Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Association

Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Association
Collection
Supreme Court Judgments
Date
1993-10-21
Report
[1993] 3 SCR 724
Case number
21429
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank
On appeal from
Federal Court of Appeal
Subjects
Labour law
Notes
SCC Case Information: 21429
Decision Content
Supreme Court of Canada
Canada labour relations board v. Québecair, [1993] 3 S.C.R. 724
Date: 1993-10-21
Canada Labour Relations Board Appellant
v.
Québecair-Air Québec et Al. Respondents
and
Canadian air Line Pilots Association et Al., and CPAL-MEC Mis En Cause
and
The Attorney General of Canada Intervener
and Between
Canada Labour Relations Board Appellant
v.
Canadian Pacific air Lines Ltd. et Al. Respondents
and
Canadian air Line Pilots Association et Al., and CPAL-MEC Mis En Cause
and
The Attorney General of Canada Intervener
and Between
Canada Labour Relations Board Appellant v.
Nolisair International Inc. (Nationair) Respondent
and
Canadian Air Line Pilots Association et Al., and CPAL-MEC Mis En Cause
and
The Attorney General of Canada Intervener
INDEXED AS: CANADIAN PACIFIC AIR LINES LTD. V. CANADIAN AIR LINE PILOTS ASSN.
File No.: 21429.
1993: March 2; 1993: October 21.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour relations — Canada Labour Relations Board — Jurisdiction — Board ordering employers to produce documents during investigation of union's application for amendment of certification — Whether Board's power to compel production of documents may be exercised only in context of formal hearing — Standard of review applicable to Board's order — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(a), 121.
Following various arrangements effected by the respondent airlines, the pilots' union brought an application to the Canada Labour Relations Board requesting a declaration that the respondents were now a "single employer" or, alternatively, that there had been a sale of a business. During its investigation in preparation for the hearing, the Board made an informal request to the respondents for the production of certain documents and information. When the respondents refused to comply, the Board issued an order, pursuant to ss. 118(a), (f) and 121 of the Code, to compel them to deliver the documents and information requested. The respondents then filed an application for judicial review with the Federal Court of Appeal. The court allowed the application and set aside the Board's order, holding that the Board did not have the power under ss. 118 or 121 of the Code to compel the production of documents and sworn written testimony prior to and outside a hearing before the Board.
Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, Gonthier and Iacobucci JJ.: The issue in this case goes to the jurisdiction of the Board. It follows that the standard governing judicial review of the Board's order is one of correctness.
The scope of the power granted by s. 118(a) of the Code is clear from the plain meaning of the words of that section: the Board may exercise its power to compel the production of documents only in the context of a formal hearing. The structure and nature of s. 118(a) support this conclusion. The structure of the section makes the power to compel the production of documents a part of a complete process which is limited to a formal hearing to which witnesses may be summoned and where they may give evidence on oath. The power is coercive in nature and the limits placed on its exercise by s. 118(a) must be respected. The power is also judicial in character. To extend its application to an administrative context would be an exceptional enlargement of its scope and would require clear wording to that effect. Finally, when the Board's administrative and judicial functions are considered, the confinement of the power to compel the production of documents only to the context of a formal hearing is not inconsistent with the purposes and role of the Board.
The scope of s. 118(a) cannot be enlarged by s. 118(f). Paragraph (f) is permissive in nature and does not empower the Board to compel the production of documents when a person refuses to do so. Similarly, the reference to "written evidence" in s. 118(a) does not broaden its scope. Written testimony was historically and is still in certain contexts an effective and accurate means for presenting evidence. The modernization of the phrasing of the section, including the removal of the words "before them" with regard to the compulsion of attendance of witnesses, cannot be taken as a basis for ignoring all the other aspects of the provision which indicate that it is concerned with the powers of the Board in the context of a hearing. The fact that the Board is under no general duty to hold hearings does not require that its powers be interpreted so that it need never do so.
Section 121 of the Code — a general provision which empowers the Board to make orders requiring compliance with the provisions of Part V — does not include a power to compel the production of documents outside the context of a formal hearing. The general provisions in the Code cannot be construed so as to give to the Board powers which are broader than those expressly and specially provided for elsewhere. Since the power to compel the production of documents has been specially treated in s. 118(a), s. 121 cannot be used to circumvent the special limits imposed on the power by that provision.
Per L'Heureux-Dubé J. (dissenting): The standard of review applicable to the Board's order is correctness. A functional analysis of the relevant sections of the Code discloses that Parliament did not intend to give the Board the exclusive power of making a final ruling on the point at issue. The Board's jurisdiction is concerned primarily with the application of Part V of the Code, and it has an especially important part to play in connection with the acquisition and extinction of bargaining rights and the exercise of rights to strike and lock out. To issue an order under s. 118(a), the Board does not have to decide a question central to its field of expertise. Determining the means of exercising the power conferred by that paragraph is not, strictly speaking, a question of industrial relations or labour law and is therefore not within the Board's jurisdiction stricto sensu.
The wording of s. 118(a) of the Code is ambiguous as to the way in which the power it confers on the Board is to be exercised. In view of this ambiguity, an analysis which is primarily concerned with a literal and grammatical interpretation of s. 118(a) is inappropriate. One must go beyond the wording of the provision and examine its context. Classification of the power conferred by s. 118(a) as judicial or quasi-judicial is not per se decisive as to its interpretation as it runs the risk of masking the nature of the Board's function, which must be both flexible and effective.
Seen in its context, especially its procedural context, the meaning of the amendment made when s. 118(a) was adopted — the removal of the words "before them" — leads to the conclusion that the exercise of the power to order written testimony and documents to be filed is not subject to any duty to hold a viva voce hearing. First, the procedural guarantees of the parties affected are not compromised by the absence of such a hearing. A person who is the subject of a production order may put forward his objections effectively by presenting them in writing, just as he or she may do so regarding the merits of the principal case. He or she may also make use of the internal and external procedure for reviewing decisions and orders of the Board provided for in ss. 119 and 122 of the Code to make his objection. The absence of a formal hearing in the context of s. 118(a) is not inconsistent with the rules of natural justice. Second, the Board has complete control of its procedure and the right to render its decisions on the merits without any formal hearing. It would therefore seem illogical for Parliament to impose on the Board a duty to hold a viva voce hearing, solely in order to obtain relevant information or documents that a party refuses to provide voluntarily. Such an interpretation would establish an absolute right to a viva voce hearing and deprive the Board of complete control of its procedure. In the absence of clear language excluding the principle that the Board has complete control over its own procedure, courts should not adopt an interpretation which, for all practical purposes, would have the same effect. Finally, the Board's primary purpose is not inconsistent with a power to order the filing of documents and to require witnesses to testify in writing outside viva voce hearings. On the contrary, the effect of such a power is to increase the Board's efficacy.
Cases Cited
By Gonthier J.
Applied: Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; distinguished: Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Tremblay v. Séguin, [1980] C.A. 15; Re Canadian Broadcasting Corp. and Canadian Union of Public Employees, Broadcast Division (1978), 18 L.A.C. (2d) 357.
By L'Heureux-Dubé J. (dissenting)
R. v. Amway Corp., [1989] 1 S.C.R. 21; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; Durham Transport Inc. v. International Brotherhood of Teamsters (1977), 21 N.R. 20; Canadian Arsenals Ltd. v. Canada Labour Relations Board, [1979] 2 F.C. 393; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; Komo Construction Inc. v. Commission des relations de travail du Québec, [1968] S.C.R. 172; Canadian Pacific Air Lines Ltd. v. C.A.L.P.A., [1988] 2 F.C. 493, leave to appeal refused, [1988] 1 S.C.R. vii; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722.
Statutes and Regulations Cited
Act to amend the Canada Labour Code, S.C. 1972, c. 18.
Act to empower Commissioners for inquiring into matters connected with the public business, to take evidence on oath, S. Prov. C. 1846, 9 Vict., c. 38.
Canada Labour Code, R.S.C. 1970, c. L-1, s. 160(5) [rep. 1972, c. 18, s. 1].
Canada Labour Code, R.S.C. 1970, c. L-1 [am. 1972, c. 18, s. 1], ss. 61.5 [ad. 1977-78, c. 27, s. 21; am. 1980-81-82-83, c. 47, s. 27; am. 1984, c. 39, s. 11], 117 [am. 1977-78, c. 27, s. 39; am. 1984, c. 39, s. 25], 118 [am. 1977-78, c. 27, s. 40], 119, 121,122 [rep. & sub. 1977-78, c. 27, s. 43], 123 [idem], 124 [am. idem, s. 44; am. 1984, c. 39, s. 26], 125, 127 [am. 1977-78, c. 27, s. 46], 128 [idem, s. 47; am. 1984, c. 39, s. 27], 129, 133, 134, 137 to 140, 144, 157 [am. 1977-78, c. 27, s. 55], 175, 194 [rep. & sub. 1977-78, c. 27, s. 69].
Canada Labour Code, R.S.C., 1985, c. L-2, s. 16 (a).
Canada Labour Relations Board Regulations, 1978, SOR/ 78-499, s. 19.
Canadian Charter of Rights and Freedoms, s. 11 (c).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 50(2) .
Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 28(1). Inquiries Act, R.S.C. 1952, c. 154, s. 4.
Inquiries Act, R.S.C. 1970, c. I-13, s. 4.
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed.
Aurora, Ont.: Canada Law Book, 1993 (loose-leaf).
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Dorsey, James E. Canada Labour Relations Board: Federal Law and Practice. Toronto: Carswell, 1983.
Grand Robert de la langue française, 2e éd. Paris: Le Robert, 1986, "audience", "procédure".
APPEAL from a judgment of the Federal Court of Appeal (1989), 95 N.R. 255, 59 D.L.R. (4th) 384, setting aside a decision of the Canada Labour Relations Board. Appeal dismissed, L'Heureux-Dubé J. dissenting.
Louis Crête and Johane Tremblay, for the appellant.
R. Luc Beaulieu and Manon Savard, as amici curiae.
Jean-Marc Aubry, Q.C., and René LeBlanc, for the intervener.
The judgment of Lamer C.J. and La Forest, Gonthier and Iacobucci JJ. was delivered by
GONTHIER J. — This case raises the issue of whether the appellant, the Canada Labour Relations Board (the "Board"), may act to compel parties, interveners or interested persons to produce documents prior to and outside of the context of a formal hearing held by the Board.
I — The Facts
On September 11, 1986, the mis en cause, the Canadian Air Line Pilots Association (the "Association"), brought an application to the Board pursuant to ss. 119, 133 and 144 of the Canada Labour Code, R.S.C. 1970, c. L-1. The Association sought an answer to two questions: whether the arrangements effected by the respondent airlines had resulted in the respondents being properly considered as a "single employer" for the purposes of s. 133 of the Code, or alternatively whether those arrangements had effected sales, for the purposes of s. 144 of the Code. Accompanying the application were a number of supporting documents. As well, several informal requests for documents were made both by the Board itself and parties to the proceedings. The substantive matters raised in the application are not themselves in issue in this appeal. The issue in this appeal arose when the Board sought to act formally in support of a request made by its delegates for information and the production of documents.
In preparation for the hearings, the Board advised the parties that it would proceed with an investigation, and informed the respondents as to the information and documents that it expected them to provide. The respondent employers had informed the Board that in their view the Board did not have the power to enforce the request for documents which had been made, and expressed their reasons for refusing to comply with the request. The required information and documents were confirmed in a letter dated June 18, 1987 sent by Serge Quesnel, labour relations officer, and Gerard Legault, director of operational services and registrar, both of the Board, to the respondents. This was in effect an informal request for documents and information. In early July, the respondents informed the Board of their refusal to comply with the request, and on July 13 the Board issued an order stated to be pursuant to ss. 118 and 121 of the Code, and in particular, but without limiting the generality of the application of s. 118, to paras, (a) and (f) of that section, to compel the respondents to deliver the documents in question by July 31, 1987. The Board stated in the introductory paragraphs to the order that it considered the relevant information and documents to be necessary for a complete investigation and review of the matters before it, as mandated pursuant to its responsibilities under the Code. In a letter dated July 15, 1987, the Board communicated its decision to the parties, with the following explanation:
The context in which the Board is exercising its power to demand documents is at the pre-hearing stage. The Board is acting in its investigative/administrative role as a canvasser of information on the relationships between the various employer-respondents and the applicants with regard to revision of the bargaining units, sale of businesses and single employer.
Following the refusal of the respondents to comply with the order made by the Board, the matter was brought to the Federal Court of Appeal by way of application pursuant to s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.).
II — The Judgment Below
In the Federal Court of Appeal, the application for judicial review was allowed unanimously, and the order of the Board dated July 13, 1987 was set aside: (1989), 95 N.R. 255, 59 D.L.R. (4th) 384. Marceau J.A. noted that the investigations which the Board was undertaking were necessary in order to enable the Board to consider the redefinition of the Association's certificate of certification and the scope of the existing collective agreements. While the parties raised three main arguments, the appeal was disposed of on the basis of the first issue, being whether the Board had the power to compel the production of documents and sworn written testimony prior to and outside a hearing before the Board.
III — Points in Issue
The following two questions are now before this Court:
1. May the Board, for the purposes of its inquiry into the matters raised by the Association, act pursuant to s. 118(a) of the Code to require the production of documents and written testimony other than in a hearing viva voce? 2. Alternatively, did the Board act outside its jurisdiction when it founded its order on s. 121 of the Code?
IV — Relevant Legislative Provisions
The Canada Labour Code provides as follows:
118. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
(b) to administer oaths and affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion the Board sees fit, whether admissible in a court of law or not;
(d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;
(e) to examine documents forming or relating to the constitution or articles of association of
(i) a trade union or council of trade unions that is seeking certification, or
(ii) any trade union forming part of a council of trade unions that is seeking certification;
(f) to make such examination of records and such inquiries as it deems necessary;
(g) to require an employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring to the attention of any employees any matter relating to the proceeding;
(h) subject to such limitations as the Governor in Council in the interests of defence or security may by regulation prescribe, to enter any premises of an employer where work is being or has been done by employees and to inspect and view any work, material, machinery, appliances or articles therein and interrogate any person respecting any matter that is before the Board in the proceeding;
(i) to order, at any time before the proceeding has been finally disposed of by the Board, that (i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a representation vote or additional representation vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and
(ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;
(j) to enter upon an employer's premises for the purpose of conducting representation votes during working hours;
(k) to authorize any person to do anything that the Board may do under paragraphs (b) to (h) or paragraph (f) and to report to the Board thereon;
(l) to adjourn or postpone the proceeding from time to time;
(m) to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;
(n) to amend or permit the amendment of any document filed in connection with the proceeding;
(o) to add a party to the proceeding at any stage of the proceeding; and
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or employee,
(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers' organization, a trade union or a council of trade unions,
(v) a group of employees is a unit appropriate for collective bargaining, (vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a collective agreement, and
(viii) a collective agreement is in operation.
121. The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by, or as may be incidental to the attainment of the objects of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Part, with any regulation made under this Part or with any decision made in respect of a matter before the Board.
V — Analysis
An analysis of the power granted to the Board by s. 118(a) of the Code first calls for a consideration of its wording. As the issue goes to the jurisdiction of the Board, the standard governing the judicial review of the Board's order is one of correctness: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and most recently Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230. Although s. 118(a) is constituted by one long sentence with a number of elements, its meaning is clear: the Board has the power to compel a person who refuses to provide answers or information by summoning that person to attend, and thereupon require that person to testify and produce the documentary evidence. While this is the natural meaning which appears when the provision is simply read through as a whole, it is also the meaning which commends itself when the structure and nature of the provision are examined.
The authority which is granted to the Board pursuant to s. 118 relates mainly to the powers and duties of the Board in gathering evidence, and to some degree other matters like the governance of the procedure in hearings and the determination of certain questions of fact.
The power at issue is limited by the words of s. 118(a). They do not provide for a power to compel the production of documents, per se; this power does not stand alone. Rather, the section empowers the Board to require that certain persons attend and to compel them to give evidence, whether it be oral or written, and to produce documents or other things which the Board deems requisite in the circumstances. Those activities are not expressed to be in the alternative, but are outlined as part of one single process. The process is initiated by the summoning and enforced attendance of witnesses, and it is in relation to those persons — witnesses summoned — that the power of the Board to compel the production of documents is conferred. This power must of necessity be exercised with regard to specific individuals, as it is attached to the summoning and testifying of witnesses. The section also requires that those persons give their evidence on oath. The reference to persons summoned to give oral and written evidence on oath is part of the limits on the exercise of the power.
This empowering provision is distinct from all but one other provision in s. 118. Paragraphs (b), (c), (d), (e), (f), (g), (h), and (j) of that section allow the Board to consider a wide variety of sources and forms of information. There is in these provisions no expression of a power to compel or require the production of any of the evidence referred to in these paragraphs. All of the sources of information there referred to may only be examined on a voluntary basis and without the exercise of constraint. This no doubt explains the decision of the Board to ground the order not on a single provision but on paras. (a) and (f) together of s. 118. Paragraph (f) permits the Board to engage in such enquiries and examination of records as it deems necessary, but it does not empower the Board to compel the production of documents when a person refuses to do so. Paragraph (f) is in terms similar to preceding sections of the paragraph which enumerate specific evidence and documents which the Board may receive and examine. For instance, para, (d) includes a reference to "such evidence as is submitted to it". Together with the other paragraphs of s. 118, para. (f) does allow the Board to examine a wide variety of sources for the purposes of fulfilling its duties, but does not expand the scope of the power provided for in s. 118(a). The structure of the provision limits the exercise of the power of compulsion to the context of a formal hearing.
This conclusion is also supported by the nature of the provision. The power granted by s. 118(a) is coercive. While the orders of the Board are not executory in themselves, they are enforceable by filing with the Registry of the Federal Court, as judgments of that court pursuant to s. 123 of the Code, with the penalties attached thereto including that of imprisonment. The exercise of such powers is normally reserved uniquely for courts of law, and it is exceptional that they may be initiated by a body such as the Board. This is significant in two ways. First, because s. 118(a) is an exceptional provision which grants to a body a significant power, special attention must be given for this reason alone to any limits which are placed on the exercise of that power by the words of the provision granting it. The Board has no inherent jurisdiction, unlike superior courts whose powers of coercion find their origins in the inherent jurisdiction of those courts.
Second, it requires consideration of the special application of the power which the Board seeks to have affirmed. The context in which the power was purportedly exercised is an administrative one. The Board correctly envisaged its purpose as the accumulation of information bearing on the relationships between the various employer-respondents and the applicants with regard to the revision of the bargaining units, the sale of businesses and single employer. The power was exercised in support of an initial request made informally. There is no reference in the provision to the exercise of the powers to compel the production of documents in the context of the administrative role of the Board. On the contrary, each and every reference to the manner of exercise of the power contained in the provision relates to its exercise in a non administrative context in contrast to the other information gathering provisions of s. 118. As noted above, persons subject to the power are referred to as "witnesses", the process by which their presence is to be secured is by means of summons, and the evidence is to be given on oath.
Indeed, the nature of the acts authorized by para. (a) is judicial. Reference may be had to the case of Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, at p. 225. In that case, the commissioner who had required the production of documents had the authority to act with the powers of a superior court in term. In rejecting the argument that cases involving other actions of commissions were applicable, it was decided that the nature of the activity of the commission must be properly identified. It was held that:
… what is presently in issue is the validity of strictly judicial acts: the compulsion of witnesses to testify and to produce documents.
In Tremblay v. Séguin, [1980] C.A. 15, the Quebec Court of Appeal considered this matter. The important connection between the aspect of enforcement by constraint, the nature of the power and the proper interpretation of that power was there recognized. As was stated in the reasons of L'Heureux-Dubé J.A. (as she then was), at p. 16:
[TRANSLATION] After considering the relevant provisions of the Police Act and the Public Inquiry Commissions Act from which the appellants derive their powers, the trial judge said the following:
In the circumstances, did the respondent commissioners and the mis en cause Commission have the power to summon the applicants to appear and to testify?
The power of constraint is a significant limitation on the principles of individual liberty. Legislation conferring that power must be construed with the greatest caution and the prescribed procedure must be regarded as a matter of strict law… .
I agree.
The characterization of the power in question cannot proceed without reference to the exorbitant nature of the penalties which are available to secure compliance. In light of the judicial nature of the power, an extension of the power so that it would be exercisable in an administrative context would be an exceptional enlargement of its application. The power cannot be envisaged to be so broad in the absence of clear wording to that effect.
It has been pointed out that there is no provision which requires the Board to hold formal hearings, and yet the result of the interpretation adopted by the Court of Appeal is that the power of constraint which it has pursuant to s. 118(a) can only be exercised once the Board has chosen to hold a hearing. This is not incompatible. The fact that the Board is under no general duty to hold hearings does not require that its powers be interpreted so that it need never do so.
While the Board has the power under s. 118(k) to delegate certain of its functions, the power of the Board to compel the production of documents is not included within this group of functions. Instead, it is excluded from being the subject of delegation, together with the other coercive powers which the Board has, namely, to order a representation vote pursuant to s. 118(i). This highlights the distinct and restricted nature of this power.
It is argued that the reference to written evidence in s. 118(a) broadens its scope. In the Court of Appeal, Marceau J.A. approaches this question in terms of the history of the provision. The reference to written testimony is reflective of the fact that prior to the development of effective means for recording testimony, the use of written testimony was an effective and accurate way for the presentation of evidence. While there has been some reformulation of the words of the provision, which Marceau J.A. records in more detail, it remains reflective of the wording of similar provisions which date from the last century. It should also be noted that, in addition to exceptional circumstances such as where evidence is to be given by a person both deaf and mute, or when the information in question is in the nature of graphs or charts, the giving of written testimony may nonetheless simply be an efficient mode for the trans- mission of information and is commonly used, particularly in areas of expert testimony. The inclusion within the provision of a reference to written testimony does not therefore mandate the conclusion that the power to compel the production of documents may be exercised other than in a formal hearing. While there have been a number of changes to the wording of the provision over the years, including the removal from s. 118 of the words "before them" with regard to the compulsion of attendance of witnesses, the modernization of the phrasing cannot be taken as a basis for ignoring all the other aspects of the provision which indicate that it is indeed concerned with the powers of the Board in the context of a hearing. Such a significant change to the nature of the powers under that section would require clear and express wording.
It is noted that a similar conclusion regarding the scope of s. 118(a) was reached by George W. Adams sitting as arbitrator in Re Canadian Broadcasting Corp. and Canadian Union of Public Employees, Broadcast Division (1978), 18 L.A.C. (2d) 357, at p. 362:
…the phrase "to produce documents and things" is referable to the Board's powers over witnesses it has summoned to appear before it… Had Parliament intended to provide the Board with a power "to order" the production of documents similar to the powers of our civil Courts, the section in question [i.e. relating to the giving of oral or written testimony, etc.] would have specifically provided for this power and, most likely, would have provided a correlative procedure for pre-hearing motions to review such an important power.
See also, Canadian Labour Law (2nd ed. 1993), at pp. 5-1 ff.
It was argued that since the wording of the enabling legislation does not precisely delineate the powers of the Board (a premise with which I disagree), it would be not unreasonable in light of the words of the enabling statute, and indeed useful, if a general power to compel the production of documents were to be recognized. It was also argued that the recognition of such a power is necessary and indispensable in order that the other powers granted may be exercised effectively.
In the Court of Appeal, Marceau J. A. considered the consistency of the various arguments raised (at p. 265 N.R.):
It was suggested that the restrictive character of the provision [118(a)] should not prevail. Counsel argued, first, that the drafters of the provision clearly did not intend to give the words used the exclusive meaning they might ordinarily have, as they spoke of "written evidence" and evidence is not given in writing at a hearing. Then, having by this means minimized the importance of the words used, counsel maintained that a restrictive interpretation would conflict with the context, as it would be inconsistent with the function assigned to the Board and the way in which it must fulfil that function. I do not share these views.
While these comments must be understood in the context of the conclusion of Marceau J.A., with which I am in agreement, that the scope of the provision is clear on its face, they point to two matters which should be noted here. It is a fundamental rule of interpretation that the meaning of general provisions in the Code cannot be developed in such a way so as to give to the Board powers which are broader than those expressly and specially provided for elsewhere. In Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412, at p. 432, Beetz J. referred to the reasons for this principle of interpretation as twofold: first, the general may not be interpreted so as to render unnecessary the other provisions setting forth the power of the Board, and second, the limitations inherent in the specific provisions which detail the powers of the Board must be abided by if the intent of the legislature is to be respected. One of the issues in that case was the proper relationship between a broader, general provision, s. 121 of the Code, and the grants of powers made specifically elsewhere in the Code. Beetz J. wrote (at pp. 432-33): It is quite possible that s. 121 covers only the powers necessary to perform the tasks expressly conferred on the Board by the Code, as Pratte J. indicated. Nevertheless, I consider that even if it covers autonomous or principal powers, like that of ordering a reference to arbitration, and not merely incidental or collateral powers, it cannot cover autonomous powers designed to remedy situations which the Code has dealt with elsewhere, and for which it has prescribed specific powers, as is the case with unlawful strikes. Here, the legislator has not only specified the principal powers of the Board in s. 182, but its collateral powers as well in s. 183.1. These two sections contain an exhaustive description of the Board's authority over unlawful strikes and cover it completely.
While I shall refer to these words of Beetz J. below in connection with the arguments raised regarding s. 121 in this case, it is clear that the mere presence of words capable of bearing a broad meaning must not provide a foundation for the disregard of the restrictive provisions which specially delineate the power at issue.
Nor can the argument that the more general provisions justify a broader interpretation of the power to compel the production of documents be supported in light of a careful review of the purposes and role of the Board. It was submitted that the administrative aspect of the role of the Board required that the powers of the Board be viewed in a generous fashion. This argument cannot succeed here, for two reasons. First, the Board does not only have an administrative function to perform. The Board is required to act in the manner of a court of law in assessing legal arguments in relation to complex factual circumstances. Second, and as a result, the procedural safeguards which normally accompany a process having a judicial character cannot be viewed as alien in relation to the activities of the Board. At the most general level, the limitations which are imposed upon the Board's exercise of its power to compel the production of documents are consistent with the principle of audi alteram partem. I am in agreement with Marceau J.A. in that (at p. 267 N.R.):
This is not a matter of limiting the scope of the Board's investigations, simply of requiring that to secure the production of documents and testimony of witnesses it should only use the measures at its disposal to overcome the reticence of an individual in a manner which allows that individual to adequately present the reasons for his objections.
This is not to say that there is no other way in which fairness to a witness who is compelled to produce evidence may be achieved. But it does demonstrate that these limits are consistent with the functioning of the Board, when the purposes of the Board are seen as a whole.
While it was argued that such a situation would be inconsistent with the efficient and normal functioning of the Board, there is no evidentiary basis for a conclusion that recognizing the power to compel the production of documents only in the context of a formal hearing would amount to anything more than an inconvenience. The Board is not prevented from receiving documentary evidence which persons choose to submit, as it is only the power of compulsion itself which is subject to limitations. Having regard to the fact that the functions of the Board include not only administrative but also judicial and quasi-judicial functions, the importance of the efficient operation of the Board must be balanced with the considerations of procedural fairness which are manifest in the structure of the enabling legislation itself.
This Court has had occasion to consider the question of the proper way to approach the interpretation of the provisions which empower certain bodies to undertake certain kinds of activities. In Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394, this Court considered whether a statutory grant of authority in ss. 8(1) , 8(2) and 8(3) of the Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp .), provided a power to punish for contempt ex facie curiae. Those sections were held to provide for such a power on the basis of the plain meaning of the words as well as the breadth of the provisions seen in light of one another and established principles of interpretation. The jurisdiction of the Tribunal was grounded in s. 8(1) of the Act, and its power to punish for contempt ex facie curiae was specified in s. 8(2) . That section reads as follows:
8… .
(2)