Fahey Building Ltd. v. United Steelworkers of America, Local 6204 et al., (1981) 33 Nfld. & P.E.I.R. 135 (NFCA)

• Judge: Mifflin, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 30, 1981
• Jurisdiction: Newfoundland and Labrador
• Citations: (1981), 33 Nfld. & P.E.I.R. 135 (NFCA)

Fahey Building v. USWA (1981), 33 Nfld. & P.E.I.R. 135 (NFCA);

    93 A.P.R. 135

MLB headnote and full text

Fahey Building Limited v. United Steelworkers Of America, Local 6204; Goose Bay Timber Company Limited v. Steelworkers Of America, Local 6480

(1980 No. 206)

Indexed As: Fahey Building Ltd. v. United Steelworkers of America, Local 6204 et al.

Newfoundland Supreme Court

Court of Appeal

Mifflin, C.J.N., Morgan and Gushue, JJ.A.

October 30, 1981.

Summary:

Two employers applied for orders of certiorari to set aside certifications of a union as bargaining agent for their employees. In a judgment reported 31 Nfld. & P.E.I.R. 290; 87 A.P.R. 290, the Newfoundland Supreme Court, Trial Division, granted the application of Fahey Building Limited and set aside the certification on the grounds that the employees were not eligible to belong to the union. For the same reasons the Trial Division in a judgment unreported in this series of reports, granted the application of Goose Bay Timber Company Limited. The union appealed.

The Newfoundland Court of Appeal dismissed the appeal.

Administrative Law - Topic 1420

Finality - Privative clauses - Effect of - The Newfoundland Court of Appeal held that a privative clause restricting judicial review of the Newfoundland Labour Relations Board could not restrict judicial review on matters of jurisdiction - See paragraphs 10 to 27.

Administrative Law - Topic 1442

Finality - Collateral, jurisdictional or preliminary issues - What constitutes - The Newfoundland Labour Relations Board certified a union as bargaining agent for employees after finding that the employees were members in good standing of the union - However, the employees were not eligible for membership in the union - The Newfoundland Court of Appeal held that the Board's error in finding that the employees were members in good standing of the union was an error of law on the face of the record, which went to the jurisdiction of the board - See paragraphs 10 to 27.

Administrative Law - Topic 5020

Judicial review - Certiorari - Grounds - Error of law on the face of the record - The Newfoundland Labour Relations Board certified a union as bargaining agent for employees, who were ineligible for membership in the union - The Newfoundland Court of Appeal affirmed the quashing of the certification and held that the Board's decision that the employees were members in good standing of the union was an error of law on the face of the record, which went to the jurisdiction of the board - See paragraphs 10 to 27.

Labour Law - Topic 600

Labour Relations Boards - Judicial review - Jurisdiction - Provincial boards - General - The Newfoundland Labour Relations Board - The Newfoundland Court of Appeal held that the Labour Relations Board was subject to judicial review by way of certiorari for errors of jurisdiction, notwithstanding the restriction of judicial review in s. 18(1) of the Labour Relations Act, S.N. 1977, c. 64 - See paragraphs 10 to 27.

Labour Law - Topic 2285

Unions - Constitution and bylaws - Interpretation - Membership eligibility - The Newfoundland Court of Appeal held that a union could not be certified as the bargaining agent for employees, who are ineligible for membership in the union under the union's constitution.

Labour Law - Topic 4023

Unions - Certification - Hearing - Right to a hearing - The Newfoundland Court of Appeal held that the Labour Relations Board erred in failing to give an employer a requested hearing on a certification application as required by Rule 9(1)(c) under the Labour Relations Act - See paragraphs 28 to 29.

Labour Law - Topic 4033

Unions - Certification - Hearing - Evidence and documents on file - Union constitution - The Newfoundland Court of Appeal held that on filing, as required by Rule 21(2) under the Labour Relations Act, a copy of a union constitution became part of the record of the proceedings of the union's application of certification - See paragraphs 8 to 9.

Labour Law - Topic 4105

Unions - Certification - Membership in good standing - What constitutes - The Newfoundland Court of Appeal affirmed the setting aside of the certification of a union as bargaining agent for employees, who were ineligible to be members of the union - The Newfoundland Court of Appeal held that the employees could not be members in good standing of the union.

Cases Noticed:

Alberta Board of Industrial Relations et al. v. Stedelbauer Chevrolet Oldsmobile Limited, [1969] S.C.R. 137, appld. [para. 10].

In re Ontario Labour Relations Board, Toronto Newspaper Guild, Local 87 v. Globe Printing Co., [1953] 2 S.C.R. 18, appld. [para. 15].

Farrell v. Workmen's Compensation Board, [1962] S.C.R. 48; 33 W.W.R.(N.S.) 433, consd. [para. 13].

Jarvis v. Associated Medical Services Inc. et al. (1962), 35 D.L.R.(2d) 375, affd. [1964] S.C.R. 497, appld. [para. 15].

Galloway Lumber Co. Ltd. v. Labour Relations Board of British Columbia, [1965] S.C.R. 222, appld. [para. 15].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, appld. [para. 16].

Service Employees Union v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, appld. [para. 20].

Metropolitan Life Insurance Company v. International Union of Operating Engineers, [1970] S.C.R. 125, refd to. [para. 20].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Commission, [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417, refd to. [para. 20].

Toronto Newspaper Guild et al. v. Globe Printing Co., [1952] 2 D.L.R. 302, appld. [para. 26].

St. Michael's General Hospital v. Board of Industrial Relations of Alberta (1979), 23 A.R. 1; 80 C.L.L.C., para. 14,008, folld. [para. 27].

Statutes Noticed:

Labour Relations Act, S.N. 1977, c. 64, sect. 17(k)(iii), sect. 18 [para. 7]; sect. 36(1), sect. 37 [para. 4].

Labour Relations Act Regulations (Nfld.), sect. 21(2) [para. 9]; sect. 48(1) [para. 7].

Counsel:

James Puddester, for the Appellants;

David Hurley, for the Respondents;

Edward Hearn, Intervenor for Labour Relations Board.

This case was heard on June 5, 1981, at St. John's, Newfoundland, before MIFFLIN, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On October 30, 1981, GUSHUE, J.A., delivered the following judgment for the Court of Appeal: