Jarvis v. Associated Medical Services Inc.

Jarvis v. Associated Medical Services Inc.
Collection
Supreme Court Judgments
Date
1964-03-23
Report
[1964] SCR 497
Judges
Taschereau, Robert; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett
On appeal from
Ontario
Subjects
Labour law
Decision Content
Supreme Court of Canada
Jarvis v. Associated Medical Services Inc., [1964] S.C.R. 497
Date: 1964-03-23
Mrs. Barbara Jarvis (Respondents) Appellant;
and
Associated Medical Services, Incorporated (Applicant) Respondents;
and
The Ontario Labour Relations Board, A.M. Brunskill (Respondents) Respondent.
1963: November 5; 1964: March 23.
Present: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Labour—Certiorari—Discharge for union activity—Reinstatement of complainant ordered by Labour Relations Board—Finding that complainant exercised managerial functions—Whether “person” within protection of s. 65 of Labour Relations Act—Whether Board had jurisdiction to order reinstatement—The Labour Relations Act, R.S.O. 1960, c. 202, ss. 1(3)(b), 50, 65, 80.
On the hearing of a complaint of the appellant made as to a breach by the respondent of the provisions of s. 50 of the Ontario Labour Relations Act, the Labour Relations Board found that the complainant had been dismissed for union activity, that she was a member of the Office Employees International Union, Local 131, to the knowledge of the managing director of the respondent, that the union activity for which she was dismissed did not conflict with her duty to her employer, and that although her duties were managerial in nature and she was therefore a person deemed not be an employee as denned by s. 1(3)(b) of the Act, nevertheless, she was a person entitled to the rights given under s. 65 of the Act. The Board ordered that she be reinstated in her employment. A motion to quash the order having been dismissed, the employer appealed. The Court of Appeal in allowing the appeal held that because the complainant exercised managerial functions, she was not a “person” within the protection of s. 65 of the Act and that in her case the Board had no jurisdiction.
Held (Abbott, Judson and Spence JJ., dissenting): The appeal should be dismissed.
Per Taschereau C.J. and Cartwright, Fauteux, Martland, Ritchie and Hall JJ.:
The appeal could succeed only if the Act could be construed as giving the Board power, in appropriate circumstances, to compel the continuation of the employment not only of all persons who were “employees” within the meaning of that term as defined in the Act but also of all persons exercising managerial functions. Such a construction would be at variance with the purposes which appeared from reading the Act as a whole, and would involve giving a forced meaning to the words which the Legislature had employed. The Board having found that the appellant was not an “employee” within the meaning of the Act at any time material to the application, it followed that the rights accorded to “any employee” under s. 65(5) were denied to her, so that if this Court were to restore the order of the Board it would be restoring an order which could not be enforced by the appellant in the manner provided by s. 65(5) for the enforcement of such a determination. It was unreasonable to suppose the Legislature to have intended that the benefits conferred by s. 65(4) were to be enjoyed by a class of persons who were plainly excluded from the right to enforce those benefits in accordance with s. 65(5), and when s. 65 was read against the background of the Act as a whole, it was apparent that the provisions of subs. (4) did not clothe the Board with any authority or jurisdiction to reinstate a person such as the appellant, who the Board itself had found had been exercising “managerial functions” and who was thus not an “employee” within the meaning of s. 65(5) or any other section of the Act.
Section 80 of the Act did not prevent the quashing of the decision of the Board. The effect of this section, if it received the construction most favourable to the appellant, was to oust the jurisdiction of the superior Courts to interfere with any decision of the Board which was made in exercise of the powers conferred upon it by the Legislature; within the ambit of those powers it might err in fact or in law; but the section did not mean that if the Board purported to make an order which, on the true construction of the Act, it had no jurisdiction to make the person affected thereby was left without a remedy. The extent of the Board’s jurisdiction was fixed by the statute which created it and could not be enlarged by a mistaken view entertained by the Board as to the meaning of that statute.
Per Abbott and Judson JJ., dissenting: There was error in the judgment of the Court of Appeal in its restriction of the rights conferred under the Act to those who were employees within the meaning of the Act. The term “person” as used in ss. 50 and 65 included one who exercised managerial functions. The appellant was a person within the meaning of s. 50(a) and was entitled to its protection. Likewise, the appellant was a person whom the Board could order to be reinstated in employment pursuant to the provisions of s. 65(4).
As to the matter of certiorari, the Board’s right to entertain the application was unquestionable. It related to the subject-matter which was given to the Board for decision, and its decision was reasonably capable of reference to the power given to it. Section 80 prevented a decision of this kind from being quashed on certiorari because the reviewing tribunal may choose to call what it finds to be error a jurisdictional defect. If there was error (and there was a conflict of opinion here) it was in the exercise of the function exclusively assigned to the Board by the legislation, and within that area, even if mistakes were made, s. 80 prevented judicial review.
Per Spence J., dissenting: The appellant had a right to obtain a decision of the Board. The word “person” in s. 50 and s. 65(4) should not be limited to mean only “employees” as described in s. 1(3)(b). Those who were entitled to complain and obtain a hearing by the Board under s. 65(4) were of a broader class than those who could enforce the resultant determination by court order under s. 65(5). Other means of enforcement were available, such as commencement of action in the ordinary fashion. However, as to the right of a Court to consider the application for certiorari, the Board was nowhere given exclusive jurisdiction to determine for itself the meaning to be attributed to s. 50 or to s. 65 and, of course, the Board could not by an erroneous interpretation of any section or sections of the Act confer upon itself a jurisdiction which it otherwise would not have. Certiorari still lay, despite s. 80, if the inferior tribunal gave itself jurisdiction by a wrong decision in law.
Also, the factum filed on behalf of the Board made no reference to the propriety of the respondents proceeding by way of certiorari and counsel for the Board in his argument made no submission in reference to certiorari. Moreover, the factum of the appellant did not refer at all to the provisions of s. 80 and although counsel for the appellant who submitted argument on the issue of the right to certiorari did cite the section he based his whole argument upon the proposition that certiorari only lay if there was error on the face of the record—not that certiorari proceedings, even if there were utter lack of jurisdiction in the inferior tribunal, were excluded. It would not, therefore, be appropriate for this Court to take such a position in this case.
[In re Ontario Labour Relations Bd., Toronto Newspaper Guild, Local 87 v. Globe Printing Co., [1953] 2 S.C.R. 18; L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Bd., [1953] 2 S.C.R. 140, applied; Re Ontario Labour Relations Bd., Bradley et al. v. Canadian General Electric Co., [1957] O.R. 316; Labour Relations Bd. et al. v. Traders’ Service Ltd., [1958] S.C.R. 672; Farrell et al. v. Workmen’s Compensation Bd., [1962] S.C.R. 48; Alcyon Shipping Co. v. O’Krane, [1961] S.C.R. 299; R. v. Ontario Labour Relations Bd., Ex. p. Taylor, 41 D.L.R. (2d) 456; The King v. Hickman, Ex. p. Fox and Clinton (1945), 70 C.L.R. 598; Tyrrell v. Consumers’ Gas Co., [1964] 1 O.R. 68, referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Parker J. and quashing a decision of the Ontario Labour Relations Board. Appeal dismissed, Abbott, Judson and Spence JJ. dissenting.
W.B. Williston, Q.C., and John Sopinka, for the appellant.
D.K. Laidlaw, for the respondent, Associated Medical Services, Incorporated.
H.L. Morphy, for the respondents, Ontario Labour Relations Board and A.M. Brunskill.
Taschereau C.J. and Martland and Hall JJ. concurred with the judgment delivered by
CARTWRIGHT J.:—The relevant facts and statutory provisions and the course of this litigation in the Courts below are set out in the reasons of my brothers Judson and Spence. All parties argued the appeal on the assumption that the findings of fact made by the Board must be accepted.
The appellant was discharged on February 2, 1961, on the ground that she was engaging in union activities on company premises during working hours. The Board found that her dismissal was unjustified and ordered that she be reinstated forthwith in employment with the respondent. The Board made the following finding as to the appellant’s status:
There can be no question but that on and after February 28, 1960, Mrs. Jarvis exercised functions which viewed in their entirety were functions which the Board has uniformly characterized as managerial in nature. If the issue as to the status of Mrs. Jarvis had arisen in these proceedings for the first time, I would have no hesitation whatever in finding that in my opinion at the material times in so far as the present proceeding is concerned, Mrs. Jarvis was exercising managerial functions and that she was therefore a person deemed not to be an employee under the terms of sec. 1(3)(b) of the Act.
The question calling for determination is whether, under The Labour Relations Act, R.S.O. 1960, c. 202, hereinafter referred to as “the Act”, the Board had jurisdiction to order the reinstatement of the appellant who at the time of her discharge had for almost a year ceased, for the purposes of the Act, to be an employee of the respondent.
It appears to me that the appeal can succeed only if we are able to construe the Act as giving the Board power, in appropriate circumstances, to compel the continuation of the employment not only of all persons who are “employees” within the meaning of that term as defined in the Act but also of all persons exercising managerial functions.
In my opinion such a construction would be at variance with the purposes which appear from reading the Act as a whole, and would involve giving a forced meaning to the words which the Legislature has employed.
I find myself so fully in accord with the unanimous reasons of the Court of Appeal[2], delivered by Aylesworth J.A., that I wish simply to adopt those reasons in their entirety. In particular, I find unanswerable the reasoning in the following passage where, after quoting the wording of ss. 50 and 65 of the Act, the learned Justice of Appeal continued:
Upon the facts as found by the board, the complainant “for the purposes of this Act” was not an employee; hence if complainant comes within the purview of sec. 50 she must be included in the term “person” as used therein. I do not think the term can be given so broad a meaning.
In clause (a) the pertinent prohibition is against refusal to employ or to continue to employ a “person” “because the person was or is a member of a trade union or was or is exercising any other rights under this Act.” In clause (b) the prohibition is against imposing or seeking to impose certain conditions of employment against “an employee or a person seeking employment” and in clause (c) the prohibition is against compelling an “employee” to do or refrain from doing certain things. To employ or to continue to employ a person is for the purposes of the Act, to cause a person to become an employee or to continue a person as an employee. The section refers to two classes of individuals—a person who seeks employment i.e., who seeks to become an employee and a person who already is an employee. This meaning of the word is quite in keeping with the general object and purpose of the Act; on the other hand it is neither logical or necessary to construe “person” as it appears in this section as applying to anyone other than an individual seeking to become an employee or who already is an employee and we are told in plain terms by sec. 1(3)(b) of the Act that someone working in a managerial capacity is not, for the purposes of the Act to be considered an employee.
The same reasoning applies to the provisions of sec. 65; in clauses (1) and (4) thereof “person” is used in exactly the same connotation as in sec. 50; clause (1) envisions a complaint that a person has been refused employment, i.e. has been thwarted in an attempt to become an employee or has been discharged, i.e. denied continuation in the role of employee. Clause (4) contemplates that the board, where a complaint has not been settled “may inquire into the complaint” and if it is satisfied “that the person has been refused employment” (or)... “discharged...it shall determine the action... to be taken by the employer...with respect to the employment of such person which...may...include reinstatement in employment.” Again the section is dealing with the same two classes of individuals—the person who is seeking to become an employee and the person who is an employee. In both instances it is “employment” which is spoken of and it is the refusal or termination of employment i.e. the withholding or termination for certain reasons of the role of “employee” which is the subject-matter of the board’s inquiry. Since for the purposes of the Act, the complainant is not deemed to be an employee, it is difficult to appreciate how it can be held that under sec. 65 her duties in a managerial capacity are to be included in the term “employment”. As in sec. 50, so in sec. 65 it is illogical and unrealistic that “employment” should be given any wider or other meaning than referring to work as an “employee” or that “person” should be construed as including anyone other than one seeking to become an employee; if any wider meaning is given either to person or to employment the language used is given a laboured and unnecessary meaning and one which does not further the general object and purposes of the legislation. Once the board determined, as it had the right to determine, that the complainant was a person deemed not to be an employee for the purposes of the Act it had ipso facto, demonstrated its lack of jurisdiction to proceed further with the complaint. The remedy, if any, of the complainant lies in another forum. My entire agreement with the reasons of Aylesworth J.A. includes, of course, the adoption of his statement:
...it is trite to observe that the Board cannot by an erroneous interpretation of any section or sections of the Act confer upon itself a jurisdiction which it otherwise would not have.
However, in view of what is said by my brother Judson as to s. 80 of the Act, I wish to add a few words as to why, in my opinion, that section does not prevent the quashing of the decision of the Board in this case.
The effect of this section, if it receives the construction most favourable to the appellant, is to oust the jurisdiction of the superior Courts to interfere with any decision of the Board which is made in exercise of the powers conferred upon it by the Legislature; within the ambit of those powers it may err in fact or in law; but I cannot take the section to mean that if the Board purports to make an order which, on the true construction of the Act, it has no jurisdiction to make the person affected thereby is left without a remedy; indeed, in L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board[3], Rinfret C.J. explicitly rejected such a suggestion. The extent of the Board’s jurisdiction is fixed by the statute which creates it and cannot be enlarged by a mistaken view entertained by the Board as to the meaning of that statute. The governing principle was succinctly stated by my brother Fauteux in In re Ontario Labour Relations Board, Toronto Newspaper Guild, Local 87 v. Globe Printing Co.[4] at p. 41:
The authorities are clear that jurisdiction cannot be obtained nor can it be declined as a result of a misinterpretation of the law, and that in both cases the controlling power of superior Courts obtains, notwithstanding the existence in the Act of a no certiorari clause.
This was the rule applied by the Court of Appeal in the case at bar. What is complained of by the respondent is not that the Board has been induced by errors of fact or law, or by both, to make an order in the exercise of its statutory jurisdiction, but rather that it has purported to make an order which the Act has not empowered it to make at all.
Since writing the above I have had the advantage of reading the reasons of my brother Ritchie and I agree with them. I would dismiss the appeal but would make no order as to costs.
Taschereau C.J. and Martland and Hall JJ. concurred with the judgment delivered by
RITCHIE J.:—The circumstances giving rise to this appeal have been fully set out by other members of the Court and it would be superfluous for me to reiterate them.
I agree with the reasons for judgment of my brother Cartwright and would dispose of this appeal in the manner proposed by him, but as there are other reasons which lead me to the same conclusion, I am prompted to make brief reference to them.
The appellant’s argument rests upon the proposition that although, by reason of the provisions of s. 1 (3)(b), a “person” who “in the opinion of the Board exercises managerial functions” is not an “employee” within the meaning of that word as used in The Labour Relations Act, R.S.O. 1960, c. 202, such person is nevertheless to be included in the category of individuals with respect to whose employment by the employer the Board is authorized to make a determination under s. 65(4) of the said Act.
It was pointed out by counsel for the appellant that “the Court must have regard to the statute as a whole” and he contended that when this was done it became apparent that in the sections of the Act dealing with collective bargaining, the legal subjects and objects are employers, employees, employers’ organizations and trade unions, whereas in the sections dealing with freedom to join and participate in the activities of trade unions and with unfair practices, the legal subjects and objects are employers, employees, trade unions, employers’ organizations and “persons”.
Dealing specifically with s. 65, the appellant’s counsel submitted that “if the legislature intended the benefits of s. 65 of the Act to be restricted to employees it would have used the term ‘employee’ and not ‘person’.”
It is upon this foundation that the appellant seeks to obtain an order setting aside the judgment of the Court of Appeal and restoring the determination of the Ontario Labour Relations Board dated April 27, 1961. It occurs to me that this argument loses much of its force when s. 65 itself is read as a whole and consideration is given to the provisions for enforcement of the Board’s determination which are contained in subs. 5 thereof. Section 65 (4) and (5) read as follows:
(4) Where the field officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint and, if it is satisfied that the person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act, it shall determine the action, if any, to be taken by the employer and the trade union or either of them with respect to the employment of such person, which, in its discretion, may, notwithstanding the provisions of a collective agreement, include reinstatement in employment with or without compensation by the employer and the trade union or either of them for loss of earnings and other employment benefits and the employer and the trade union shall do or abstain from doing anything required of them by the determination.
(5) Where the employer or the trade union has failed to comply with any of the terms of the determination, any employer, trade union or employee affected by the determination may, after the expiration of fourteen days from the date of the release of the determination or the date provided in the determination for compliance, whichever is later, notify the Board of such failure, and thereupon the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefor, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment or order of that court and is enforceable as such.
The only mention of this latter subsection in the tribunals below is to be found in the opinion of the chairman of the Ontario Labour Relations Board who had occasion to say:
It may be that the complainant, having regard to my finding as to her status, may encounter difficulty in enforcing any determination that the Board might make concerning her employment if she should seek enforcement under subsection 5 of section 65. However, we are not called upon at this stage to deal with that problem. It may not be amiss to point out here that, prior to the coming into force of the 1960 amendments to The Labour Relations Act, the relief afforded to a complainant under the counterpart of section 65 of the Act was not enforceable as a judgment or order of the Supreme Court.
The effect of the chairman’s “finding as to her status” (with which the majority of the Board agreed) is that the appellant exercised managerial functions at all times material to this complaint and that she was therefore expressly excluded from the status of an “employee” as that word is used in The Labour Relations Act.
These proceedings were initiated by a personal letter signed by Barbara Jarvis and addressed to the Ontario Labour Relations Board which bore the following heading:
REQUEST FOR REINSTATEMENT UNDER SECTION 65 OF THE LABOUR RELATIONS ACT FOR UNFAIR DISCHARGE FOR ALLEGED UNION ACTIVITY... As I have indicated, I agree with the view that the “reinstatement in employment” which the Board, in its discretion is entitled to include in “the determination” made by it under the authority of s. 65(4) is a “reinstatement in employment” as an “employee”. An “employee” who has been “dismissed by his employer contrary to the provisions of the Act or to any collective agreement” is not deemed to have ceased to be an “employee” by reason only of his ceasing to work for his employer on account of such dismissal (see s. 1(2)) and such “employee” is therefore entitled to apply for reinstatement under s. 65(4) and to proceed to the enforcement of the Board’s determination in accordance with s. 65(5), but the same considerations do not, in my opinion, apply to one who was not an “employee” within the meaning of the Act at the time of her dismissal.
The Board having found that the appellant was not such an “employee” at any time material to this application it follows, in my view, that the rights accorded to “any employee” under s. 65(5) are denied to her, so that if this Court were to comply with the request made by counsel for the appellant and were to restore the order of the Ontario Labour Relations Board dated April 27, 1961, it would be restoring an order which could not be enforced by the appellant in the manner provided by s. 65(5) for the enforcement of such a determination.
It appears to me to be unreasonable to suppose the Legislature to have intended that the benefits conferred by subs. (4) of s. 65 were to be enjoyed by a class of persons who are plainly excluded from the right to enforce those benefits in accordance with subs. (5) of the same section, and when s. 65 is read against the background of The Labour Relations Act as a whole, I am satisfied, for the reasons stated by Cartwright J. and by Aylesworth J.A., speaking on behalf of the Court of Appeal, that the provisions of s. 65(4) do not clothe the Labour Relations Board with any authority or jurisdiction to reinstate a person such as Mrs. Jarvis, who the Board itself has found to have been exercising “managerial functions” and who was thus not an “employee” within the meaning of s. 65(5) or any other section of the Act.
As I have indicated, I would dispose of this appeal as proposed by my brother Cartwright. FAUTEUX J.: For the reasons given by my brothers Cartwright and Ritchie, I would dismiss the appeal but make no order as to costs.
ABBOTT J. (dissenting): I have had an opportunity of reading the reasons of my brother Judson, with which I am in respectful agreement. I desire to add only a brief comment with respect to s. 80 of The Labour Relations Act, R.S.O. 1960, c. 202.
The primary purpose of The Labour Relations Act is to promote harmonious industrial relations within the province. A board such as the Labour Relations Board, experienced in the field of labour management relations, representing both organized employers, organized labour, and the public, and presided over by a legally trained chairman, ought to be at least as competent and as well suited to determine questions arising in the course of the administration of the Act as a Superior Court judge.
In enacting s. 80, the Legislature has recognized that fact and has indicated in the clearest possible language that the workings of the Board are not to be unnecessarily impeded by legal technicalities. The duty of the Courts is to apply that section, not to attempt to circumvent it.
I would dispose of the appeal as proposed by my brother Judson.
JUDSON J. (dissenting):—The judgment under appeal quashes a decision of the Ontario Labour Relations Board, which ordered the respondent, Associated Medical Services, Incorporated, to reinstate the appellant, Barbara Jarvis, in her employment. She had made a complaint to the Board that she had been discharged because she was a member of a labour union. The Board acted under s. 65 of The Labour Relations Act, R.S.O. 1960, c. 202, in ordering her reinstatement. The judgment of the Court of Appeal holds that because Mrs. Jarvis exercised managerial functions, she was not a “person” within the protection of s. 65 of the Act and that in her case the Board had no jurisdiction. With respect, I think that there was error in this conclusion.
Mrs. Jarvis was a member of the Office Employees International Union, Local 131. In December 1959, this union filed an application for certification as the bargaining agent of the employees of the respondent. At this time Mrs. Jarvis was employed as a clerk. In February 1960, she was promoted to the position of railway claims supervisor. In October 1960, the Labour Relations Board certified the union. At this time Mrs. Jarvis, according to the subsequent opinion of the Board, was exercising managerial functions. She was discharged from her employment in February 1961 and applied promptly for reinstatement under s. 65 of the Act. The Board ordered her reinstatement in June 1961.
The Board found that she had been dismissed for union activity, that she was a member of the union, Local 131, to the knowledge of the managing director of the respondent, that the union activity for which she was dismissed did not conflict with her duty to her employer, and that although her duties were managerial in nature and she was therefore a person deemed not to be an employee as defined by s. 1(3)(b) of the Act, nevertheless, she was a person entitled to the rights given under s. 65 of the Act.
This is the decision that was quashed by the Court of Appeal on what was, in my respectful opinion, an unduly narrow and erroneous construction of the statute.
Section 1(3)(b) reads:
1. (3) For the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
The result of this section is that in the sections of the Act which deal with bargaining rights and collective bargaining (the legal subjects and objects being employers, employees, employers’ organizations and trade unions), a person exercising managerial functions cannot be included within the bargaining unit. On the other hand, in the sections of the Act which deal with freedom to join and participate in the activities of trade unions and with unfair practices, the legal subjects and objects are employers, employees, trade unions, employers’ organizations and persons. For example, s. 3 of the Act provides that every person is free to join a trade union of his own choice and to participate in its lawful activities. This right is not limited to employees as defined by the Act, that is, to the exclusion of a person exercising managerial functions. Thus, a person who is not an employee as defined by the Act because of these managerial functions, is still a person and is amenable to the obligations of the Act and entitled to its protection. The term “person” as used in ss. 50 and 65 includes one who exercises managerial functions. Section 50(a) reads:
50. No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.
Mrs. Jarvis is a person within the meaning of that section and is entitled to its protection. Likewise, Mrs. Jarvis. is a person whom the Board can order to be reinstated in employment pursuant to the provisions of s. 65(4), which reads:
65. (4) Where the field officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint and, if it is satisfied that the person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act, it shall determine the action, if any, to be taken by the employer and the trade union or either of them with respect to the employment of such person, which, in its discretion, may, notwithstanding the provisions of a collective agreement, include reinstatement in employment with or without compensation by the employer and the trade union or either of them for loss of earnings and other employment benefits, and the employer and the trade union shall do or abstain from doing anything required of them by the determination.
The error in the judgment of the Court of Appeal is in its restriction of the rights conferred under this Act to those who are employees within the meaning of the Act. There is sound reason for the exclusion of employees exercising managerial functions from the bargaining unit but there is no such reason for the exclusion of these persons from the protection of the Act if they are members of a trade union and are discriminated against for union activity. There are many cases where a person exercising minor managerial functions retains union membership either by choice or compulsion.
Therefore, solely as a matter of statutory construction, I would hold that there was error in the judgment of the Court of Appeal and affirm the judgment of Parker J., who heard the original motion to quash and whose reasons for judgment are summarized in the following extract:
A perusal of the Act indicates that in the sections dealing with bargaining rights the term used is employees, but in the sections dealing with freedom to join and participate in the activities of trade unions the term used is persons. Section 65 refers to persons and, in my opinion, gives the Board power to consider an application such as this. The findings of fact made by the Board in this case were properly within its jurisdiction.
So far I have dealt with the matter as one of construction. Now that it appears that this order of the Board is going to be quashed on the ground of excess of jurisdiction, I wish to say something about the privative clause in the Act. The Board was authorized to embark upon an inquiry whether this person was discharged contrary to the provisions of the Act. This was the issue to be decided and the Board’s decision, to the extent that it is based on evidence, cannot be questioned on certiorari. It is now said that this decision cannot apply to Mrs. Jarvis because of the question of interpretation which I have discussed above. The Board put one interpretation on the word “person” to include Mrs. Jarvis and the Court of Appeal another. Which one is right does not matter. If the Board made a mistake, it is not deprived of jurisdiction. It makes a mistake, as many tribunals do, in the course of doing what it is told to do. This kind of mistake is not reviewable on certiorari.
In enacting s. 80 of The Labour Relations Act the Legislature has recognized that decisions made by the Board may involve what are looked upon by a Court as jurisdictional errors. The Legislature has said that it prefers to have these errors stand rather than have the decisions quashed on certiorari.
The quashing of this decision amounts to a disregard of the provisions of s. 80 of the Act, which reads:
80. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
It seems to me that the Court of Appeal in this case ignored its own decision in Re Ontario Labour Relations Board, Bradley et al. v. Canadian General Electric Co. Ltd.[5], and the decisions of this Court in Labour Relations Board et al. v. Traders’ Service Ltd.[6]; Farrell, et al. v. Workmen’s Compensation Board[7], and Alcyon Shipping Co. Ltd. v. O’Krane[8]. What is taken to be an error in law becomes a jurisdictional defect and so within the scope of judicial review. In all these cases at least one Court had found error in law and founded a jurisdictional defect on that finding. It does not matter what the error in law was. It was called jurisdiction. In Bradley and Traders’ Service, it was the composition of the bargaining unit. In Farrell, it was whether there was an accident arising out of and in the course of employment. In Alcyon, it was whether the case was one where the right to bring an action was taken away by the statute. These cases have this common feature, that in the first instance the Court found error in law and founded a jurisdictional defect on that conclusion. But if the Legislature takes away the remedy of certiorari, it must be dealing with this so-called jurisdictional error, for the correction of jurisdictional error is the only purpose of certiorari.
The Board is being told by the decision under appeal that it should have split its inquiry into two parts and that having found that Mrs. Jarvis was employed in a managerial capacity, it should have stopped at that point. But the Board had also found that Mrs. Jarvis was a person who was dismissed for union activity. I do not think that a decision ordering reinstatement does involve an excess of jurisdiction. The right to entertain the application is unquestionable. It relates to the subject-matter which is given to the Board for decision, and its decision is reasonably capable of reference to the power given to it. Section 80 prevents a decision of this kind from being quashed on certiorari because the reviewing tribunal may choose to call what it finds to be error a jurisdictional defect. If there is error (and there is a conflict of opinion here) it is within the exercise of the function exclusively assigned to the Board by the legislation, and within that area, even if mistakes are made, s. 80 prevents judicial review.
In stating the matter in this way I am doing no more than repeating what has often been said before and most recently by McRuer C.J.H.C., in Regina v. Ontario Labour Relations Board, Ex p. Taylor[9]. I do, however, wish to refer to and to adopt the statement of Dixon J. in The King v. Hickman, Ex p. Fox and Clinton[10], as summarizing the attitude of the High Court of Australia to this problem. The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
I do not think that the decisions of this Court in In re Labour Relations Board; Toronto Newspaper Guild, Local 87 v. Globe Printing Co.[11] and L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board[12] touch the present case. In the Globe case the union filed a number of membership cards. Counsel for the employer was not permitted by the Board to see these cards or to cross-examine on whether persons who were said to be members had, in fact, resigned. Nevertheless, the Board certified the union and based its decision on the cards. This Court held that there was a refusal of admissible evidence and that this refusal was of such a serious nature that the Board had not undertaken any task that the Act assigned to it. Its duty was to hold a hearing to determine whether the applicant represented the necessary percentage of employees and not merely to count cards. It never conducted such a hearing and its decision was a nullity. I have deliberately avoided the use of the word “jurisdiction” but what the Board did may actually be called a refusal of jurisdiction because it never attempted to do what it was told to do.
L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board held that decertification without notice was bad as being a violation of natural justice even though s. 41 of the Act did not then require it. There was no clear expression of any legislative intention that the Board could act without the necessity of hearing the person affected. This case belongs to a long line of cases which hold that a violation of natural justice is a ground for quashing an administrative decision. Ridge v. Baldwin et al.[13] is perhaps the most recent example. I would allow the appeal with costs throughout against the respondent, Associated Medical Services, Incorporated. There should be no order for costs against the Ontario Labour Relations Board.
SPENCE J. (dissenting):