Tomko v. Labour Relations Board (N.S.) et al.

Tomko v. Labour Relations Board (N.S.) et al.
Collection
Supreme Court Judgments
Date
1975-12-19
Report
[1977] 1 SCR 112
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Nova Scotia
Subjects
Administrative law
Constitutional law
Decision Content
Supreme Court of Canada
Tomko v. Labour Relations Board (N.S.) et al., [1977] 1 S.C.R. 112
Date: 1975-12-19
Alex Tomko Appellant;
and
Labour Relations Board (Nova Scotia); Canatom Mon-Max; Labourers’ International Union of North America, Local 1115; and the Attorney General of Nova Scotia Respondents;
and
Alex Tomko Appellant;
and
John F. MacDonald, Donald C. MacNeil and The Attorney General of Nova Scotia Respondents;
and
The Attorney General of Canada, the Attorney General of Ontario, The Attorney General of Quebec, The Attorney General of British Columbia, The Attorney General of Alberta and The Attorney General of Saskatchewan (Intervenors)
1975: October 9, 10; 1975: December 19.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Constitutional law—Distribution of powers—Validity of provincial legislation empowering provincial labour relations board to issue ‘cease and desist’ orders—Distinction between ‘cease and desist’ order and injunction—British North America Act, 1867, s. 96—Trade Union Act, 1972 (N.S.), c. 19, s. 49.
Administrative law—Labour relations board—Validity and regularity of interim order—‘Cease and desist’ order—Administrative character of such order—British North America Act, 1867, s. 96—Trade Union Act, 1972 (N.S.), c. 19, s. 49.
Respondent employer lodged a complaint with the Labour Relations Board and requested a cease and desist order. It named as respondents the union with which it had a collective agreement, the union’s business agent Tomko and employees who were union members and taking part in an allegedly illegal work stoppage. The chief executive officer of the Board received the complaint and in informing the members of the Construction Industry Panel by telephone said that he would report back further after making an investigation. He contacted the manager of the project where the strike was and then telephoned Tomko to inform him of the complaint though without reading the whole document to him. Thereafter he talked with two other union officials and then without further communication with Tomko contacted the chairman of the Board and similarly the two other persons who with the chairman acted as members of the Construction Industry Panel and reported orally on his inquiries. The Panel that same day issued an interim cease and desist order of which the parties were informed by telephone. A copy of the complaint and of the interim order were mailed to Tomko. Three days later Tomko was served with a summons charging him with a failure to comply with the interim order. Tomko brought certiorari proceedings to have the order quashed and also sought prohibition against a magistrate to enjoin him from hearing the charge of failure to obey the interim order. Both proceedings were reserved for consideration by the Appeal Division which in a unanimous judgment dismissed both applications. Two questions were raised on subsequent appeal, a constitutional one relating to s. 96 of the B.N.A. Act in its bearing on the Trade Union Act, 1972 (N.S.), c. 19, particularly s. 49, and an administrative one concerning the validity and regularity of the interim order.
Held (de Grandpré J. dissenting): The appeal should be dismissed.
Per Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.: The contention was made by the appellant and by the Attorney General of Canada that the power to issue cease and desist orders and allied mandatory orders is equivalent to a power to grant an injunction which has been traditionally a power of a Superior Court. However, the Board, or Panel, does not approach the issue of a cease and desist order in the same way as a Court approaches the issue of an injunction. The Board, or Panel, makes its own investigations of the issues raised by a complaint and decides on its own findings whether an interim order should issue.
The character of the Board is that of a non-legal but specialized agency having a limited discretionary power to apply remedies to support the precepts of the legislation. The added power thought necessary to enable such an administrative agency to deal with illegal strikes or lockouts (viz. the authority to induce or compel a settlement on the cease and desist order) and given to the Board by s. 49 of the Trade Union Act does not offend s. 96 of the B.N.A. Act.
The emergency nature of the s. 49 proceeding is clear. Section 49(2) permits the Board or Panel to issue an interim order if satisfied after investigation of a complaint that s. 48 has not been complied with “nothwithstanding any provision of this Act.” An administrative agency which has not been clearly charged to conduct an investigation itself can do so through its officers especially in the exercise of an emergency authority to make an interim order. As s. 49(2) empowers the Board (or Panel) to direct an interim order to “any person” and against “any activity or action”, the terms of the order did not require to be limited to the exact requests for relief sought in the complaint.
Per de Grandpré J. dissenting: The power vested in the Board under s. 49 to issue an order to cease and desist is in substance a power to issue an injunction; such a power, by its nature, is vested in the Superior Courts in s. 96 of the B.N.A. Act and may not be conferred on a body the members of which are not appointed in the manner provided in that section, even though the particular type of injunction, in this case an injunction in labour law, was unknown in 1867. The similarity between the order in question and an injunction is apparent from the very words used by the Board and by s. 49(8) of the Trade Union Act. The Board is not a s. 96 Court as such but s. 49 gave it a function to perform which, by its nature, belongs to the courts described in s. 96. The function is not incidental to the administrative function of the Board, since the Board operated until 1968 without it and since the ordinary courts retain a parallel jurisdiction.
[Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134; Tremblay v. La Commission des Relations de Travail du Québec, [1967] S.C.R. 697 followed; Dupont v. Inglis, [1958] S.C.R. 535; A.G. (Ont.) and Display Services Co. Ltd. v. Victoria Medical Building, [1960] S.C.R. 32; Brooks v. Pavlick, [1964] S.C.R. 108; International Brotherhood of Electrical Workers v. Winnipeg Builders Exchange, [1967] S.C.R. 628; Re Polymer Corp. (1961), 26 D.L.R. (2d) 609, aff’d. (1961), 28 D.L.R. (2d) 81, aff’d. [1962] S.C.R. 338 referred to.]
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], in the matter of applications for orders of the nature of certiorari and prohibition reserved for the consideration of the Appeal Division pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2 by Cowan C.J.T.D. Appeal dismissed, de Grandpré J. dissenting.
Sydney L. Robins, Q.C., Raymond Koskie, and Joel Pink, for the appellant.
Kenneth A. MacInnis, Graham Stewart, and Mary Clancy, for the respondents, Labour Relations Board (N.S.), the Attorney General of Nova Scotia, John F. MacDonald and Donald C. MacNeil.
Merlin Nunn, Q.C., and Gregory North, for the respondent, Canatom Mon-Max.
T.B. Smith, Q.C., for the Attorney General of Canada.
D.W. Mundell, Q.C., and Lorraine E. Weinrib, for the Attorney General of Ontario.
Ross Goodwin, for the Attorney General of Quebec.
D.H. Vickers, and N.J. Prelypchan, for the Attorney General of British Columbia.
Darryl G. Bogdasavich, for the Attorney General of Saskatchewan.
William Henkel, Q.C., for the Attorney General of Alberta.
The judgment of Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ. was delivered by
THE CHIEF JUSTICE—This appeal raises two questions, one of constitutional law and one of administrative law. The constitutional question relates to s. 96 of the British North America Act in its bearing on certain provisions of the Trade Union Act, 1972 (N.S.), c. 19 and especially s. 49, which authorizes the Nova Scotia Labour Relations Board, and the division thereof called the Construction Industry Panel, to issue cease and desist orders and also orders of an affirmative nature in respect of a lockout or strike prohibited by the Act, or in respect of a jurisdictional dispute over the assignment of work. The administrative law question concerns the validity and regularity, under the Act and the regulations thereunder, of an interim order made under s. 49 by the Construction Industry Panel, an order directed to the appellant Tomko, to a union of which he was the business agent, and to employees members of the union who were engaged in an unlawful strike. Neither the union nor the aforesaid employees are parties to this appeal.
The Trade Union Act, which is at the base of the two questions of law in this case and of the issues to which those questions give rise, is of a character common to labour relations legislation in Canada. It was first enacted in 1947 and was refined in 1964 and 1968, and again in 1972, to be better able to deal with the complexities of labour relations resulting from the increasing sophistication of unions and employers in that field. Briefly, the Act establishes a procedure for certification of trade unions, and provides for the negotiation of collective agreements and for the conciliation of negotiation differences, and for the arbitration of disputes arising under concluded collective agreements. The freedom of employees to engage in collective bargaining through unions of their own choosing and the integrity of the collective bargaining process are protected by the prohibition of specified unfair labour practices and by the prohibition of strikes and lockouts pending certification and the conclusion of prescribed conciliation procedures and by the prior requirement of a favourable strike vote. In addition, strikes and lockouts are prohibited during the currency of a collective agreement.
Administration of the Act is confided largely to a bipartite Labour Relations Board with an independent Chairman, all members serving on a part time rather than on a full time basis. Since 1964 the Board has been invested with power to give remedial relief against unfair labour practices, as by ordering reinstatement of employees unfairly dismissed in violation of the Act and by ordering the employer to compensate them for loss of remuneration. Similarly, the Board may order reinstatement or admission of an employee as a union member and compensation for monetary loss suffered by reason of unlawful union disciplinary action. In 1968, the Legislature invested the Board with cease and desist powers in respect of illegal work stoppages, whether lockouts or strikes, and set up a speedy procedure for certification of unions in the construction industry. Additional attention was paid to the construction industry in the 1972 revision of the Act by the establishment of a Construction Industry Panel of the Board and by providing for the accreditation of employer organizations in that industry. Arbitration procedures therein were strengthened and the Board’s enforcement authority was given greater force in respect of unfair practices and of cease and desist orders in respect of unlawful work stoppages.
Sections 48 and 49 of the present Act are the provisions immediately germane to the determination of the constitutional question. That question, in respect of which there was an intervention by the Attorney General of Canada in support of the appellant and interventions by the Attorneys General of Ontario, Quebec, British Columbia, Saskatchewan and Alberta in support of the respondents (among whom was the Attorney General of Nova Scotia) was formulated as follows:
Whether Section 49 of the Trade Union Act of Nova Scotia is ultra vires of the Legislature of Nova Scotia because it purports to confer on the Construction Industry Panel of the Labour Relations Board (Nova Scotia) judicial powers and functions which under Section 96 of the British North America Act can only be exercised by and conferred upon a Court whose members are appointed by the Governor General in Council. In addition to ss. 48 and 49 of the Act, reference may be made, to assess the constitutional question in fuller perspective, to ss. 81 and 82. These provisions in their relevant terms read as follows:
48. (1) In this Section, Section 49 and Section 50,
(a) “person” includes a trade union, council of trade unions, employee, employer, employers’ organization and any agent, attorney or counsel of a person, trade union, council of trade unions, employee, employer or employers’ organization;
(b) “work stoppage” means any discontinuance or cessation of all or any part of the normal work or activity carried on by an employer and employees on whose behalf a trade union is certified as bargaining agent caused by
(i) a lockout or strike prohibited by this Act; or
(ii) a jurisdictional dispute.
(2) No person shall cause, authorize, participate in or commit a work stoppage.
49. (1) Any person who claims to be involved in or affected by acts contrary to Section 48 may make a complaint to the Board identifying the complainant and the circumstances and nature of the work stoppage.
(2) If the Board is satisfied after investigation of the complaint that Section 48 has not been complied with, the Board, notwithstanding any provision of this Act, may issue an interim order requiring any person named in the order to forthwith cease and desist any activity or action or to perform any act or commence any activity or action stated in the interim order.
(3) Where there has been a complaint under subsection (1) the Board may, before or after the making of an interim order under subsection (2), authorize an officer of the Department of Labour or a person designated by the Minister, to inquire into the acts complained of, to endeavor to effect a settlement and to make a report to the Board.
(4) If the officer of the Department of Labour or a person designated by the Minister is unable to effect a settlement or if the complainant or a person named in an interim order so requests in writing, the Board shall conduct a hearing for the purpose of considering evidence and representations together with the report made in accordance with subsection (3) and shall arrive at a decision with respect to the complaint.
(5) The decision shall be in the form of and issued as an order of the Board and may
(a) require any person to forthwith cease and desist any activity or action or to perform any act or commence any activity or action;
(b) confirm, vary or rescind an interim order.
…
(8) An interim order in accordance with subsection (3) or decision of the Board in accordance with subsection (5) shall have the force and effect of law and shall be binding upon and govern the persons involved in or affected by acts contrary to Section 48 and shall bind and govern any person named in the interim order or decision.
…
(11) An interim order in accordance with subsection (3) is deemed to be in force until a decision in accordance with subsection (5) is made or the Board makes an order rescinding or varying the interim order and a decision in accordance with subsection (5) is deemed to be in force unless the Board makes a further order rescinding or varying the decision.
…
81.…
(3) Every trade union that declares or authorizes a strike contrary to this Act is liable upon summary conviction to a penalty not exceeding three hundred dollars for each day that the strike exists.
(4) Every officer or representative of a trade union who declares or authorizes a strike contrary to this Act is liable upon summary conviction to a penalty not exceeding two hundred dollars for each day that the strike exists.
…
82. (1) Every person who, knowing that he is required to perform any act or to cease or desist from any act by virtue of an interim order or decision of the Board made pursuant to Section 49 of this Act,
(a) fails to perform any act required by the interim order or decision; or
(b) fails to cease or desist from any act required by the interim order or decision,
is guilty of an offence and is liable on summary conviction to a penalty not exceeding one thousand dollars, in the case of an individual, or ten thousand dollars in any other case.
… (4) Each day that a person commits an offence under subsection (1) constitutes a separate offence.
…
Section 96 of the British North America Act, in terms an appointing power (“The Governor General shall appoint the Judges of the Superior, District and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick”), is now regarded as a limitation not only on provincial power to provide for the appointment of Judges of the status of those mentioned in s. 96 but also on their power to invest agencies of their creation and members thereof appointed under their authority with jurisdiction or powers that (to use the formula adopted by the Privy Council and by this Court in a succession of cases) are broadly conformable or analogous to jurisdiction or powers exercised and exercisable by Courts which are within s. 96. In my opinion, the judgment of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.[2], and of this Court in Tremblay v. Commission des Relations de Travail du Québec[3], have properly emphasized what other cases have reflected in their consideration of the force of s. 96 (as for example, Dupont v. Inglis[4], Attorney General for Ontario and Display Services Co. Ltd. v. Victoria Medical Building[5] and Brooks v. Pavlick[6], namely, that it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation. I think that this is particularly true where remedial authority, such as that involved in the present case, is concerned.
Although no constitutional objection is taken here to the constitution of the Labour Relations Board or of its Construction Industry Panel, nor to the powers granted in respect of certification and the monitoring of unfair practices, it is contended by the appellant and by the Attorney General of Canada that the power to issue cease and desist orders and allied mandatory orders is equivalent to a power to grant an injunction which has been traditionally a power of a Superior Court. Without insisting that the allegedly judicial character of this power was determinative of the constitutional issue, the appellant and the Attorney General of Canada relied on statutory history to support their submission that the addition to the arsenal of Board powers of the power to issue cease and desist orders indicated that it was not essential to the maintenance of the integrity of the collective bargaining system envisaged by the Trade Union Act but rather provided a remedy open concurrently with or alternatively to the injunction that Superior Court Judges could issue in like circumstances under the Nova Scotia Judicature Act, 1972 (N.S.), c. 2, ss. 39 and 40. Indeed, it was submitted that the power under s. 49 of the Trade Union Act was even broader than the power given by the Judicature Act to issue injunctions in labour relations matters.
The legislative history relied on related to the fact that when the Board was given power in 1968 to issue cease and desist orders provision was made for filing them in the office of the prothonotary of the Supreme Court whereupon they became enforceable in the same manner as orders of that Court. In 1972, this method of enforcement was dropped and s. 82 was enacted to provide for prosecution and imposition of a heavy penalty for failure to obey a cease and desist order made under s. 49. What is clear under the previous state of the law as under the present state is that the Board (or, as here, the Construction Industry Panel) does not have power itself to punish for a breach of a cease and desist order in contradistinction to the power of a Superior Court to entertain contempt proceedings upon a breach of an injunction issued by the Court. Again, the retention by the ordinary Courts of power to issue injunctions in labour‑management disputes, albeit with restrictions on their power to issue interim or interlocutory injunctions ex parte, is simply a consideration which must be taken into account on the constitutional question. There may, indeed, be a choice open of one of three available procedures for seeking relief against an unlawful strike or lockout. There may be prosecution under s. 81, for which consent, as required by s. 77, is obtained; there may be an action in the Courts for an injunction and damages; or a cease and desist order may be sought under s. 49 which, in turn, if disobeyed, may lead to prosecution under s. 82.
What is significant about the provision for a cease and desist order obtainable from the Board or, in the construction industry, from the special Panel for that industry, is that it makes allowance for efforts at settlement before or after the making of an interim cease and desist order. The fluidity and the volatility of labour relations issues must be counted as weighing heavily with the Legislature in providing this alternative means of seeking an accommodation between employers and trade unions under the superintendence of the Board or its special division and with the assistance of the Department of Labour, an accommodation that puts to one side the alternative routes of prosecution and Court injunction. The policy considerations are evident, and in pursuit thereof the mechanism of a cease and desist order to restore the lawful status quo ante seems to me to be a rational way of dealing administratively with a rupture of peaceful labour relations.
The Labour Relations Board or the Construction Industry Panel does not approach the issue of a cease and desist order in the same way that a Court approaches the issue of an injunction. Unlike a Court, the Board or Panel makes its own investigation of the issues raised by a complaint and decides for itself on its own findings whether an interim order should issue; and it is required to do so irrespective of any balance of convenience once it is satisfied that there is an unlawful work stoppage. The Board or Panel is involved in continuous supervision directed to achieving a settlement, if it can, and this is something which ordinarily militates against the issue of an injunction by a Court. There are other differences in the respective approaches, such as the absence of any requirement under s. 49 of an undertaking as to damages, and it may be doubted that requirements of full disclosure or clean hands are as compelling under s. 49 as they are where an interim injunction is sought.
The scope of superintendence by the Legislature, through an administrative agency, of the initiation and continuation of collective bargaining relations between employers and trade unions without rupture has been considerably increased, and this monitoring of the quality of those relations has necessitated the introduction of new methods for control and vindication of the policies of the legislation. It has involved the adaptation to the legislative and administrative regime of remedies that in another, more individualistic, context had been evolved and are still being exercised by the ordinary Courts. That, however, does not necessarily make them impermissible for exercise by the administrative agencies as violative of s. 96 of the British North America Act.
In the John East case, it was held that a provincial labour relations board could validly be given power, in the exercise of its authority to deal with unfair labour practices, to order reinstatement of an unlawfully dismissed employee and to order compensation to be made to him for his monetary loss. I do not need to consider that equity did not order specific performance of personal service contracts, but certainly declarations can be made that dismissals are unlawful, and compensation or damages for loss resulting from unlawful dismissal is a traditional remedy in the Courts. Moreover, this Court in International Brotherhood of Electrical Workers v. Winnipeg Builders Exchange[7] supported the grant of an injunction having the effect of requiring employees illegally on strike to return to work. What the John East case shows is that in the particular framework of the legislation there in question there is no invasion of s. 96 in empowering an administrative board to apply remedies which in another context are obtainable from the ordinary courts.
Again in the Tremblay case, this Court upheld the power of the Legislature to empower the administering agency under labour relations legislation to direct the dissolution of an employer-dominated trade union, a power akin to a traditional authority in the ordinary courts to dissolve corporations. The principle upon which the Tremblay case proceeded was that derivable from the John East case, with its emphasis on the character of the Labour Relations Board as a non-legal but specialized agency having a limited, discretionary power to apply remedies to support the precepts of the legislation. I may add that arbitrators have asserted their power, even without express warrant in the collective agreement, to award damages for breach of the agreement against a defaulting party without it being contended that in so doing they would be offending s. 96 of the British North America Act in that they were applying a remedy that was traditionally one applied by Superior, District or County Courts: see Re Polymer Corp.[8]
In my opinion, the same principle applies here in respect of the added power thought necessary to enable the administrative agency to deal with illegal strikes or lockouts by exercising a remedial authority to induce or compel a settlement of the dispute which led to the unlawful activity or peremptorily to bring that activity to an end by an interim cease and desist order. I hold, therefore, as did the Appeal Division of the Nova Scotia Supreme Court, that s. 96 of the British North America Act is not offended by the vesting of such a power in the Labour Relations Board under s. 49 of the Trade Union Act and in the Construction Industry Panel, by derivation, under s. 91(4) of the Act.
I turn now to the administrative law question. The respondent employer lodged a complaint in writing with the Labour Relations Board, entitled “Complaint Concerning a Work Stoppage—Request for a Cease and Desist Order”. It named as respondents the union with which the employer had a collective agreement, the union’s business agent Tomko and employees members of the union who were on strike, allegedly unlawfully since the collective agreement was then in force. The complaint was made under Form 14 in the Regulations made pursuant to the Trade Union Act, and it alleged that a strike had occurred on May 1st as a result of certain disciplinary action taken against some members of the union, that picketing had occurred and that as a result all of the tradesmen represented by a number of unions stayed off work. It asked for “issue [of] an order that the respondents cease and desist from causing, authorizing, participating in or committing a work stoppage, and from picketing and causing other employees of the complainant not to perform their regular work”.
The chief executive officer of the Board, Langlois, received the complaint about 9:30 a.m. on May 7, 1974. He informed the members of the Construction Industry Panel of the complaint by telephone and said he would report back further after making an investigation. Having contacted the manager of the project where the strike was on foot he then telephoned Tomko to inform him of the complaint but apparently without reading the whole document to him. There was a short discussion of what was going on at the site of the strike and whether the men had been directed to return to work. I accept that Tomko was not given any detail of the nature of the formal complaint other than that it had been filed, but his evidence is clear that he knew what it was all about, knew the issue that prompted the complaint and knew that its purpose was to have the Construction Industry Panel bring the strike to an end. Unless therefore, there is an inexorable requirement under the applicable law that he must be given a copy of the formal complaint, in order to make representations thereon, before any action on the complaint may be taken by the Panel, I see no merit in the appellant’s contention that there was in this respect a failure of natural justice. I will return to this point later in these reasons.
After his talk with Tomko, Langlois talked with two other union officials about the strike situation and then, without further communication with Tomko, he contacted the chairman of the Labour Relations Board and reported to him orally on his inquiries, and reported similarly to the two other persons who with the chairman acted as members of the Construction Industry Panel. In the result, the Panel authorized at about 1:30 p.m. of May 7, 1974, the issue of an interim order in the following terms:
(a) Ordered the employees of the Company represented by the Union who have participated in an illegal work stoppage to forthwith cease and desist from participating in the illegal work stoppage;
(b) Ordered the Union and the Appellant to forthwith cease and desist from causing or condoning the illegal work stoppage; and
(c) Ordered the Appellant to direct all employees members of the Union who are participating in the illegal work stoppage to return to work forthwith.
The parties were informed of the order by telegram and a copy of the complaint and of the interim order was mailed to Tomko. It is not alleged that he did not receive them.
On May 10, 1974, Tomko was served with a summons charging him with a failure to comply with the interim order. A few days later Tomko brought certiorari proceedings to have the order quashed and also sought prohibition against a magistrate to enjoin him from hearing the charge of failure to obey the interim order. Both proceedings were, by order of Cowan C.J.T.D., reserved for consideration by the Appeal Division which in a unanimous judgment dismissed both applications. In my opinion, this judgment should be affirmed.
Among the contentions made by counsel for the appellant were the following: (1) Tomko should have had a copy of the complaint before the Panel acted upon it; (2) he should have had a previous opportunity to make representations; (3) the Panel exceeded its jurisdiction in including in the interim order directions for remedial action not sought in the complaint; (4) the so-called investigation by Langlois was not one for him to make but was a duty cast upon the Panel. There was also an allegation of bias against a member of the Panel but this Court did not require the respondents to meet it, holding the allegation to be without substance.
Counsel for the appellant founded himself in respect of his contentions on Regulation 2 as requiring service of the complaint, on s. 15(9) of the Act as obliging the Panel to afford Tomko a previous opportunity to present evidence and make representations, on Regulation 24, Form 14 and s. 49 in objecting to the inclusion of directions in the interim order not requested in the complaint, and again on s. 49 in taking issue with the investigation by Langlois and not by the Panel.
I find it necessary to set out only the terms of s. 15(9)(10) of the Act and to refer again to s. 49(2) which has already been quoted. These provisions read as follows:
15.…
(9) The Board shall determine its own procedure, but shall, subject to subsection (10), in every case give an opportunity to all interested parties to present evidence and make representation.
(10) Upon application for an interim order pursuant to Section 49 or Section 50 and in any case where a hearing is not requested, if the Chairman deems it appropriate, the Board may deal with any matter by each member conferring separately with the Chief Executive Officer and each deciding the matter.
49.…
(2) If the Board is satisfied after investigation of the complaint that Section 48 has not been complied with, the Board, notwithstanding any provision of this Act, may issue an interim order requiring any person named in the order to forthwith cease and desist any activity or action or to perform any act or commence any activity or action stated in the interim order.
I am prepared to agree that s. 15(10) may not have been drafted clearly enough to exclude the application of s. 15(9) to complaints leading to an interim cease and desist order and to the making of such an order ex parte. In my opinion, however, the emergency nature of the proceeding is underlined by the terms of s. 49 which in subs. (4) makes provision for a hearing at the request of a person named in an interim order. Above this, however, there are the key words in s. 49(2) that “notwithstanding any provision of this Act” the Board (or Panel) may issue an interim order if satisfied after investigation of a complaint that s. 48 has not been complied with. This means notwithstanding s. 15(9), and none of the Regulations upon which the appellant relies can supersede this statutory qualification. I have already indicated that Tomko was aware of what the complaint was about and I do not think, in any event, that any tenable objection can be taken to the quality of the investigation in this case. There is, however, the objection to it being conducted by Langlois.
I am unable to agree that an administrative agency which is not clearly charged to conduct an investigation itself cannot do so through its officers, especially where it is being asked to exercise an emergency authority to make an interim order. I think that when s. 49(2) is read together with s. 15(10) and s. 91(9) which enables the Board or Panel members to confer separately with the chief executive officer and each to come to a decision on the issue of an interim order, there can be little doubt that a permissible procedure was followed. The Panel was therefore fully entitled to have Langlois investigate and report to it before making the interim order herein.
There remains only the question whether the terms of the order must be limited to the exact request for relief sought in the complaint. There is no such limitation in s. 49(2) which empowers the Board (or the Panel) to direct an interim order to “any person” and against “any activity or action”. Indeed, having regard to the purpose of the authority, it could not be otherwise so long, at least, as the activity or action whose cessation is directed by the interim order or is required thereunder is related to or connected with the illegal work stoppage. That was certainly the case here; the terms of the interim order concern only those involved in the work stoppage and are limited to action to bring it to an end.
The appellant fails on both the questions on which this appeal has proceeded and I would dismiss it with costs. There will be no order as to costs to or against any of the intervenors.
DE GRANDPRÉ J. (dissenting)—Since the judgment a quo is reported in (1975), 9 N.S.R. (2d) 277 there is no need for me to relate the facts or summarize the views of the Appeal Division of the Supreme Court of Nova Scotia, except where necessary for a proper understanding of my reasoning. As appears from the judgment, in the Court of Appeal the appellant put forward three arguments, which were again submitted to this Court. Since, in my opinion, appellant must succeed on the constitutional question, I shall not examine his other two arguments.
By an order of October 10, 1974, the constitutional question was defined as follows:
Whether Section 49 of the Trade Union Act of Nova Scotia is ultra vires of the Legislature of Nova Scotia because it purports to confer on the Construction Industry Panel of the Labour Relations Board (Nova Scotia) judicial powers and functions which under Section 96 of the British North America Act can only be exercised by and conferred upon a Court whose members are appointed by the Governor General in Council. The Chief Justice of Nova Scotia, speaking for the Court of Appeal, approached the issue from two aspects (p. 287, par. 21):
(1) as an institution, is the Board a tribunal “endowed with jurisdiction conforming broadly to the type of that exercised in 1867 by the courts mentioned in the section (96) or tribunal analogous to them?”
(2) if the institution itself is not such a tribunal, “is the particular function in question a power or function (and I prefer the word ‘function’) of the type which belongs to a s. 96 Court?”
To answer these questions the Court of Appeal relied, inter alia, on the Privy Council decision in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.[9], and on the decision of this Court in Tremblay v. La Commission des Relations de Travail du Québec[10].
The Court of Appeal answered the first question as follows (p. 291, par. 27):
Obviously, the jurisdiction conferred on the Board does not ‘broadly conform to the type of jurisdiction exercised by the Superior, District or County Courts’.
Turning to the second question, the Court accepts, for the purposes of its decision, that a cease and desist order is in substance similar to an injunction in the matter of labour law (p. 292, par. 32). It then adds that if today an injunction in such matters is a procedure to which the parties regularly have recourse in the superior courts, this was not the case in 1867. Hence it concludes:
It requires a further leap in logic to find that the courts in 1867 had jurisdiction in such matters, a leap which I fear fails.
The Court clarifies its opinion by pointing out that, at the time of Confederation, unions were illegal organizations and an injunction of the modern sort was unheard of in cases of labour conflicts.
For these reasons, of which I have given a general outline, the Court of Appeal concluded that the constitutional argument was unfounded and had to fail. Having already expressed my disagreement with this conclusion, I shall now explain it.
My disagreement with the decision of the Court of Appeal does not rest on the first aspect of its analysis. As an institution, the Labour Relations Board of Nova Scotia is not a tribunal that corresponds to the description of those mentioned in s. 96 of the Constitution. However, the question that has been referred to this Court is not really concerned with this general aspect; appellant is only challenging s. 49 of the Act. We must therefore examine the function conferred on the Board by this section. This function must clearly be assessed within its own institutional framework. Accordingly, we must consider the second question dealt with by the Court of Appeal.
On this point my views are as follows:
(a) the power vested in the Board under s. 49 to issue an order to cease and desist is in substance a power to issue an injunction;
(b) such a power, by its nature, is vested in the superior courts referred to in s. 96 and may not be conferred on a body the members of which are not appointed in the manner provided in that section, even though the particular type of injunction, in this case an injunction in labour law,