N & L Construction Ltd., Re, (1987) 64 Nfld. & P.E.I.R. 271 (NFCA)

JudgeGoodridge, C.J.N., Gushue and Mahoney, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateFebruary 17, 1987
JurisdictionNewfoundland and Labrador
Citations(1987), 64 Nfld. & P.E.I.R. 271 (NFCA)

N&L Constr. Ltd., Re (1987), 64 Nfld. & P.E.I.R. 271 (NFCA);

    197 A.P.R. 271

MLB headnote and full text

N & L Construction Limited (appellant) v. United Brotherhood of Carpenters and Joiners of America, Local 579 (first respondent) and Labour Relations Board for Province of Newfoundland (second respondent)

(1986 No. 127)

Indexed As: N & L Construction Ltd., Re

Newfoundland Court of Appeal

Goodridge, C.J.N., Gushue and Mahoney, JJ.A.

April 7, 1987.

Summary:

Pinsent Construction Co. and the United Brotherhood of Carpenters and Joiners of America, Local 579 (the union) were parties to a collective agreement. N & L Construction was incorporated to obtain work as a nonunion company. N & L had, with one minor difference, the same shareholders and directors as Pinsent Construction. The union applied under s. 89 of the Labour Relations Act for a declaration that the collective agreement between the union and Pinsent was binding upon N & L Construction and its employees.

The Labour Relations Board held that there was a transfer of a business within the meaning of s. 89 of the Act and therefore N & L Construction was bound by the collective agreement. N & L Construction applied for certiorari to quash the board's decision.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 61 Nfld. & P.E.I.R. 63; 185 A.P.R. 63, dismissed N & L Construction's application. N & L appealed.

The Newfoundland Court of Appeal dismissed the appeal and affirmed the board's decision.

Administrative Law - Topic 1442

Finality - Collateral, jurisdictional or preliminary issues - What constitutes a collateral, preliminary or jurisdictional issue - The Labour Relations Act (Nfld.), s. 89, gave the Labour Relations Board authority to decide who was bound by particular collective agreements - The directors and shareholders of a company that was a party to a collective agreement, set up a new company to obtain nonunion work - The board held that the new company was bound by the collective agreement, because there was a transfer of a business within the meaning of s. 89 of the Act - The Newfoundland Court of Appeal affirmed the board's decision - The court discussed whether the determination by the board that there was a transfer of the business within the meaning of s. 89 of the Act was a primary or preliminary question - See paragraphs 7 to 16 and 29 to 57.

Labour Law - Topic 4908

Unions - Successor rights and obligations - Sale, lease, transfer or disposition of business - The Labour Relations Act (Nfld.), s. 89, gave the Labour Relations Board authority to decide who was bound by particular collective agreements - The directors and shareholders of a company that was a party to a collective agreement, set up a new company to obtain nonunion work - The board held that the new company was bound by the collective agreement, because there was a transfer of a business within the meaning of s. 89 of the Act - The Newfoundland Court of Appeal affirmed the board's decision - The court held that the board's decision was not patently unreasonable and refused to quash the decision.

Cases Noticed:

Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; 38 N.R. 541, consd. [para. 11].

Service Employees' International v. Nipawin Union Hospital, [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, consd. [para. 17].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 79 D.L.R.(3d) 417; 79 C.L.C.C. 14,209, consd. [paras. 17, 54].

Blanchard v. Controlled Data Canada Limited, [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289, consd. [para. 54].

Syndicat des Employes v. Canadian Labour Relations Board, [1984] 2 S.C.R. 412; 55 N.R. 321, consd. [para. 54].

Statutes Noticed:

Labour Relations Act, S.N. 1977, c. 64, sect. 16.1(2) [para. 43]; sect. 17(k)(vii) [paras. 8, 9, 10, 16, 27, 42, 55]; sect. 18(1) [paras. 11, 28]; sect. 89 [paras. 1, 4, 6, 7, 8, 19, 20, 25, 26, 36]; sect. 89(1) [paras. 12, 13, 40, 46, 47, 50, 56]; sect. 89(2) [paras. 41, 47, 48, 55].

Authors and Works Noticed:

Carter, Roger, The Privative Clause in Canadian Administrative Law, 1944 to 1985: A Doctrinal Examination (1986), 64 Can. Bar Rev. 159 [para. 54].

Counsel:

Carl Thompson, for the appellant;

Edward Shortall, for the first respondent;

Edward Hearn, for the second respondent.

This appeal was heard on February 17, 1987, before Goodridge, C.J.N., Gushue and Mahoney, JJ.A., of the Newfoundland Court of Appeal. On April 7, 1987, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Gushue, J.A. (Mahoney, J.A., concurring) - see paragraphs 1 to 21;

Goodridge, J.A. - see paragraphs 22 to 59.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT