Canadian Broadcasting Corp. v. Canada (Labour Relations Board)

Canadian Broadcasting Corp. v. Canada (Labour Relations Board)
Collection
Supreme Court Judgments
Date
1995-01-27
Report
[1995] 1 SCR 157
Case number
23142
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 23142
Decision Content
Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157
Canadian Broadcasting Corporation Appellant
v.
Canada Labour Relations Board Respondent
and
Alliance of Canadian Cinema, Television and
Radio Artists Respondent
and
Dale Goldhawk Respondent
Indexed as: Canadian Broadcasting Corp. v. Canada (Labour Relations Board)
File No.: 23142.
1994: March 14; 1995: January 27.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Labour relations ‑‑ Unfair labour practices ‑‑ Interference ‑‑ Justification ‑‑ CBC forcing journalist to choose between his position as union president and his position as radio host following publication of his article against free trade in union newspaper ‑‑ Canada Labour Relations Board deciding CBC's action constituting unfair labour practice under s. 94(1) (a) of Canada Labour Code and rejecting CBC's journalistic policy as justification for its action ‑‑ Whether Board's decision should be set aside ‑‑ Standard of review applicable to Board's decision.
Judicial review ‑‑ Standard of review ‑‑ Interpretation of external statute ‑‑ Standard of review applicable where administrative tribunal interprets external statute ‑‑ Whether administrative tribunal entitled to curial deference.
The respondent G was the host of a current affairs radio program on CBC and the president of the union which represents writers, journalists and performers. Under the union's by‑laws, the president is also its official spokesperson. In the midst of an election campaign in which free trade was a central issue, G wrote an article against free trade in the union newspaper. The CBC was concerned that his article and his public involvement as president of the union violated the CBC's journalistic policy requiring impartiality of journalists. It was agreed that, as an interim measure, G would cease hosting his program until after election day. After the election, G offered to relinquish his duties as the union's spokesperson, while remaining its president, in order to accommodate the CBC's concerns. The CBC rejected the offer and forced him to choose between his job as host of a radio program and his role as the president of the union. G resigned as union president and resumed hosting his radio program. The union filed a complaint with the Canada Labour Relations Board, alleging that the CBC had interfered with the activities of a trade union, contrary to s. 94(1) (a) of the Canada Labour Code . A majority of the Board upheld the complaint. The majority found that G's article was a union activity protected by s. 94(1) (a) and concluded that the CBC committed an unfair labour practice in forcing him to choose between the two positions and that the CBC's journalistic policy did not justify its action. The Federal Court of Appeal dismissed the CBC's application for judicial review.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Cory, Iacobucci and Major JJ.: The proper standard of judicial review to be applied to the Board's decision that the CBC had committed an unfair labour practice is one of patent unreasonableness. The issue of whether there was interference with the administration of a trade union and the representation of employees by that union, when the CBC asked G to choose between his position as union president and his position as radio host, is a question of law that Parliament intended to be answered by the Board, and not by the courts. It is a central part of the issue of whether there has been an unfair labour practice, and as such forms part of the question which Parliament, through the Code, has given the Board the exclusive jurisdiction to resolve. This jurisdiction encompasses the authority to develop a test for when such interference is established, and to define the scope of the concepts of "administration" of a union and "representation" of employees. The test developed by the Board to adjudicate the s. 94(1) (a) claims involves (1) a characterization of the activities of the union and a determination as to whether there has been employer interference with them; and (2), if such interference is made out by the union, whether there was justification for the interference. To use this analytical framework to segregate the first part of the test and label it jurisdictional ignores the fact that this issue is part of the substance of the s. 94(1) (a) determination. It is also akin to an endorsement of the preliminary questions doctrine, which this Court in recent decisions has declined to adopt as a useful test for delineating jurisdiction. Support for the conclusion that this determination is not jurisdictional in nature is found in a functional analysis of the Canada Labour Code as a whole. A broad privative clause is combined with wide powers in the Board to deal with questions put before it. Moreover, the terms at issue in this appeal are not specifically defined in the Code and the Board has developed an extensive jurisprudence to determine whether an allegation of a violation of s. 94(1) (a) has been sustained. By virtue of its specialized expertise, the Board is uniquely suited to that determination and courts should defer to that expertise unless it can be said that the Board's decision was patently unreasonable.
As a general rule, curial deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation, although in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it, a measure of deference may be appropriate. This does not mean, however, that every time an administrative tribunal encounters an external statute in the course of its determination, the decision as a whole becomes open to review on a standard of correctness. The tribunal may have to be correct in an isolated interpretation of external legislation, but the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness. The correctness of the interpretation of the external statute may affect the overall reasonableness of the decision. Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole. Here, the fact that the CBC is a creation of, and is governed by, an external statute ‑‑ the Broadcasting Act ‑‑ does not raise the overall standard of review to one of correctness, even though no deference will be shown to the Board in its interpretation of the provisions of that statute.
The Board's delineation of the relevance of external statutory imperatives in its s. 94(1) (a) analysis is within its jurisdiction. Moreover, the Board's treatment of the relationship between the Broadcasting Act , or the related journalistic policy, and the obligations imposed on the CBC by the Canada Labour Code was not in error. The general requirement in the Broadcasting Act to provide a balanced information service must be interpreted in a way that is consistent with the specific obligations contained in the Code. The Board's own analytical framework for s. 94(1) (a) contemplates such an accommodation. The journalistic policy itself, however, does not enjoy the status of legislation. It is an internal management directive promulgated by the CBC based on its own interpretation of its obligations under the Broadcasting Act . This policy cannot oust the CBC's legal obligations as found in the Canada Labour Code .
The Board's decision that the CBC had interfered with the administration of a trade union or the representation of employees by that union was not patently unreasonable. The Board, while recognizing that s. 94(1) (a) has its limits, found that the publication by a union and its officer of an article in a union newsletter expressing an opinion that a government economic policy constituted a threat or a benefit to its members was protected by s. 94(1) (a). Given the context, the extension of the content protection was not wholly unwarranted. The substance of the article was not aimed at the employer, but rather at gathering support from members for the union's official position. Further, the decision of the majority was arrived at in a principled manner and was not irrational. The Board was entitled to apply the law as found in existing decisions to new and analogous facts. It is not unreasonable to find a connection between the collective bargaining relationship and the activities of unions as they relate to external social issues affecting their members.
Alternatively, the Board also found that the CBC's action in refusing to accept G's offer that he retain his position as union president while no longer serving as its spokesperson had the effect of preventing any broadcast journalist from being the president of the union, and thus affected the right of the union to choose its president from among its entire membership. This act alone amounted to a violation of the Code. On any standard of review, the Board was entitled to find that the election of whichever person the union members wish to have as their president is an activity that falls within the concept of "administration" of a trade union or "representation" of employees by that union.
Finally, the Board's conclusion that the CBC had failed to show a valid and compelling business justification for its interference is not unreasonable. The Board considered the journalistic policy but did not find that it compelled the CBC to take the action that it did in order to fulfil its requirement of impartiality. Even if there were obligations relating to impartiality imposed by the Broadcasting Act on the CBC, they were not determinative, given the Board's finding that there was no causal connection between the requirement of impartiality and the continued presidency of G.
Per Gonthier J.: Subject to the comment of L'Heureux‑Dubé J., the reasons of Iacobucci J. were agreed with.
Per L'Heureux‑Dubé J.: Subject to the following comment, Iacobucci J.'s reasons were substantially agreed with. An administrative tribunal protected by a full privative clause, as is the Board, is entitled to curial deference in its interpretation of an external statute. The interpretation of an external statute cannot be characterized as a jurisdictional question as such. Consequently, denying curial deference to such a tribunal in this respect seems inconsistent with the jurisprudence of this Court concerning the standard of review of decisions of these tribunals. The Board's interpretation of an external statute thus has no effect on the appropriate standard of judicial review, which, in this case, is one of patent unreasonableness since the decision reached by the Board is entirely within its jurisdiction.
Per La Forest J.: This case raises a very narrow issue. The alternative ground upon which Iacobucci J. supports the Board's decision is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.
Per Sopinka J.: The pragmatic and functional approach is to be used to ascertain whether Parliament intended that the determination of the matters included within s. 94(1) (a) of the Canada Labour Code be left to the Board or whether the section was a provision intended to limit the Board's jurisdiction. In making this determination, the focus is not on whether the union's activity in opposing free trade was intended by Parliament to be included in s. 94(1) (a), but rather on what activity in general Parliament intended to include in the section and its possible reach if not interpreted correctly in accordance with the legislative intention. Given the range of union activity which could be the subject of a complaint under s. 94(1) (a), much of which has little or nothing to do with the purposes of the Code, Parliament cannot have intended to leave it to the Board to determine which part of this activity can be swept into its jurisdiction so as to enable it to subject an employer to sanctions for engaging in "unfair labour practices". Accordingly, s. 94(1)(a) is a provision intended to limit the Board's jurisdiction and the standard of review applicable to the Board's decision is correctness.
The alternative ground upon which Iacobucci J. supports the Board's decision, however, is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.
Per McLachlin J. (dissenting): The functional test is question‑specific and must be applied to each question which the Board considered, and the appropriate standard of review must then be applied to its answers. This requirement is not obviated by the fact that a question is part of the substance of the dispute, nor by the fact that it may be "preliminary" or jurisdictional.
The first question the Board was required to consider was whether the union's statements on political matters outside the collective bargaining context were protected by s. 94(1) (a) of the Canada Labour Code . A functional analysis clearly demonstrates that the interpretation of the ambit of s. 94(1) (a) lies at the core of the Board's mandate and was intended by Parliament to be left to the Board, notwithstanding that the question goes to the Board's power or "jurisdiction". A court can therefore only interfere with the Board's conclusion that G's statements were protected by the Code if its conclusion is patently unreasonable. This conclusion is patently unreasonable from the perspective of both the purpose of the Code and the authorities. The purpose of the Code is to promote and preserve the collective bargaining system and the protection provided by s. 94(1) (a) to employees who speak out is confined to that purpose. Thus, only union statements relating to the collective bargaining process fall within the ambit of s. 94(1) (a) protection; statements made for personal or political reasons are not protected. The courts have made the same distinction. In arriving at the conclusion that all statements of union officials are protected by the Code, except those which are abusive, the majority of the Board failed to address the real issue and made an unsupportable conclusion. The inclusion of all non‑abusive union statements within the ambit of s. 94(1) (a) is not a rational extension of the law into analogous areas but rather an attempt to take protection into areas where there is neither precedent nor practical justification for protection.
On the question of interference with a union activity, the applicable standard of review is also patent unreasonability. Had the CBC's action in putting G to a choice between continuing as union president and continuing as host of his program been in response of a statement made by G in the course of collective bargaining, it would clearly have constituted interference with a union activity under s. 94(1) (a).
Finally, assuming the CBC interfered with a union activity protected by the Code, the standard of review applicable to the Board's conclusion on the question of the justifiability of the CBC's conduct under its statutory regime is correctness. This question is outside the special competence of the Board, which has no expertise in interpreting this Broadcasting Act or its regulatory regime. Given the CBC's obligation under the Broadcasting Act to maintain the perception of impartiality in its public affairs broadcasts, the majority of the Board erred in finding that the legislation, policy and administrative review process governing the CBC did not justify it in interfering. In treating the CBC as a private enterprise governed only by a flexible management directive which must yield to the superior legal demands of s. 94(1) (a), the Board failed to consider the special obligation imposed on the CBC by law. The CBC policy was capable of being considered a "compelling reason" for interfering with the activity of the union.
Cases Cited
By Iacobucci J.
Distinguished: Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266; Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canadian Broadcasting Corp. (1991), 86 di 92; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Haldimand‑Norfolk Regional Board of Commissioners of Police v. Ontario Nurses' Association (1990), 41 O.A.C. 148; McLeod v. Egan, [1975] 1 S.C.R. 517; Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Wentworth County Board of Education v. Wentworth Women Teachers' Assn. (1991), 80 D.L.R. (4th) 558; Ontario Nurses' Assn. v. Etobicoke General Hospital (1993), 14 O.R. (3d) 40; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Quan v. Canada (Treasury Board), [1990] 2 F.C. 191; McDonnell Douglas Canada Ltd., [1988] O.L.R.B. Rep. May 498; Canada Post Corp. (1987), 71 di 215; Canada Post Corp. (1988), 75 di 189.
By L'Heureux‑Dubé J.
Distinguished: McLeod v. Egan, [1975] 1 S.C.R. 517; referred to: Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.
By Sopinka J.
Referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.
By McLachlin J. (dissenting)
U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384; MacMillan Bloedel Ltd. v. British Columbia Hydro & Power Authority (1992), 72 B.C.L.R. (2d) 273; British Columbia Hydro & Power Authority and Int'l Brotherhood of Electrical Workers, Locals 258 and 213, [1976] 2 C.L.R.B.R. 410; Re Inco Ltd. and United Steelworkers of America, Local 6166 (1978), 86 D.L.R. (3d) 407 (Man. C.A.), aff'g (1977), 81 D.L.R. (3d) 469 (Man. Q.B.); Health Labour Relations Association and Hospital Employees' Union, Local No. 180 (1983), 3 C.L.R.B.R. (N.S.) 390; Metro Transit Operating Co. v. Independant Canadian Transit Union, Local 3, 83 C.L.L.C. ¶ 16,054; Re United Glass & Ceramic Workers of North America and Domglas Ltd. (1978), 85 D.L.R. (3d) 118; British Broadcasting Corp. v. Hearn, [1978] 1 All E.R. 111; Mercury Communications Ltd. v. Scott‑Garner, [1984] 1 All E.R. 179 (C.A.); Associated Newspapers Group Ltd. v. Flynn (1970), 10 K.I.R. 17; Luce v. London Borough of Bexley, [1990] I.R.L.R. 422; Canada Post Corp. (1987), 71 di 215; Québecair/Air Québec (1987), 72 di 44; Canada Post Corp. (1988), 75 di 189; Wardair Canada Inc. (1988), 76 di 103; Cadillac Fairview Corp. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206; McLeod v. Egan, [1975] 1 S.C.R. 517; Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Re Canadian Broadcasting Corp. and National Association of Broadcast Employees and Technicians (1973), 4 L.A.C. (2d) 263.
Statutes and Regulations Cited
Broadcasting Act, R.S.C., 1985, c. B‑9, s. 3.
Canada Labour Code, R.S.C., 1985, c. L‑2 , Part I "preamble", ss. 8(1) , 18 , 22 [am. 1990, c. 8, s. 56], 94(1)(a), (3), 96, 97(1), 98(1), (4), 99.
Federal Court Act, R.S.C., 1985, c. F‑7, s. 18.1(4) (c) [ad. 1990, c. 8, s. 5].
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose‑leaf).
Arthurs, Harry William, et al. Labour Law and Industrial Relations in Canada, 4th ed. Markham, Ont.: Butterworths, 1993.
Bryden, Philip L. "Administrative Law ‑‑ Review for Jurisdictional Error ‑‑ Labour Board Decision Held to be Patently Unreasonable: United Association of Journeymen and Apprentices of the Pipefitting Industry v. W.W. Lester (1978) Ltd." (1992), 71 Can. Bar Rev. 580.
Citrine's Trade Union Law, 3rd ed. By M. A. Hickling. London: Stevens & Sons Ltd., 1967.
Gall, Peter A. "Judicial Review of Labour Tribunals: A Functional Approach", in Proceedings of the Administrative Law Conference, held at the University of British Columbia, Faculty of Law, on October 18 and 19, 1979. Vancouver: U.B.C. Law Review, 1981, 305.
MacLauchlan, H. Wade. "Reconciling Curial Deference with a Functional Approach in Substantive and Procedural Judicial Review" (1993), 7 C.J.A.L.P. 1.
Sweet & Maxwell's Encyclopedia of Employment Law, vol. 2. London: Sweet & Maxwell, 1992 (loose‑leaf).
Weiler, Paul. Reconcilable Differences. Toronto: Carswell, 1980.
APPEAL from a judgment of the Federal Court of Appeal, [1992] 2 F.C. 665, 92 D.L.R. (4th) 316, 141 N.R. 116, 92 C.L.L.C. ¶ 14,035, dismissing a CBC's application to review and set aside a decision of the Canada Labour Relations Board (1990), 83 di 102, 91 C.L.L.C. ¶ 16,007. Appeal dismissed, McLachlin J. dissenting.
Roy L. Heenan and Tom Brady, for the appellant.
Peter C. Engelmann and Johane Tremblay, for the respondent the Canada Labour Relations Board.
Paul J. Falzone and Aubrey E. Golden, Q.C., for the respondents the Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk.
The judgment of Lamer C.J. and Cory, Iacobucci and Major JJ. was delivered by
1 Iacobucci J. -- The Canadian Broadcasting Corporation ("CBC") seeks judicial review of the decision of the Canada Labour Relations Board that the CBC interfered with the activities of the respondent trade union, the Alliance of Canadian Cinema, Television and Radio Artists ("ACTRA"), in contravention of s. 94(1) (a) of the Canada Labour Code, R.S.C., 1985, c. L-2 .
I. Facts
2 The membership of ACTRA is divided into three guilds: writers, journalists and performers. ACTRA, like many unions, takes official positions on various issues. For example, it supports the Canadian content rule for broadcasters. It apparently also opposes free trade. ACTRA has an official newsletter, ACTRASCOPE, which is distributed to its 10,000 members across Canada.
3 ACTRA's by-laws provide that the president of ACTRA is also to be its official spokesperson. In 1988 the president of ACTRA was a journalist, Dale Goldhawk. Goldhawk had been hired by the CBC in January 1988 to host a national weekly open-line current affairs radio program, Cross Country Checkup. At the time of his hiring, the CBC was aware that he was the president of ACTRA.
4 In the late summer of 1988, Goldhawk wrote an article in "The President Reports" column of the fall issue of ACTRASCOPE. Under the title "Election brings the trade debate to a boil", he took a strong position against the Free Trade Agreement then being negotiated with the United States. In the article he attacked the agreement and invited membership of ACTRA to mount a campaign in opposition. At the time of the publication of the article, the country was in the midst of an election campaign in which free trade was a central issue.
5 In November 1988, the existence of Goldhawk's column was made known to the general public in a newspaper article written by Charles Lynch, a journalist and long-standing member of ACTRA. Lynch's article, entitled "Free trade: foes are alive and well and working for the CBC", was published in the Ottawa Citizen and the Vancouver Province. In his article, Lynch argued that the listening public was entitled to on-air disclosure of Goldhawk's role in ACTRA and the union's position on free trade.
6 Lynch's article was brought to the attention of the area head of current affairs for the CBC Radio. This prompted a series of meetings between Goldhawk and representatives of the CBC to determine the appropriate course of action. At issue was whether Goldhawk's article, and his public involvement as president of ACTRA, violated the Journalistic Policy of the CBC. It was agreed that, as an interim measure, Goldhawk would cease hosting Cross Country Checkup until after election day. Goldhawk simultaneously withdrew from any further public involvement on behalf of ACTRA.
7 After the election, Goldhawk offered to relinquish his duties as ACTRA's spokesperson, while remaining its president, in order to accommodate the concerns of the CBC. This offer was rejected. The CBC told Goldhawk that he had to choose between his job as host of Cross Country Checkup and his role as the president of ACTRA. Goldhawk resigned as ACTRA president and resumed hosting his radio program.
8 The union filed a complaint with the respondent Canada Labour Relations Board, alleging violations by the CBC of ss. 94(1)(a), 94(3)(a)(i), 94(3)(b), 94(3)(e) and 96 of the Code. A majority of the Board found that the CBC had violated s. 94(1) (a) of the Canada Labour Code , and a declaration to that effect was issued: (1990), 83 di 102, 91 C.L.L.C. ¶ 16,007. The Federal Court of Appeal unanimously dismissed the CBC's application for judicial review: [1992] 2 F.C. 665, 92 D.L.R. (4th) 316, 141 N.R. 116, 92 C.L.L.C. ¶ 14,035. The CBC now appeals to this Court.
II. Relevant Statutory Provisions
Canada Labour Code, R.S.C., 1985, c. L-2
8. (1) Every employee is free to join the trade union of his choice and to participate in its lawful activities.
22. (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 the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that 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
(a) be questioned, reviewed, prohibited or restrained, or
(b) be 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.
94. (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union;
. . .
(3) No employer or person acting on behalf of an employer shall
(a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person
(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of a trade union or participates in the promotion, formation or administration of a trade union,
. . .
(b) impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred on him by this Part;
. . .
(e) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a trade union. . . .
96. No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union.
98. . . .
(4) Where a complaint is made in writing . . . in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.
III. Judgments Below
Canada Labour Relations Board (1990), 83 di 102
Majority (Vice-Chairman Serge Brault and Member Linda Parsons)
9 At the outset of their extensive reasons, the majority stated that the issue to be decided was whether the Canada Labour Code was violated when Goldhawk was asked to choose between his position as a radio host and his position as president of the union.
10 On the issue of the burden of proof, the majority noted that s. 98(4) of the Code placed the onus of proof on the employer in respect of all of the sections invoked except ss. 94(1) (a) and 96. The majority pointed out that a distinction could also be drawn between s. 94(1) (a), and the other sections invoked by the union, in respect of the issue of motive. To succeed under s. 94(1) (a), it was not necessary for a complainant to establish anti-union animus on the part of the employer. Rather, this provision called for an objective test which focused on the effect of the employer's actions on the legitimate rights of employees or their unions.
11 The majority added, however, that not every difficulty encountered by a union in its formation and administration would give rise to a finding that s. 94(1) (a) had been violated. The Board would instead apply a balancing test, which considered whether the adverse impact on union activity was counterbalanced by a "sufficient or legitimate managerial, entrepreneurial, or collective bargaining justification" (p. 128). In cases where the balance was equal, motive would be the determining factor.
12 In defining what amounted to a "legitimate management interest", it was clear that the detrimental effect on entrepreneurial interests had to be real and to constitute more than a minor annoyance or inconvenience to the employer. The majority summarized the test to be applied under s. 94(1) (a) in the following terms (at p. 131):
In brief, under the Canada Labour Code , an employer's actions that actually interfere with employee solicitation on the job will indeed be subject to a balancing test and will be found illegal pursuant to section 94(1) (a) unless compelling and exceptional circumstances justify such bans. Other kinds of employer's decisions that actually interfere with the rights protected under section 94(1) (a) will be assessed on the basis that the Code takes precedence over any employer rule. . . .
13 The majority considered whether Goldhawk was engaged in a lawful union activity contemplated by the Code when he signed his article in ACTRASCOPE. The majority recognized that s. 94(1) (a) could not serve as an umbrella for all union activities. The activity in which Goldhawk participated was the signing of an article in a union newspaper as spokesperson for that union. It was the role of the Board to decide whether ACTRA as a union and Goldhawk as a union official were entitled to statutory protection in this situation. The majority answered this question in the affirmative, and commented (at p. 133):
In the instant case, Mr. Goldhawk's article was published in the union's newsletter and was aimed at a limited union readership. It seems reasonable to assume that under the Code a union president may at least say to his troops verbally or in writing what he can say to the public at large.
14 The majority noted that the Broadcasting Act, R.S.C., 1985, c. B-9 (as it then read), provided that Goldhawk was not a public servant. His labour relations were to be governed by the same provisions of the Code as those of persons working for private broadcasters. After reviewing numerous previous decisions of the Board, the majority (at p. 137) referred to Canada Post Corp. (1988), 75 di 189, where the Board set out the following guidelines on the right of a union officer to speak publicly:
[The statement] would have to be relevant to the policies, interests and concerns of the union as such, although it would not have to be something virtually scripted by the union and followed slavishly by the officer. The protection of the Code would not extend to a union officer who used his or her position to make public comments concerning an employer in furtherance of a personal or other objective which could not be linked to the interests of the collectivity.
Statements which were malicious or recklessly untrue would lose the protection of the Code.
15 The majority noted that all but one of the decisions cited by the parties dealt with public statements aimed directly at the employer. They made it clear that the right of union officials to make such statements flowed from the Code, and that officials acting in good faith could expect statutory protection that was not necessarily granted to all employees. This jurisprudence, however, was of limited application in the present case, since it concerned an article published by a union official in a union newspaper in a context where he was gathering support within the union for a position it had officially adopted. The majority concluded (at pp. 144-45):
When a union finds that a government economic policy such as free trade constitutes a threat or a benefit to its membership, an article on that subject appearing in a union publication is indeed a lawful union activity under the Code.
For the majority, for a union of artists and performers who work in an often highly subsidized industry to take a position on a Free Trade Agreement is as legitimate as it is for the Teamsters Union to express their opinion on deregulation in the transportation industry.
Further, the fact that Mr. Goldhawk's role as a spokesperson was determined by ACTRA in its by-laws is protected under the right of unions to adopt their own constitutions and rules protected by section 94(1)(a) of the Code. . . .
16 The majority found that the choice given to Goldhawk, to resign his post with ACTRA or to lose his job with the CBC, was not tainted with anti-union animus, and therefore no violation of ss. 94(3)(a)(i), 94(3)(e) or 96 could be established. ACTRA does not dispute this finding.
17 Turning to the justification part of the s. 94(1) (a) test, the majority noted that the question was not whether the CBC's Journalistic Policy was reasonable, as arbitration boards in other situations had found, but whether it was legal to apply it to Goldhawk in the circumstances. The particular application of the Policy had to be compatible with the CBC's statutory obligations under the Code. The majority considered whether the CBC had shown compelling business reasons for its decision. They noted that if the bargaining unit represented by ACTRA had been composed solely of on-air journalists, the union would have been paralysed. In holding that a violation of s. 94(1) (a) had been established, the Board concluded (at pp. 147-48):
Past experience within the CBC shows that other means, such as on-air disclosure, were used to ensure the public's right to impartiality. Further, we do not see how Mr. Goldhawk's forced resignation made him less identifiable with a controversial issue than before. In fact, it could be argued at least in the eyes of some, that he was sacrificed to free trade and in that sense that he is still very much identified with the issue, regardless of his resigning his union office.
18 The majority found that Mr. Goldhawk's article was related to the interests of the collectivity of the union and was neither reckless nor maliciously untrue. The effect of the CBC's decision was to prevent a CBC journalist from being the president of ACTRA. That alone constituted a violation of the Code. Moreover, on an application of the balancing test, it was clear that the CBC did not try to reconcile its own legitimate business interests with those of Goldhawk as a union member. It failed to show any convincing causal relationship between its image of impartiality and Goldhawk's continuing to hold office as ACTRA president. The majority found a violation of s. 94(1)(a) of the Code, and issued a declaration and accompanying cease and desist order.
Dissent (Member Evelyn Bourassa)
19 The dissenting member agreed with the factual findings of the majority, including the finding of an absence of anti-union animus. However, she disagreed with the conclusion of the majority that the CBC had interfered with the activities of a trade union. The protection afforded by the unfair labour practice provisions of the Code did not extend to all lawful activities of a trade union, and she would have characterized the activities for which the union sought protection as purely political activities. The free trade debate was not an issue between ACTRA and the CBC in the context of their collective bargaining relationship or their general labour relations.
20 The dissenting member noted that the Canada Labour Relations Board had jurisdiction over the activities of trade unions in so far as those activities concerned the union's role as bargaining agent for employees involved in federal works, undertakings or businesses. Trade unions themselves were not federal undertakings. Therefore, an interpretation of the Code that would extend its application to activities outside of the collective bargaining relationship seemed to her unwarranted in light of the constitutional uncertainty surrounding the authority of Parliament and of the federal Board over trade unions per se.
21 The dissenting member asserted that the position of the majority ignored the reality of today's unions, which involve themselves in many situations that do not relate to collective bargaining. Such activities were legitimate, in the sense that they were not illegal, but they were not protected by the Code. She distinguished the cases cited by the majority, and noted that even these cases pointed out that the public statements under scrutiny had to relate to collective bargaining matters. As for the Canada Post Corp. cases ((1987), 71 di 215 and (1988), 75 di 189), they did not involve an employer who was involved in the sensitive areas of communications and broadcast journalism.
22 The dissenting member therefore declined to deal with the complaint on the merits, but did note that the concern of the CBC regarding its impartiality was not just a legitimate concern, it was a matter with which it had to be concerned. Its unique role as a broadcaster with a mandate to promote national unity, and its role as a public broadcaster receiving a significant portion of its budget from public funds, demanded that the CBC maintain the highest standards of impart