Syndicat des employés de production du Québec v. CLRB

Syndicat des employés de production du Québec v. CLRB
Collection
Supreme Court Judgments
Date
1984-11-22
Report
[1984] 2 SCR 412
Case number
16613
Judges
Laskin, Bora; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 16613
Decision Content
SUPREME COURT OF CANADA
Syndicat des employés de production du Québec v. CLRB, [1984] 2 S.C.R. 412
Date: 1984-11-22
Syndicat des employés de production du Québec et de l'Acadie Appellant;
and
Canada Labour Relations Board Respondent;
and
Canadian Broadcasting Corporation Respondent;
and
Roger Cuerrier et al. Mis en cause;
and
Deputy Attorney General of Canada, Department of Justice Mis en cause.
and between
Canada Labour Relations Board Appellant;
and
Syndicat des employés de production du Québec et de I'Acadie Respondent;
and
Canadian Broadcasting Corporation Respondent;
and
Roger Cuerrier et al. Mis en cause;
and
Deputy Attorney General of Canada, Department of Justice Mis en cause.
File No.: 16613.
1983: February 1, 2; 1984: November 22.
Present: Laskin C.J. * and Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour relations — Strike — Concerted refusal of employees to work overtime — Declaration that strike unlawful and prohibition of strike — Whether Canada Labour Relations Board exceeded its jurisdiction —
[page 413]
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 107 (ad. 1972 (Can.), c. 18, s. 1), 182 (ad. 1972 (Can.), c. 18, s. 1; rep. and repl. 1977-78 (Can.), c. 27, s. 64).
Labour relations — Unlawful strike — Special remedy — Order to parties to refer matter of overtime to arbitration — Remedy not authorized by Canada Labour Code — Remedy set aside — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(p) and 121 (ad. 1972 (Can.), c. 18, s. 1), 182 and 183 (ad. 1972 (Can.), c. 18, s. 1; rep. and rep/. 1977-78 (Can.), c. 27, s. 64), 183.1 (ad. 1977-78 (Can.), c. 27, s. 64), 189 (ad. 1972 (Can.), c. 18, s. 1; am. 1977-78 (Can.), c. 27, s. 68).
Judicial review — Order of Canada Labour Relations Board — Remedy not authorized by Code — Jurisdictional error at conclusion of hearing — Error within s. 28(1)(a) of Federal Court Act — Patently unreasonable error rule not applicable — Canada Labour Code, R.S.C. 1970, c. L-1, s. 122 (ad. 1972 (Can.), c. 18, s. 1; rep. and repl. 1977-78 (Can.), c. 27, s. 43) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).
After hearing the application made by the CBC pursuant to s. 182 of the Canada Labour Code, the Canada Labour Relations Board first found that the concerted refusal by production employees of the CBC to work overtime constituted an unlawful strike within the meaning of the Code, and second, ordered the Union and the CBC to submit the problem of overtime to arbitration. Arguing that the Board had exceeded its jurisdiction in both cases, the Union filed in the Federal Court of Appeal an application to review and set aside based on s. 28(1)(a) of the Federal Court Act. This application was allowed in part. The Court affirmed the first part of the order but set aside the second, finding that the Board had no jurisdiction to order the parties to refer the question of overtime to arbitration. The Union and the Board appealed from this decision. The present appeals are to determine whether the Board exceeded its jurisdiction, first, by finding that the refusal to do overtime constituted a strike, and second, by ordering the parties to submit the question of overtime to arbitration.
Held: The appeals should be dismissed.
[page 414]
The Canada Labour Relations Board did not exceed its jurisdiction in finding that the collective ban on overtime constituted an unlawful strike within the meaning of the Code. It is wrong to suggest that in making this decision the Board committed a jurisdictional error on a preliminary matter fundamental to the exercise of its jurisdiction. The question of whether there is a strike is not a preliminary one: it is an integral part of the problem which the Board alone is responsible for settling. The wording of s. 182 does not justify separating it so as to place the question of the existence of a strike and of its legality on different levels. The Board clearly had jurisdiction under that section to resolve this matter, and its decision, based on abundant earlier authority, does not seem to be so patently unreasonable that its construction cannot be supported by the relevant legislation and demands intervention by the Court upon review.
However, the Board exceeded its jurisdiction by ordering the parties to refer the problem of overtime to arbitration. Sections 182, 183.l, 121 and 118(p) of the Canada Labour Code, taken together or in isolation, do not give the Board the power to make such an order. The Board erred in interpreting the provisions conferring jurisdiction and exercised a power which is not within those conferred upon it. Such an error falls within the scope of s. 28(1)(a) of the Federal Court Act and is subject to having the decision containing it set aside. That section does not distinguish between types of excess of power, the stages of the hearing at which they occur and the circumstances causing them. It applies to any excess of power.
There is also no basis for considering, in connection with this part of the order, whether the Board's decision is based on a reasonable interpretation of the Act. The patently unreasonable interpretation rule applies only to errors which an administrative tribunal may have made in deciding a question considered as falling within the limits of its jurisdiction. The rule does not apply to a jurisdictional error.
Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, applied; National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, considered; Teamsters Union, Local 938 v. Massicotte, [1982] 1 S.C.R. 710; Blanco v. Rental Commission, [1980] 2 S.C.R. 827;
[page 415]
C.L.R.B. v. Halifax Longshoremen's Association, [1983] 1 S.C.R. 245; Alberta Union of Provincial Employees v. Board of Governors of Olds College, [1982] 1 S.C.R. 923; St. Luc Hospital v. Lafrance, [1982] 1 S.C.R. 974; Bibeault v. McCaffrey, [1984] 1 S.C.R. 176; Komo Construction Inc. v. Commission des relations de travail du Québec, [1968] S.C.R. 172; Weyerhaeuser Canada Ltd. and Pulp, Paper, Woodworkers of Canada, Local 10, [1976] 2 Can LRBR 41; MacMillan Bloedel (Alberni) Ltd. v. International Woodworkers of America, Local 1-85 (1969), 71 W.W.R. 561 (S.C.); (1970), 73 W.W.R. 584 (C.A.); National Harbours Board and The Officers of the Respondent Union and the Employee Members of the Union, [1979] 3 Can LRBR 502, referred to.
APPEALS from a judgment of the Federal Court of Appeal, [1982] 1 F.C. 471, which set aside in part an order of the Canada Labour Relations Board (1980), 40 di 35, [1981] 2 Can LRBR 52. Appeals dismissed.
Ian Scott, Q.C., and Louis LeBel, for the Canada Labour Relations Board.
Michel Robert, for the Syndicat des employés de production du Québec et de l'Acadie.
Roy L. Heenan, for the Canadian Broadcasting Corporation.
English version of the judgment of the Court delivered by
BEETZ J.—
I—Proceedings and facts
The two appeals, that of the Syndicat des employés de production du Québec et de l'Acadie (the "Syndicat") and that of the Canada Labour Relations Board (the "Board"), are from a decision of the Federal Court of Appeal dismissing in part and allowing in part an application by the Syndicat to review and set aside an order made by the Board. This order allowed an application by the Canadian Broadcasting Corporation (the "CBC") for a declaration of an unlawful strike, and prohibition of the strike, based on s. 182 of the Canada Labour Code, R.S.C. 1970, c. L-1 (the "Code"). The application to review and set aside made by the Syndicat was based on s. 122(1) of
[page 416]
the Code and s. 28(1)(a) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
The decision of the Federal Court of Appeal was published sub nom. Syndicat des employés de production du Québec et de l'Acadie v. C.L.R.B., [1982] 1 F.C. 471. It was heard by Pratte and Le Dain JJ. and Hyde D.J. The unanimous reasons of the Court were rendered by Pratte J. who described the facts at pp. 472-74:
On November 30, 1979 the Board received an application made by the Canadian Broadcasting Corporation pursuant to section 182 of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended. The Corporation alleged that its production employees in Montreal, Quebec and Moncton were participating in an unlawful strike authorized by applicant Union by refusing, at the behest of the Union, to do overtime; it asked the Board to rule that this concerted refusal to do overtime constituted an unlawful strike and order the Union to revoke its decision to authorize this strike and to inform employees thereof forthwith, and prohibit the employees in question from proceeding with the strike. The Board held an inquiry and heard the parties. It found that, pursuant to section 180 of the Canada Labour Code, the employees in question were not authorized to strike, that the Union had in fact given these employees an instruction to refuse to do overtime, and further that this instruction was more fully complied with by employees in Moncton and Quebec City than in Montreal; finally, it found that the Union had given this instruction as a means of inducing the Corporation to recognize that, under the collective agreement in effect, it did not have a right to require its employees to do overtime. On December 5, 1979, the Board allowed the application of the Canadian Broadcasting Corporation; its decision is contained in paragraphs 3 and 4 of the order it made on that day:
3. Moreover, the ban on overtime constitutes an unlawful strike within the meaning of the Code and the Board so declares.
However, the Board has decided in the present circumstances and for the time being, to exercise its discretion and not issue an order in this regard with respect to the Corporation's employees in Montreal, but hereby orders that the said ban be ended immediately in Moncton and Quebec City, that all employees in the bargaining unit and the respondent union in these two locations comply with this order immediately,
[page 417]
as well, the respondent union shall give notice of this order to all its members immediately;
4. The two parties, namely, the respondent union and the Canadian Broadcasting Corporation, French Services Division, are ordered to immediately submit the problem of whether or not overtime is voluntary according to the provisions of the collective agreement now in force, to an arbitrator appointed pursuant to the provisions of section 155(2)(c) and/or (d) of the Canada Labour Code, by means of one of the grievances which is now pending and which deals with this question. The arbitrator shall give priority to this matter in accordance with the expedited arbitration procedure, and his decision should resolve this problem until the signing of a collective agreement which will replace the present one, which may contain different provisions on this subject.
As Pratte J. noted, the first two paragraphs of the order made by the Board allowed another application made by the CBC concurrently regarding another group of employees. These first two paragraphs are not at issue.
The Federal Court of Appeal dismissed the application to review and set aside paragraph 3 of the order made by the Board, but it allowed the application in respect of paragraph 4 of the order, and set aside this paragraph, which it considered was beyond the jurisdiction of the Board.
In its appeal, the Syndicat is asking this Court to reverse the part of the decision of the Federal Court of Appeal dismissing its application to review and set aside paragraph 3 of the order made by the Board; it also opposes the latter's appeal, and asks the Court to affirm the part of the Court of Appeal decision setting aside paragraph 4 of the order.
The Board takes the converse position. It defends its jurisdiction, asks the Court in its appeal to reverse the part of the Federal Court of Appeal judgment setting aside paragraph 4 of its order, opposes the appeal by the Syndicat, and asks the Court to affirm the part of the Court of Appeal decision dismissing the application to review and set aside paragraph 3.
[page 418]
For its part, the CBC filed a submission opposing the appeal of the Syndicat.
The other parties were not represented at the hearing.
II—Legislation
The principal provisions setting out the Board's jurisdiction in the case at bar are contained in ss. 182 and 183.1 of the Code:
182. Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order
(a) requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the strike;
(c) requiring any employee who is participating in the strike to perform the duties of his employment; and
(d) requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies.
183.1 (1) An order made under section 182 or 183
(a) shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case; and
(b) subject to subsection (2), shall have effect for such time as is specified in the order.
(2) Where the Board makes an order under section 182 or 183, the Board may, from time to time on application by the employer or trade union that requested the order or any employer, trade union, employee or other person affected thereby, notice of which application has been given to the parties named in the order, by supplementary order
[page 419]
(a) continue the order, with or without modification, for such period as is stated in the supplementary order; or
(b) revoke the order.
Reference was also made to ss. 118(p) and 121:
118. The Board has, in relation to any proceeding before it, power
[…]
(p) to decide for all purposes of this Part any question that may arise in the proceeding ...
121. The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by, or as may be incidental to the attainment of the objects of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Part, with any regulation made under this Part or with any decision made in respect of a matter before the Board.
However, reference should also be made to s. 122(1) of the Code and s. 28(1)(a) of the Federal Court Act.
122. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with section 28(1)(a) of the Federal Court Act.
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or other tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
It should be recalled that privative clauses like those resulting from the combined effect of these last two provisions do not confer a right of appeal. They do not empower the court undertaking the review to make the decision which an administrative tribunal like the Board should have made,
[page 420]
though they allow it to indicate in some cases what it should have done and to refer the case back to it for action accordingly. They do not even empower the court to set aside the decision of an administrative tribunal because of a mere error of law. If the Board commits such an error, its decision remains unassailable.
A mere error of law is an error committed by an administrative tribunal in good faith in interpreting or applying a provision of its enabling Act, of another Act, or of an agreement or other document which it has to interpret and apply within the limits of its jurisdiction.
A mere error of law is to be distinguished from one resulting from a patently unreasonable interpretation of a provision which an administrative tribunal is required to apply within the limits of its jurisdiction. This kind of error amounts to a fraud on the law or a deliberate refusal to comply with it. As Dickson J. (as he then was) described it, speaking for the whole Court in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227 at p. 237, it is
... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review ...
An error of this kind is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice. Such an error falls within the scope of s. 28(1)(a) of the Federal Court Act, and is subject to having the decision containing it set aside.
A mere error of law should also be distinguished from a jurisdictional error. This relates generally to a provision which confers jurisdiction, that is, one which describes, lists and limits the powers of an administrative tribunal, or which is [TRANSLATION] "intended to circumscribe the authority" of that tribunal, as Pigeon J. said in Komo Construction Inc. v. Commission des relations de travail du Québec, [1968] S.C.R. 172 at p. 175. A jurisdictional error results generally in an excess of jurisdiction or a refusal to exercise jurisdiction,
[page 421]
whether at the start of the hearing, during it, in the findings or in the order disposing of the matter. Such an error, even if committed in the best possible good faith, will result nonetheless in the decision containing it being set aside, because it also falls within s. 28(1)(a) of the Federal Court Act.
Another error which has sometimes been regarded as jurisdictional is one relating to a matter which is preliminary or collateral, but supposedly essential to the exercise of the jurisdiction as a kind of condition thereof. This however is a fleeting and vague concept against which the courts were warned by this Court in New Brunswick Liquor Corporation (supra), at p. 233, once the initial jurisdiction of the administrative body holding the hearing has been established at the outset.
III—Appeal by the Syndicat
In view of the limitations imposed on the review power of the Federal Court of Appeal by s. 28(1)(a) of the Federal Court Act, the principal argument of the Syndicat is the jurisdictional error which it said the Board committed in deciding that the ban on overtime constituted a strike. In its submission, it said:
[TRANSLATION] The Federal Court of Appeal, by refusing to set aside the order contained in paragraph 3, erred in law in that the Board, when it ruled that the refusal to do overtime, which was in fact optional, constituted a strike, committed an error of law and of fact on an essential matter on which the exercise of its jurisdiction under s. 182 of the Canada Labour Code depended, namely the existence of a strike at the CBC.
[…]
Section 182 of the Canada Labour Code confers on the Board the power to declare whether a strike "was, is or would be unlawful" and the power to make the orders mentioned in paras. (a), (b), (c) and (d) of the said section. The Board's power is thus concerned essentially with the legality of the strike.
However, there must be a strike in progress within the meaning of s. 107(l) of the Canada Labour Code. The existence of a strike, a mixed question of law and fact, is a preliminary, fundamental and collateral condition for
[page 422]
the exercise of the Board's jurisdiction over the declaration of illegality mentioned in s. 182 of the said Code, otherwise no order can be made under that section.
For the Board to have jurisdiction to make an order under s. 182 of the Canada Labour Code, there must first have been a strike, giving the Board the jurisdiction that enables it to make such an order, or it will lose its jurisdiction to do so. The existence of a strike is thus a prerequisite to the existence of the Board's jurisdiction to make an order under s. 182 of the said Code.
The Syndicat alleged alternatively that, by deciding that the concerted refusal to do optional overtime constituted a strike within the meaning of s. 107 the Board committed
[TRANSLATION] . . . at least ... a patently unreasonable error of law depriving it of all jurisdiction and forming a basis for judicial review.
In my opinion the Court cannot accept the Syndicat's main submission, namely that the Board's jurisdiction is concerned essentially with the legality of a strike, a question on which it could be in error without the validity of its decision being affected thereby, but depends on the existence of a strike, another matter which it must deal with without being in error, otherwise it will be acting beyond its jurisdiction. By this arbitrary division of the Board's powers, not justified either by the wording of s. 182 of the Code or by principle, the Syndicat is artificially introducing into the discussion the very concept of an error on a preliminary matter essential to the exercise of the jurisdiction which this Court sought to avoid in New Brunswick Liquor Corporation (supra).
According to the actual wording of s. 182 of the Code, the Board has jurisdiction when it has before it an application by the employer on a twofold basis: first, "that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike"; and second, "the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part". When it has such an application before it, the Board must of necessity rule on each of the two claims, and make the declaration requested if
[page 423]
it is of the opinion that the two claims are valid. It may also make the other orders mentioned in s. 182. The question of whether there is a strike is not a preliminary one: it is an integral part of the principal problem which the Board alone is responsible for settling, as to whether there was an unlawful strike.
As counsel for the Board correctly argued in their submission:
[TRANSLATION] The proper jurisdiction of the Board, when it has before it an application under s. 182, consists in determining whether the situation alleged by the employer constitutes an unlawful cessation of work within the meaning of the Canada Labour Code. Even in the narrowest interpretation of the Board's duties under s. 182, the role given to the Board is to determine whether the situation of fact alleged by the employer and established by the evidence presented before the Board does in fact constitute a strike. It is for the Board and for no other body to determine whether there is an unlawful strike.
I would add that both the question of the existence of a strike and of its legality belong to this category of questions which falls within the special expertise of the Board, and there is no theoretical or practical reason to separate them by placing them on different levels—quite the contrary. In order to answer these questions, the Board must investigate the facts and interpret the statutory definition of a strike contained in s. 107(1) of the Code:
"strike" includes
(a) a cessation of work or a refusal to work or to continue to work by employees, in combination or in concert or in accordance with a common understanding, and
(b) a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;
The Board is also required to interpret s. 180 of the Code, which prescribes the conditions on which strikes and lockouts will be legal. These provisions do not confer jurisdiction, and the Board must interpret them within the limits of the exclusive jurisdiction conferred on it by s. 182. The latter section does confer jurisdiction, but the so-called jurisdictional error which the Syndicat alleges the
[page 424]
Board made in the first of these two appeals does not relate to this section.
The alternative argument made by the Syndicat, namely the patently unreasonable nature of the Board's decision, also appears to me to be without foundation.
In finding that the collective ban on overtime was a strike, the Board relied on what it described as uniform earlier authority, described by the Federal Court of Appeal as abundant, to the effect that the right of employees to individually refuse to do overtime, when such a right exists, does not preclude a conclusion that there is a strike within the meaning of s. 107(1) of the Code when that right is exercised by employees in a collective, concerted and systematic way. See, for example, Weyerhaeuser Canada Ltd. and Pulp, Paper Woodworkers of Canada, Local 10, [1976] 2 Can LRBR 41; National Harbours Board and The Officers of the Respondent Union and the Employee Members of the Union, [1979] 3 Can LRBR 502; MacMillan Bloedel (Alberni) Ltd. v. International Woodworkers of America, Local 1-85 (1969), 71 W.W.R. 561 (B.C.S.C.); (1970), 73 W.W.R. 584 (B.C.C.A.)
I do not think it is possible to argue that this decision is
... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review …
Finally, the Syndicat alleged that the Board had not itself decided whether the overtime was individually optional under the collective agreement, and in light of certain provisions of the Code such as ss. 29, 29.1, 30, 31, 32 and 33 regarding hours of work.
These provisions do not confer jurisdiction either, and the Board would not have exceeded its jurisdiction even if it had erred in interpreting them. It is true that the Board did not undertake to interpret them: however, s. 182 of the Code does not in any way require the Board to decide such a question. Moreover, in making the decision it made in paragraph 3 of its order, the Board
[page 425]
assumed that the overtime was individually optional, as the Syndicat argued. The latter cannot expect more than that.
On the appeal of the Syndicat as a whole, I am entirely in agreement with the reasons of the Federal Court of Appeal at pp. 474-75:
In its application the Canadian Broadcasting Corporation asked the Board to exercise the authority conferred upon it by section 182. In exercising that authority, the Board had to hear the application and decide whether it should be allowed. Among other questions, the Board had to decide whether the concerted refusal of the employees to do overtime constituted a strike within the meaning of the Act. It was for the Board to answer this question, and in doing so, it remained within the limits of its jurisdiction unless its reply was based on a manifestly unreasonable interpretation of the Act. In deciding that the refusal to do overtime constituted a strike, the Board relied on a large number of precedents; I think it is clear that its decision cannot be said to be manifestly incorrect or based on an unreasonable interpretation of the Act. It follows that, even if the Board was mistaken on this point, it did not on that account cease to have jurisdiction over the matter.
I would dismiss the appeal of the Syndicat with costs in favour of the Board and the CBC.
IV—Appeal by the Board
This appeal relates to paragraph 4 of the order made by the Board, which was set aside by the Federal Court of Appeal.
1. Reasons of the Board
In its reasons, 40 di 35, the Board mentions the circumstances which led it to make this part of its order, the problems which it sought to remedy by this means and the provisions and principles which in its opinion gave it the power to make this kind of decision (at p. 39):
The ban on overtime stems from a series of grievances filed under the provisions of the collective agreement between C.U.P.E. and the Corporation, in force from 1973 to 1975. The relevant section of this collective agreement, Article 30, has not changed significantly over the years.
After citing article 30 of the collective agreement, the Board continued:
[page 426]
The issue between the parties is whether overtime is voluntary on the part of an employee or can be required of him by the employer. The union contends that under the collective agreement, an employee has the right to refuse to work overtime. As might be expected, the employer has argued the opposite position.
What is the background to this dispute? It is appropriate to consider this question because it will enable us to determine the root cause of the dispute between the Corporation and the union.
The Board then related how the contradictory opinions expressed by judges and arbitrators had fuelled the dispute, by finding sometimes in favour first of the Syndicat and sometimes of the CBC on the object of their dispute. In October 1975, the Superior Court enjoined the Syndicat to cease supporting the refusal to work, but expressly exempted overtime from the injunction order. The CBC nevertheless imposed disciplinary penalties on several employees who refused to work overtime, and they filed grievances against these penalties. In 1978, these grievances were allowed by Mr. Justice André Montpetit, acting as an arbitrator. In finding that overtime is individually optional, Mr. Justice Montpetit relied on his interpretation of ss. 29 and 30 of the Code regarding hours of work. The CBC attempted unsuccessfully to evoke this arbitral award to the Superior Court: Beauregard J., as he then was, dismissed the application for evocation because in his opinion Mr. Justice André Montpetit had acted within the limits of his jurisdiction. In a long obiter dictum, however, he expressed the opinion that the interpretation placed on ss. 29 and 30 of the Code by Mr. Justice André Montpetit was nevertheless wrong.
The Board wrote (at p. 41):
The parties have been bombarding each other ever since.
A series of grievances arising from the refusal to work overtime were presented in the meantime, and despite the decision by Judge Montpetit and the legal proceedings before the regular courts, the parties failed to settle their dispute concerning the interpretation of article 30 of the collective agreement. This guerilla warfare has been going on for the last six years.
[page 427]
It is interesting to note that during the difficult negotiations presently underway, as well as during the conciliation proceedings, the parties have yet to settle the overtime question. However, it should be pointed out that the union is demanding a clarification of the text which would of course, make the performance of overtime voluntary for the employees whom it represents. The Corporation has thus far refused to agree to this demand.
The Board then analysed the evidence and the law, concluding that the ban on overtime constituted an unlawful strike and finding that it could apply s. 182 of the Code. The Board went on (at pp. 46 et seq.):
However, as the Board explained in several earlier decisions, most notably National Harbours Board, 33 di 530; [1979] 3 Can LRBR 502; 79 CLLC ¶ 16,204; work stoppages during the term of a collective agreement are in general regarded as symptomatic of deep-seated problems between the parties, which cause a flare-up of hostility between them outside the normal framework of the labour relations system sanctioned by the Code. In such a context, this Board is aware the mere exercise of the considerable powers conferred on it by sections 182 and 183 of the Code is not necessarily the appropriate response to a violation of article 180.
[…]
Section 182 of the Code gives the Board the authority to declare a strike unlawful and to order the employees who are members of a union to return to work. However, the Code also recognizes that the circumstances surrounding an illegal work stoppage may vary from case to case. Section 183.1(1) stipulates that the Board's response to an unlawful strike or lockout should be based on the specific context in which the work stoppage occurs.
[…]
The Board is thus empowered through discretionary authority given it by sections 182, 183 and 183.1(1), to fashion remedies appropriate to the situation with which it is confronted.
[…]
Matters are complicated, as we have seen, by the fact that all the arbitration and court proceedings have not produced a clear interpretation of the provisions dealing with overtime, namely, article 30 of the collective agreement.
[page 428]
While it is clear that overtime is a subject of the current negotiations, considering the accumulation of related grievances, the appropriate resolution of the matter would seem to us to be to bring it before an arbitrator who would determine clearly if in fact overtime, according to the terms of the existing collective agreement, is voluntary on the part of each employee. This should be done concurrently with the continuation and completion of the current round of collective bargaining. It would have the beneficial effect of settling the problem temporarily, even if one or the other of the two parties eventually resorts to economic pressure, that is, to a legal work stoppage, to apply leverage in order to change a situation which, it feels, is unfavourable as a result of the arbitration and which could not be settled by negotiation.
During the public hearings held in connection with the Board's inquiry into this case, repeated adjournments were ordered to enable the Board to explore in-camera directly with the parties, possibilities of a solution to this thorny problem. Among others, a suggestion was made to the parties that they proceed to expedited arbitration in order to deal with this part of the problem and to settle it, at least temporarily, until a new collective agreement is signed, or until such time as one of the parties deems it advisable to exercise its right to declare a strike or lockout. The suggestion was rejected.
[…]
It is in the light of these facts that the Board analysed both the underlying source of the dispute over the overtime ban and the kind of remedy which could effectively re-establish the balance of forces at a critical point in negotiations for the renewal of the collective agreement, and at the same time ensure compliance with the essential provisions of the Code.
The Board announced that it would render the decision contained in paragraph 3 of its decision. It then concluded:
In addition, in an effort to improve the general climate of labour relations between the parties, and under the powers conferred on it under sections 182 and 183.1 of the Code, the Board orders the parties to submit the question of whether or not overtime is voluntary to an arbitrator who will proceed in accordance with the now familiar process of expedited arbitration. This should clarify the situation until the collective agreement is renewed, with or without a legal work stoppage.
[page 429]
2. Reasons of the Federal Court of Appeal
Pratte J. observed (at p. 476), regarding ss. 182 and 183.1(1)(a) of the Code, given by the Board as the basis for its decision in paragraph 4 of its order:
I think it is clear that the order requiring the problem of overtime to be referred to arbitration is not one which is authorized by section 182. This can readily be seen from reading paragraphs (a), (b), (c) and (d) of that section. The order also does not appear to be authorized by section 183.l. The only part of that section which is relevant to this issue is paragraph 183.1(1)(a). In my view, this provision does not enable the Board to make any orders other than those provided for in sections 182 and 183; it only empowers the Board to attach the conditions which it considers appropriate to the orders which it makes under those sections. I therefore conclude that neither section 182 nor section 183.l gave the Board the power to make the order contained in paragraph 4 of its decision.
The Board did not refer to s. 118(p) or to s. 121 of the Code in its reasons; but its counsel cited s. 121 both in the Federal Court of Appeal and in this Court, and they referred to s. 118(p) in this Court. Pratte J. commented on the scope of s. 121, at p. 476-77:
Counsel for the Board and the Canadian Broadcasting Corporation argued that this section authorized the Board to make the decision at issue. This decision was clearly made because the Board felt it was necessary in order to re-establish good relations between the Canadian Broadcasting Corporation and its employees. It was argued that as the establishment of good industrial relations is one of the purposes of Part V of the Code, and as section 121 confers on the Board all the powers necessary to carry out these purposes, it follows that this section empowered the Board to make the decision at issue. I cannot agree with this argument. If section 121 were given such a scope, the many provisions of the Act that specify the Board's powers would be rendered useless. ln my view, the scope of section 121 is more modest. I consider that at the outside this section relates only to the powers necessary to perform the duties expressly imposed by the Act on the Board; however, as I understand it the Act does not impose on the Board a duty to resolve labour disputes which may be the cause of strikes.
[page 430]
3. Arguments made by the Board
The arguments made by counsel for the Board may be stated in three propositions.
First proposition: it is not the Board but the Federal Court of Appeal which erred in its unduly restrictive interpretation of the applicable provisions.
Second proposition: the error committed by the Board, if any, was not a jurisdictional error.
Third proposition: the decision set aside by the Federal Court of Appeal is neither unreasonable nor based on a patently unreasonable interpretation of the Board's powers.
First proposition
Counsel for the Board conceded that the power claimed by the latter to refer to arbitration is not expressly conferred on it by any of the particular provisions relied upon them. However, in their submission these provisions taken as a whole and given a liberal interpretation, in light of the objects of Part V of the Code referred to in s. 121, enable the Board to adapt the orders which it makes under ss. 182 and 183.1(1)(a) to the circumstances of each case, not only so as to put an end to labour disputes but to remedy their causes and prevent their recurrence. After citing s. 121, counsel for the Board wrote in their submission:
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