as to render unnecessary the other provisions setting forth the power of the Board, and second, the limitations inherent in the specific provisions which detail the powers of the Board must be abided by if the intent of the legislature is to be respected. One of the issues in that case was the proper relationship between a broader, general provision, s. 121 of the Code, and the grants of powers made specifically elsewhere in the Code. Beetz J. wrote (at pp. 432-33):

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

While I shall refer to these words of Beetz J. below in connection with the arguments raised regarding s. 121 in this case, it is clear that the mere presence of words capable of bearing a broad meaning must not provide a foundation for the disregard of the restrictive provisions which specially delineate the power at issue.

Nor can the argument that the more general provisions justify a broader interpretation of the power to compel the production of documents be supported in light of a careful review of the purposes and role of the Board. It was submitted that the administrative aspect of the role of the Board required that the powers of the Board be viewed in a generous fashion. This argument cannot succeed here, for two reasons. First, the Board does not only have an administrative function to perform. The Board is required to act in the manner of a court of law in assessing legal arguments in relation to complex factual circumstances. Second, and as a result, the procedural safeguards which normally accompany a process having a judicial character cannot be viewed as alien in relation to the activities of the Board. At the most general level, the limitations which are imposed upon the Board's exercise of its power to compel the production of documents are consistent with the principle of audi alteram partem. I am in agreement with Marceau J.A. in that (at p. 267 N.R.):

This is not a matter of limiting the scope of the Board's investigations, simply of requiring that to secure the production of documents and testimony of witnesses it should only use the measures at its disposal to overcome the reticence of an individual in a manner which allows that individual to adequately present the reasons for his objections.

This is not to say that there is no other way in which fairness to a witness who is compelled to produce evidence may be achieved. But it does demonstrate that these limits are consistent with the functioning of the Board, when the purposes of the Board are seen as a whole.

While it was argued that such a situation would be inconsistent with the efficient and normal functioning of the Board, there is no evidentiary basis for a conclusion that recognizing the power to compel the production of documents only in the context of a formal hearing would amount to anything more than an inconvenience. The Board is not prevented from receiving documentary evidence which persons choose to submit, as it is only the power of compulsion itself which is subject to limitations. Having regard to the fact that the functions of the Board include not only administrative but also judicial and quasi-judicial functions, the importance of the efficient operation of the Board must be balanced with the considerations of procedural fairness which are manifest in the structure of the enabling legislation itself.

This Court has had occasion to consider the question of the proper way to approach the interpretation of the provisions which empower certain bodies to undertake certain kinds of activities. In Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 68 (SCC), [1992] 2 S.C.R. 394, this Court considered whether a statutory grant of authority in ss. 8(1), 8(2) and 8(3) of the Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp.), provided a power to punish for contempt ex facie curiae. Those sections were held to provide for such a power on the basis of the plain meaning of the words as well as the breadth of the provisions seen in light of one another and established principles of interpretation. The jurisdiction of the Tribunal was grounded in s. 8(1) of the Act, and its power to punish for contempt ex facie curiae was specified in s. 8(2). That section reads as follows:

8… .

(2) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

Having regard to the whole statutory scheme, it was held at pp. 411-12 that:

Section 8(2) confirms and consolidates the jurisdiction of the Tribunal. In the context of s. 8(2), the words "enforcement of its orders" coupled with the phrase "necessary or proper for the due exercise of its jurisdiction" cannot be read otherwise than as a grant to the Tribunal of the powers of a superior court of record with respect to the enforcement of its orders, which includes the power over contempt for breaches of its orders.

The broad wording of s. 8(2) relates directly to the scope and nature of the powers of the Tribunal itself, and not merely to the roles, goals or purposes of the Tribunal. Section 8(2) expressly grants to the Tribunal all the powers vested in a superior court of record for the enforcement of its orders. It was found that the power in question was expressly included as a result of the plain meaning of the words of the empowering provisions.

Furthermore, unlike the present case, the character of the power granted to the Tribunal was consistent with and indeed the same as the context in which it was to be exercised; both were judicial. Moreover, s. 8(3) of the Act not only confirmed the contempt power of the Tribunal, it also introduced procedural safeguards specific to the exercise of the power. The difficulty which presented itself in that case was the common law presumption that it was within the exclusive power of the superior courts to punish contempt ex facie, and the resulting question which arose was whether this well-established jurisdiction was granted to the Tribunal by statute. It was the clear wording of the statutory grant which led this Court to conclude that the statutory provisions did indeed so operate.

The wording of the provision in the present case bears directly upon limits to the exercise of the power to compel the production of documents, and the nature of the power is not consistent with the manner in which it is sought to be exercised. While some of the same principles of statutory interpretation apply to both cases, they lead to different results.

In Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 67 (SCC), [1989] 1 S.C.R. 1722, this Court considered whether the Canadian Radio-television and Telecommunications Commission had the authority to review revenues of Bell Canada during the period when an interim rate schedule approved by the Commission was in place, and whether the Commission had the jurisdiction to make an order compelling Bell Canada to grant a refund by way of a one-time credit to its customers. In concluding that the Commission did indeed have the power to revisit the situation during this period, the nature of an interim order was considered. Despite the fact that the relevant legislation required that both interim and final orders be just and reasonable, the importance of emphasizing the distinct nature of an interim order was recognized. On the facts of that case (at pp. 1755-56):

… the interim rate increase was granted on the basis that the length of the proceedings could cause a serious deterioration in the financial condition of [Bell Canada]. Only once such an emergency situation was found to exist did the [Commission] ask itself what rate increase would be just and reasonable on the basis of the available evidence and for the purpose of preventing such a financial deterioration. The inherent differences between a decision made on an interim basis and a decision made on a final basis clearly justify the power to revisit the period during which interim rates were in force.

On the basis that the Commission did have the power to revisit the period during which the interim rates were in force for the purposes of determining whether those rates had proven to be indeed just and reasonable, it was accepted that there was a power to make a remedial order. The question which was at the centre of that case was, therefore, whether recognition ought to be given to a power of the Commission which, if unrecognized, would result in the frustration of the work of the Commission in its central role of ensuring that the rates charged to the public were just and reasonable. If interim rates could not be reviewed and appropriate revisions made once all the relevant information was available, the activity of the Commission in ensuring that fair rates were charged would, in effect, become secondary to that of assisting the regulated bodies in avoiding financial deterioration. Such an interpretation would be clearly inconsistent with the legislation's provisions, seen as a whole and individually, as well as the purpose of the legislation. It was the safeguarding of the capacity of the Commission to carry out its central purpose that required that the power to review interim rates be recognized.

The Bell Canada decision must also be distinguished from the instant case. Here, there is no conflict between the general purposes of the Board and the confinement of the exercise of the power to compel the production of documents to the circumstances of a formal hearing. First, the judicial aspect of the activities of the Board makes the requirement that it carry out its judicial functions so that all interested parties are present and able to present their positions to the Board entirely appropriate. Second, it has already been noted that there is no basis for the conclusion that the other activities of the Board are unduly impaired in such circumstances. The administrative aspect of the Board's activities does not necessitate a power to compel the production of documents. The structure of the provision which confirms the judicial character of the power in question also supports the limitation of the exercise of the power to the context of a formal hearing.

While the focus of this appeal has been on the scope of the powers conferred upon the Board pursuant to s. 118, there was an argument raised by the appellant but not supported by the Attorney General of Canada that the power to compel the production of documents outside the context of a formal hearing might be properly founded on s. 121. For the reasons which have been outlined above, this argument cannot succeed. The power to compel the production of documents has been specially treated in the Code in s. 118(a), and the scope of the power must be understood in terms of the limits provided for there. Section 121 is a general provision which empowers the Board to make orders requiring compliance with the provisions of Part V of the Code. The broad nature of the provision is such that its operation cannot be understood in the abstract. It is, instead, governed by the principles referred to above as was outlined by Beetz J. in Syndicat des employés de production du Québec et de l'Acadie, supra.

VI — Conclusions

The extent of the power granted by s. 118(a) of the Code appears from the plain meaning of the words of the provision. The Board may exercise its power to compel the production of documents only in the context of a formal hearing. This conclusion is supported also by the fact that the nature of the power is coercive, and that the limits on its exercise must be respected. The fact that the power is also judicial in character makes extension of its application to an administrative context, one which would require clear words to that effect. The structure of the provision makes the power to compel the production of documents a part of a complete process which is limited to a formal hearing to which witnesses may be summoned and where they may give evidence on oath. The scope of s. 118(a) cannot be enlarged by means of reference to s. 118(f), which is permissive in nature. Similarly, the presence of broader provisions cannot here operate to allow the special limits imposed on powers such as this to be disregarded. As there is no basis for the conclusion that such a confinement of the power would be inconsistent with the purposes of the Board, when its administrative and judicial functions are considered, the power which is conferred on the Board by s. 118(a) is a power to require witnesses to attend a proceeding before the Board and there to give oral or written testimony and produce documents deemed requisite. In these circumstances, the powers conferred on the Board by ss. 118(a) and 121 do not include a power to compel the production of documents outside the context of a formal hearing.

As the respondents declined taking any part in this appeal, whereupon an amicus curiae was appointed by the Court and costs have not been requested, no order for costs will be made.

VII — Disposition

The appeal is, therefore, dismissed.

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting)—I have had the advantage of reading my colleague Gonthier J.'s reasons and, with all due respect, I do not share his views. For reasons which follow, I consider that, when the Canada Labour Relations Board directs that written testimony and documents be filed pursuant to s. 118(a) of the Canada Labour Code, R.S.C. 1970, c. L-1 (now s. 16 of R.S.C., 1985, c. L-2), the exercise of that power is not subject to any duty to hold a viva voce hearing.

I — Facts

For a better understanding of the issues involved in this case, it is worth taking a closer look at the facts out of which the case at bar arose.

On September 11, 1986, the Canadian Air Line Pilots Association ("CALPA") filed with the Canada Labour Relations Board (the "Board") applications pursuant to ss. 119, 133 and 144 of the Code. These applications related to several airlines, including the respondent Nolisair International Inc. The applications sought to bring about a grouping of various corporate entities to which the concept of a single employer mentioned in s. 133 should be applied, or alternatively, a ruling that a series of arrangements made between these corporations had the effect of concluding business sales within the meaning of s. 144.

On December 10, 1986, the Board sent to the parties a letter summoning them to a hearing beginning on February 3, 1987. This notice also asked the parties to provide the hearing with "any document submitted as evidence which has not been previously filed with the Board". On January 6, 1987 Nolisair International Inc. submitted its answer to the applications by CALPA to the Board and requested CALPA to produce certain documents and particulars.

On January 14, 1987, to complete his inquiry, the labour relations officer responsible for the matter sent a specific request for information and the filing of documents to various employers concerned by the applications of CALPA. On January 27, 1987, in order to give them an opportunity to discuss a possible settlement, the Board told the parties that the hearings set to begin on February 3, 1987 had been postponed to a later date and asked to be informed in writing before February 27, 1987 of the result of their discussions.

On April 7, 1987, after negotiations broke down, the Board summoned the parties to a preparatory meeting to be held on April 28, 1987 to work out how subsequent hearings would be held. On April 13, 1987, prior to this preparatory meeting, the labour relations officer responsible for the matter asked counsel for the employers mentioned in the CALPA applications, to provide him, by April 23, 1987, with a number of different items of information and documents to complete his inquiry. The officer referred to information and documents requested on January 14, 1987, which had not yet been supplied. On April 22, 1987, counsel for Nolisair International Inc. sent to the Board certain information and documents requested in the letter of April 13.

On April 28, 1987, as scheduled, the Board held a preparatory meeting in the presence of all parties concerned to discuss and resolve certain procedural questions, including one relating to the filing of documents. The Vice-Chairman of the Board, Mr. Serge Brault, told the parties of the approach he intended to take and, at the same time, pointed out that the Board intended to follow its usual procedure in dealing with applications of this kind. He noted that the Board's objective would be to report to the parties concerned by mid-June.

On June 18, 1987, the Board informed the parties that it would hold a single inquiry and a single hearing on all questions raised in the CALPA applications. Though it ruled out holding hearings before the week of September 14, 1987, it informed them of its intention to complete its inquiry and file its report by July 31, 1987 at the latest. On the same date, the labour relations officer responsible for the matter sent to all employers new requests for information and documents to be submitted by July 10, 1987 at the latest. The officer also requested that the accuracy of the information sought be certified by affidavit from an authorized person.

On July 2, 7 and 8, 1987, the parties concerned by these new requests refused to comply: their main argument was that the labour relations officer and the Board lacked jurisdiction. On July 13, 1987, following this refusal, a three-member panel of the Board issued the following order to produce documents and written testimony based on ss. 118 (a) (f) and 121 of the Code:

WHEREAS the Canada Labour Relations Board has received applications pursuant to sections 119, 133 and 144 of the Canada Labour Code (Part V — Industrial Relations);

WHEREAS the Board through Serge Quesnel, Labour Relations Officer and Gérard Legault, Director of Operational Services and Registrar, requested information and documents from certain of the respondents and/or interveners and/or interested parties in letters dated June 18, 1987;

WHEREAS the respondents and/or interveners and/or interested parties have neglected or refused to provide the relevant information and documents by July 10, 1987 as requested in the letters of June 18, 1987;

WHEREAS it is requisite for the Board to obtain the information and/or documents requested for the full investigation and consideration of the matters before it, in order to permit it to discharge its responsibilities under the Code;

NOW, THEREFORE the Board, pursuant to the powers conferred on it by sections 118 and 121 of the Canada Labour Code and in particular, but without limiting the generality of section 118, by subsections (a) and (f) of that section, hereby ORDERS:

1. Canadian Pacific Airlines Ltd.

2. les Lignes aériennes A + (Nordair Métro)

3. Nordair Inc.

4. Québecair

5. Québec Aviation Ltée (Québecair Inter)

6. Conifair Inc.

7. Gestion Conifair Inc.

8. Eastern Provincial Airways Ltd.

9. Nolisair International Inc. (Nationair)

to file with the Board by July 31st, 1987, the information and documents listed under their respective names in Appendix "A" which forms an integral part of this Order… . [Emphasis in original.]

In a letter-decision dated July 15, 1987, the Board justified this order on the basis of ss. 118 and 121 of the Code as well as the context in which its inquiries were taking place.

On July 20 and 23, the employers mentioned in the order filed with the Federal Court of Appeal an application for judicial review pursuant to s. 28(1) (a) of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.).

On July 30, 1987, they also filed with the Board applications to review and stay the order pursuant to s. 119 of the Code. On August 13, 1987 CALPA requested the Board to file its order of July 13 with the Registry of the Federal Court pursuant to s. 123 of the Code, so as to ensure its compulsory execution. These two applications are still pending before the Board.

On March 22,1989, the Federal Court of Appeal allowed the applications for judicial review filed by the employers under s. 28(1) (a) of the Federal Court Act: (1989), 1989 5186 (FCA), 95 N.R. 255, 59 D.L.R. (4th) 384. Per Marceau J.A., it unanimously struck down the Board's order on the ground that the latter did not have the power to issue the order under s. 118 (a) of the Code without holding a formal hearing. Pratte J.A., with whom Desjardins J.A. concurred, gave an additional reason. In his view, the order was directed against business corporations and, according to R. v. Amway Corp., 1989 107 (SCC), [1989] 1 S.C.R. 21, such artificial persons could not be "witnesses".

II — Issue

The only issue before this Court concerns the way in which the Board may exercise its power to compel the filing of written testimony and documents. In particular, the Court must interpret s. 118 (a) of the Code in order to decide whether the Board's power to require that written testimony and documents be filed is only available as part of a viva voce hearing.

III — Analysis

The power to compel the filing of documents and written testimony is set out in s. 118 (a) of the Code, which reads as follows:

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

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;

The issue is therefore not whether the Board is vested with the power to require the filing of documents and written examinations. This power is expressly covered by the above provision. The question is rather whether this power is available only in the course of a viva voce hearing. Though the Board also referred to ss. 118 (f) and 121 in support of its order, it is the interpretation of s. 118 (a) which is central to the appeal at bar. In these circumstances, it must be determined at the outset what standard of review is applicable to the Board's order.

(A) Applicable Standard of Review

In Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, 1984 26 (SCC), [1984] 2 S.C.R. 412, Beetz J. discussed the concept of jurisdictional error in the context of the Code itself (at p. 438):

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… .

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.

On the powers of investigation conferred by s. 118, Beetz J. went on to say:

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 the Code.

Additionally, in U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, Beetz J. clarified the meaning of jurisdiction in a judicial review situation (at p. 1090):

Jurisdiction stricto sensu is defined as the power to decide. The importance of a grant of jurisdiction relates not to the tribunal's capacity or duty to decide a question but to the determining effect of its decision. As S. A. de Smith points out, the tribunal's decision on a question within its jurisdiction is binding on the parties to the dispute… . The true problem of judicial review is to discover whether the legislator intended the tribunal's decision on these matters to be binding on the parties to the dispute, subject to the right of appeal if any. [Emphasis added.]

In the view of Beetz J., in order to adequately discuss the question "Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?", a court of law (at p. 1088)

examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.

Before concluding that the standard of review applicable in this case is the correctness of the Board's interpretation, therefore, there must be a functional analysis, however brief, of what Parliament intended. As La Forest J. noted in the recent case of Dayco (Canada) Ltd. v. CAW-Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230, at p. 258:

Cases decided under the old paradigm remain relevant, but must now be examined in the light of the "pragmatic and functional approach" to judicial review since adopted by this Court; see U.E.S. Local 298 v. Bibeault, supra, at p. 1095.

A functional analysis of the relevant sections of the Code discloses that Parliament did not intend to give the Board the exclusive power of making a final ruling on the point at issue in the present case.

The Board's jurisdiction is concerned primarily with the application of Part V of the Code, and it has an especially important part to play in connection with the acquisition and extinction of bargaining rights and the exercise of rights to strike and lock out. Inter alia, the Board is empowered to decide applications for certification by bargaining agents (s. 124), determine appropriate bargaining units (s. 125), order votes to be taken to determine whether a given union is representative (s. 127), identify employees who have the right to vote (s. 128), declare votes to be void (s. 129), deny certification to a union dominated by the employer (s. 134) and revoke any certification (ss. 137 to 140). The Board is further empowered to declare associated or related federal works, undertakings or businesses operated by two or more employers to be a single employer and work, undertaking or business (s. 133), and where businesses are sold or merged, to determine units appropriate for collective bargaining and the bargaining agent for those units (s. 144). The jurisdiction conferred on it under the latter two provisions is the source of the applications concerned in the appeal at bar.

In order to carry out its mandate, wide powers of investigation and adjudication are vested in the Board. In addition to the power it has under s. 118 (a), the Board is empowered to administer oaths and affirmations (s. 118 (b)), to receive and accept evidence and information, whether admissible in a court of law or not (s. 118 (c)), make such examination of records and such inquiries as it deems necessary (s. 118 (f)), enter the premises of an employer to interrogate any person respecting any matter that is before the Board (s. 118 (h)), adjourn or postpone any proceeding (s. 118 (l)) and decide any question that may arise in connection with Part V of the Code in any proceeding begun before it (s. 118 (p)). These considerable powers are accompanied by that of reviewing, rescinding, amending, altering or varying its own orders (s. 119) and making regulations of general application respecting its own procedure (s. 117).

Several provisions are designed to ensure that Board decisions will be effective. They may be filed in the Registry of the Federal Court of Canada and such filing makes them executory as if they were judgments of that Court (s. 123). Decisions and orders of the Board are furthermore protected by a sweeping privative clause (s. 122):

122. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with paragraph 28(1) (a) of the Federal Court Act.

(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall be

(a) questioned, reviewed, prohibited or restrained, or

(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

On the other hand, the nature of the problem here in question is decisive as to the applicable standard of review. To issue the order which is the subject of this appeal, the Board did not have to decide a question central to its field of expertise, such as determining the conditions for the application of ss. 133 or 144 of the Code. The power conferred by s. 118 (a) belongs not only to the Board, but also to other administrative bodies which are distinct for the purposes of applying the Code (ss. 61.5, 157 and 175). The problem at issue here is not, strictly speaking, one of industrial relations or labour law, which falls within the exclusive jurisdiction of the Board and, accordingly, within its special field of expertise. The question, rather, is to define the means of exercising the power conferred by s. 118 (a). As the determination of this question is not within the Board's jurisdiction stricto sensu, the standard of review applicable here, and one with which my colleague Gonthier J. agrees, is whether its interpretation is correct rather than whether it is patently unreasonable.

A conclusion that the order of an administrative tribunal is subject to a strict standard of judicial review does not, however, mean that a limiting or literal interpretation necessarily governs the way in which powers conferred by its enabling Act should be read. The Code, and in particular s. 118 (a), should be interpreted in light of all the rules of statutory interpretation, among which the context plays an important part. The pragmatic and functional approach referred to above is the very opposite of a textual and formalistic approach. The analysis of s. 118 (a) by my colleague Gonthier J. begins and is primarily concerned with a literal and grammatical interpretation. I definitely cannot agree with such an interpretation, which, in my view, is not appropriate in light of the provision at issue and the ambiguity it contains, a matter which I will discuss later in my reasons. This is why it is most important to consider the context at issue here.

(B) Legislative Context and Section 118(a)

First, there is no question in my mind that the intent of Parliament was to give the Board complete control over its own procedure. Accordingly, it is not contested that neither the Code nor the Regulations adopted thereunder impose on the Board any duty to hold a viva voce hearing (see Durham Transport Inc. v. International Brotherhood of Teamsters (1977), 21 N.R. 20 (F.C.A.), and Canadian Arsenals Ltd. v. Canada Labour Relations Board, 1978 3573 (FCA), [1979] 2 F.C. 393 (C.A)). Under its regulatory authority conferred by s. 117, the Board has adopted the Canada Labour Relations Board Regulations, 1978, SOR/78-499 (since replaced by SOR/91-622). Section 19 of the Regulations stated that the Board could dispose of any application without a hearing, notwithstanding the filing of a request therefor by a party:

19. (1) Any party may request a hearing to be held by filing a request therefor in writing, stating the circumstances that the party considers warrants the holding of the hearing.

(2) The Board may hold such hearings as it deems advisable and may dispose of any application without a hearing notwithstanding the filing of a request therefor pursuant to paragraph 15 (e) or subsection (1).

This latitude also extends to the carrying out and enforcement of its own orders. Among the provisions designed to ensure that the Board's decisions will be effective, s. 123 provides that, at the request of a person affected thereby, its orders and decisions may be filed in the Registry of the Federal Court of Canada. The Board retains the right to deny such a request if it considers that there is no indication of failure or likelihood of failure to comply with the order or decision or that filing would serve no useful purpose (paras. (1) (a) and (1) (b)). Similarly, the Board has a right of supervision over the filing of any prosecution for an offence under Part V of the Code. Section 194 provides:

194. Except with the consent in writing of the Board, no prosecution shall be instituted in respect of an offence under this Part.

Finally, the principle that the Board has complete control over its own procedure is especially important in connection with the inquiries which its function mandates it to conduct. In matters concerning the acquisition and protection of bargaining rights, the Board's function enables it to intervene in ways which, in view of the complex nature of labour relations and industrial relations, must be both flexible and effective. As J. E. Dorsey has noted (Canada Labour Relations Board: Federal Law and Practice (1983), at pp. 87-88):

Of greatest importance in the Board's administrative approach to labour relations is its perception of itself as first and foremost a labour relations problem solver. It does not view its adjudicative and final decision-making authority as its primary function. It does not view itself as being court-like and, consequently, does not behave as a court is expected and required to function. The Board has adopted processes that are oriented to achieving labour relations goals rather than imitating court pretrial and trial procedures. [Emphasis added.]

In my view, unduly emphasizing the classification, judicial or quasi-judicial, of the power conferred by s. 118 (a), as both the Court of Appeal and my colleague have, runs the risk of masking this special dimension of the Board's function and, in so doing, of bypassing the particular nature of its role. In Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 68 (SCC), [1992] 2 S.C.R. 394, Gonthier J. himself observed that the classification of a given power should not per se be decisive (at p. 418):

One should beware of trying to pigeonhole the role of the Tribunal within a "judicial" or "administrative" model. This Court has since long warned of the dangers of relying on too tight a dichotomy between these models of decision (Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311, at p. 325).

With respect, I cannot adopt my colleague's reasoning, since, in his interpretation of s. 118 (a), he seems to rely heavily if not entirely on the classification of the power here at issue.

It is against this background that s. 118 (a) must be considered. Marceau J.A. of the Federal Court of Appeal concluded his analysis of this provision as follows (at p. 267 N.R.):

In giving the Board this power to compel a person to testify and produce a document—a power to which it attached special importance, since it is one of the only powers it did not allow to be delegated (s. 118(k)) — Parliament expressed its intent in language that is too clear for anyone to think the power was not to be exercised solely within the framework of a formal hearing. It may be thought that such a limitation is without justification, but it is not for the Board, any more than for the Court, to dispense with it; and in any case, I doubt that the existing limitation is so pointless that it could be simply abolished. I think the case now before the Court is highly instructive in this regard. The Board does not have only an administrative function to perform: it from time to time must first interpret complex situations of fact and of law, and in so doing choose between opposing arguments in the manner of a court of law, an incidental function for which it has no special expertise and the consequences of which may go well beyond its proper sphere. That such inquisitorial proceedings should in such circumstances be accompanied by certain measures capable of ensuring that persons before it will be adequately protected against possible abuses seems to me to be if not necessary at least very reasonable.

This is not a matter of limiting the scope of the Board's investigations, simply of requiring that to secure the production of documents and testimony of witnesses it should only use the measures at its disposal to overcome the reticence of an individual in a manner which allows that individual to adequately present the reasons for his objections. [Emphasis added.]

This conclusion is twofold. First, Marceau J.A. expressed the view that there was no ambiguity as to Parliament's intent to make the exercise of power pursuant to s. 118 (a) subject to a duty to hold a viva voce hearing. Second, he held that the procedural guarantees of the parties concerned required that this be done. I will examine these two aspects of his conclusion in turn.

1. Legislative intent

The Federal Court of Appeal concluded that the exercise of the power contained in s. 118(a) could not be undertaken without holding a viva voce hearing, despite the fact that its wording expressly provides for compelling witnesses to submit written testimony. In order to explain this last expression, Marceau J.A. referred to the first Canadian statute of general application dealing with royal commissions, the Act to empower Commissioners for inquiring into matters connected with the public business, to take evidence on oath, S. Prov. C. 1846, 9 Vict., c. 38, and to s. 4 of the Inquiries Act, R.S.C. 1970, c. I-13. This expression, according to him, comes from the fact that the original statute was adopted at a time when the use of written testimony may have been preferable, and may even have been necessary, as there were no effective means of recording and reproduction.

Without commenting on the validity of this conclusion, I feel that it overlooks an important point. The Board's predecessor, the (old) Canada Labour Relations Board, had from 1952 to 1973 the "powers of commissioners under Part I of the Inquiries Act" (Canada Labour Code, R.S.C. 1970, c. L-1, s. 160(5) (old)). Like the 1846 Act, s. 4 of the Inquiries Act, R.S.C. 1952, c. 154, contained the words "before them" before the word "witnesses". Section 4 provided:

4. The commissioners have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. [Emphasis added.]

This reference to the Inquiries Act disappeared in 1973, the year in which the Board became an independent and non-representative tribunal responsible for administering Part V of the Code. While striking from the Code references to the Inquiries Act, Parliament ignored the formulation of s. 4 when it adopted s. 118 (a) (Act to amend the Canada Labour Code, S.C. 1972, c. 18, s. 1). It is significant that, at the time of this amendment, Parliament did not reproduce in s. 118 (a) of the Code the words "before them" as used in s. 4 of the Inquiries Act: though the point is not decisive, nevertheless, given that, I cannot conclude, as the Federal Court of Appeal did, that there is no ambiguity as to the existence of a duty to hold a viva voce hearing pursuant to this paragraph. I am, therefore, quite unable to share the view taken by Gonthier J. when he argues that the meaning of s. 118(a) "is clear" (p. 735) and that the removal of the words "before them" is inconsequential. As Professor P.-A. Côté notes, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 89:

Modification of a legislative enactment may have a greater effect than first impressions might suggest… . Conversely, the meaning of a modification must be read in the context of the modified statute. [Emphasis added.]

The context must, therefore, be taken into account in interpreting s. 118 (a), and, in particular, the procedural context.

Moreover, so far as I know, of all the enabling legislation for bodies performing administrative and quasi-judicial functions, only the Canadian Human Rights Act, R.S.C., 1985, c. H-6, confers a power to compel the appearance of witnesses and filing of documents in language similar to s. 118 (a) of the Code. Section 50(2) of that Act provides, however, that this power is conferred on the tribunal in relation to a hearing. That provision is as follows:

50… .

(2) In relation to a hearing under this Part, a Tribunal may

(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Tribunal deems requisite to the full hearing and consideration of the complaint;

(b) administer oaths; and

(c) receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Tribunal sees fit, whether or not that evidence or information is or would be admissible in a court of law. [Emphasis added.]

In my view, in order to conclude as the Federal Court of Appeal did, the words "toute procédure engagée devant lui" ("any proceeding before it") in the wording of s. 118 of the Code would have to be read as "toute audience devant lui". For my part, I cannot make such an inference. The Grand Robert de la langue française (2nd ed. 1986) defines the word "procédure" as follows (t. VIII, at p. 786):

[TRANSLATION] 2. Leg. and jud. Legal manner of proceeding, "series of formalities which must be completed in succession in order to attain a desired result" (Cuche). What is the procedure to follow? A welter of formalities …, proceedings and visas (=> Paperasserie).

Spec. Body of rules or formalities which must be observed, acts that must be performed, in order to achieve a jurisdictional solution (=> Action, process, hearing, suit, trial).

At the same time, the word "audience" ("hearing") is given a more limiting definition (t. I, at p. 695):

[TRANSLATION] 1. Arch. or Lit. Action of listening to a person; attention given to person speaking… .

3… . Law and courts. Sitting of a tribunal. Judgments must be read at the hearing. Public hearing. Closed door hearing … . [Italics in original.]

In deciding that the exercise of the power contained in s. 118(a) included a duty to hold a viva voce hearing, the Federal Court of Appeal, in my view, added words that are not found in the text of the provision. At the very least, s. 118(a) contains a definite ambiguity as to the way in which the power it confers on the Board is to be exercised. That ambiguity makes it necessary to go beyond the wording of the provision and examine the procedural context at issue here.

2. Procedural guarantees

Considerations relating to procedural protection of the parties concerned seem to have had an important bearing on the interpretation adopted by the Federal Court of Appeal. This argument invites three observations.

First, there is no indication that the systematic holding of a viva voce hearing is necessary in order to allow a person affected by an application to file documents and written testimony to present his arguments effectively. The conclusion that s. 118(a) does not impose on the Board a duty to hold a viva voce hearing does not deprive a litigant who is the subject of such an order from presenting his objections in writing, just as he or she may do so regarding the merits of the principal case. If this were not so, I do not see how Parliament could have given the Board the power to dispose of cases on the merits without a public hearing. In Komo Construction Inc. v. Commission des relations de travail du Québec, 1967 118 (CSC), [1968] S.C.R. 172, Pigeon J. in fact noted that the absence of a formal hearing was not as such inconsistent with the rules of natural justice (at pp. 175-76):

[TRANSLATION] So far as application of the audi alteram partem rule is concerned, it is important to note that it does not mean a hearing should always be granted. The obligation is to provide a party with an opportunity to present its arguments. In the case at bar, where an objection was submitted which raised only a point of law, the Commission did not misuse its discretion in deciding that it did not need to hear anything more before rendering its decision. As this Court held in Forest Industrial Relations Ltd. v. International Union of Operating Engineers, 1961 294 (SCC), [1962] S.C.R. 80, a tribunal is not required to grant a hearing on all arguments raised in a matter before it. When it has available to it an analysis it considers sufficient, it has the power to reach its decision without further delay. [Emphasis added.]

Accordingly, the mere fact of requiring written testimony and the filing of documents does not imply that a party is ipso facto deprived of its right to, for example, submit its objections as to the admissibility and relevance of the testimony and documents. In the case of privileged documents, there is nothing to prevent the person required to produce them from asserting his or her rights and asking the Board to make a decision thereon, expressly identifying the documents affected and the rights relied on before forwarding them to the Board.

Second, a person affected by an order to file documents and written testimony is not without means of indicating his or her reluctance to comply. To provide protection for the rights of parties concerned in a proceeding before the Board, there is an internal procedure (the Board's power to review, rescind, amend, alter or vary its own decisions, mentioned in s. 119) and an external procedure (the Federal Court of Appeal's power of judicial review, mentioned in s. 122) to review decisions and orders of the Board. The Federal Court of Appeal has itself confirmed its jurisdiction to hear an application for judicial review resulting from an order pursuant to s. 118(a): Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., 1988 9414 (FCA), [1988] 2 F.C. 493, leave to appeal to the Supreme Court denied, [1988] 1 S.C.R. vii, as indeed it did in the case at bar. In these circumstances, I cannot see how the procedural guarantees of the parties affected are compromised by the absence of a viva voce hearing as such.

Finally, it would seem illogical for Parliament, on the one hand, to intend that the Board should have complete control of its procedure, and, on the other, to impose upon it a duty to hold a viva voce hearing, solely in order to obtain relevant information or documents that a party refuses to provide voluntarily. This would appear to be especially illogical as the Board has the right to render its decisions on the merits without any formal hearing. Such an interpretation would establish an absolute right to a viva voce hearing. Rather than simply a parenthesis in the procedure of inquiry and decision, this result would deprive the Board of complete control of its procedure and place it at the mercy of the parties, who would then have an ideal means of delaying or indeed paralysing the entire decision-making process. In Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 67 (SCC), [1989] 1 S.C.R. 1722, Gonthier J. gave the following warning (at p. 1756):

The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes. [Emphasis added.]

Similarly, in Komo Construction, supra, Pigeon J. wrote (at p. 176):

[TRANSLATION] It should be borne in mind that the Commission exercises its jurisdiction in a matter in which generally any delay is likely to cause serious and irreparable damage. While maintaining the principle that the fundamental rules of justice should be observed, it is important not to impose a code of procedure on a body to which the law intended to give complete control of its procedure. [Emphasis added.]

The effect of paras. (b) to (j) of s. 118 is to reinforce the fact that the Board is in complete control of its procedure. Accordingly, interpreting those paragraphs so as to limit to viva voce hearings the Board's power to order the filing of written testimony and documents, as my colleague does, is to give the enabling legislation too technical an interpretation contrary to the principles enunciated in Bell Canada, supra.

These principles take their full meaning in the present appeal. In the absence of clear language excluding the principle that the Board has complete control over its own procedure, courts should not adopt an interpretation which, for all practical purposes, would have the same effect. On the contrary, the apparent ambiguity of s. 118(a) requires a construction that, while remaining faithful to the fundamental principles of justice, does not neutralize the power conferred by the section. Since the procedural guarantees of the parties are not compromised by the text and context of the legislative provisions at issue here, I consider that preserving the ultimate purpose of the Board, which is that the action it takes shall be flexible and effective, is more consistent here with Parliament's primary intent.

In his reasons Gonthier J. considers that, as there is no conflict between the general purposes of the Board and restricting to a viva voce hearing the power to order the filing of written testimony and documents, a limited interpretation of s. 118(a) is justified. He bases his reasoning on Bell Canada, supra. Such an argument cannot be conclusive. To turn the argument around, the Board's primary purpose is not inconsistent with a power to order the filing of documents and to require witnesses to testify in writing outside viva voce hearings. On the contrary, the effect of such a power is to increase the Board's efficacy, by allowing it to dispose of matters without a viva voce hearing and facilitating the settlement of issues by non-litigious means. Indeed, the parties did not argue that such a power would be contrary to the general purposes of the Board. Bell Canada and the facts, therefore, cannot in any way support the argument based on them by my colleague.

As the methods of interpretation I have used make it possible to clarify the meaning of s. 118(a), there is no need to have recourse to the presumption that a statute which infringes individual rights and freedoms (here, the possible penalty of imprisonment) should be strictly construed (see Côté, supra, at p. 395).

Finally, I cannot share the view taken by Pratte and Desjardins JJ.A. that R. v. Amway Corp., supra, is relevant in this case. Amway debated the question of whether a business corporation could benefit in a penal or quasi-penal proceeding from the protection conferred by s. 11(c) of the Canadian Charter of Rights and Freedoms. This question does not arise in the case at bar.

IV—Conclusion

For all these reasons, I conclude that the Board did not err in interpreting s. 118(a) of the Code. Since, in my view, the exercise of the power to order the filing of written testimony and documents is not subject to any duty to hold a viva voce hearing, I would allow the appeal, set aside the judgment of the Federal Court of Appeal and dismiss the applications for judicial review filed pursuant to s. 28(1)( a) of the Federal Court Act, the whole with costs in all courts.

Appeal dismissed, L'HEUREUX-DUBÉ J. dissenting.

Solicitors for the appellant: McCarthy Tétrault, Montréal.

Solicitors appointed by the Court as amicicuriae: Yves Ouellette, Montréal; R. Luc Beaulieu, Montréal.

Solicitor for the intervener: John C. Tait, Ottawa.