Reference Re Postal Services Continuation Act, 1987, (1989) 101 N.R. 361 (FCA)

• Judge: Iacobucci, C.J., Heald and MacGuigan, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 23, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 101 N.R. 361 (FCA)

Ref. Re Postal Serv. Continuation Act (1989), 101 N.R. 361 (FCA)

MLB headnote and full text

In The Matter Of a Reference by the Canada Labour Relations Board under section 28(4) of the Federal Court Act, and In the Matter of an application to the Canada Labour Relations Board by Canada Post Corporation, pursuant to the Canada Labour Code, section 158(1), and In the Matter of the Postal Services Continuation Act, 1987, S.C. 1987, c. 40.

(No. A-1102-88)

Indexed As: Reference Re Postal Services Continuation Act, 1987

Federal Court of Appeal

Iacobucci, C.J., Heald and MacGuigan, JJ.A.

March 13, 1989.

Summary:

The Canadian Union of Postal Workers was engaged in a legal strike against the Canada Post Corporation, commencing with rotating strikes on September 30, 1987. The federal Government legislated the workers back to work on October 17, 1987, pursuant to the Postal Services Continuation Act. Pursuant to s. 28(4) of the Federal Court Act, the Canada Labour Relations Board asked the Federal Court of Appeal to determine whether the Act had the effect of reviving the expired collective agreement between Canada Post Corporation and the Canadian Union of Postal Workers during the period of the strike.

The Federal Court of Appeal answered the question accordingly.

Courts - Topic 4084

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Question of law - What constitutes - References - Federal Court Act, s. 28 (4) - Section 28(4) provided that a federal Board to which s. 28(1) applied could at any stage of its proceedings refer any question or issue of law, jurisdiction or practice, to the Federal Court of Appeal - The Federal Court of Appeal set out the test for when a question of law could be referred to the court under s. 28 (4) - See paragraphs 8, 9.

Labour Law - Topic 435

Labour relations boards and judicial review - Boards - Jurisdiction - Canada Labour Relations Board - Jurisdiction to refer question of law to Federal Court of Appeal - The Canada Labour Relations Board was called upon to decide whether the Postal Services Continuation Act, 1987, revived an expired collective agreement between Canada Post and the Canadian Union of Postal Workers - Two panels of the Board disagreed on whether the expired collective agreement was revived - The issue was therefore referred by the Board to the Federal Court of Appeal pursuant to s. 28(4) of the Federal Court Act - The Federal Court of Appeal held that the Board acted within its jurisdiction in bringing the reference - See paragraphs 7 to 10.

Labour Law - Topic 9729

Public service labour relations - Strikes - Back to work legislation - Interpretation - The Canadian Union of Postal Workers was engaged in a legal strike against a Canada Post Corporation, commencing with rotating strikes on September 30, 1987 - The federal Government legislated the workers back to work on October 17, 1987 (Postal Services Continuation Act) - The Canada Labour Relations Board asked the Federal Court of Appeal whether the Act had the effect of reviving the expired collective agreement between Canada Post and the Canadian Union of Postal Workers for the duration of the strike - The Federal Court of Appeal answered "yes, to the degree that the revived collective agreement respects the legality of the strike and does not give rise to retroactive illegality ..." - See paragraphs 11 to 24.

Cases Noticed:

Martin Service Station Ltd. v. Minister of National Revenue (1974), 1 N.R. 464, appld. [para. 9].

Reference Re National Energy Board Act (1987), 81 N.R. 241, appld. [para. 9].

Canadian Union of Postal Workers v. Canada Post Corp. (1988), 95 N.R. 65, appld. [para. 20].

Action Travail des Femmes v. Canadian National Railway, [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 23].

Lor-Wes Contracting Ltd. v. Minister of National Revenue, [1986] 1 F.C. 346; 60 N.R. 321, refd to. [para. 23].

Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24, refd to. [para. 23].

Canada Packers Inc. v. Canada (Minister of Agriculture) et al. (1988), 87 N.R. 81, refd to. [para. 23].

Nova, an Alberta Corporation v. Minister of National Revenue (1988), 87 N.R. 101, refd to. [para. 23].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Canadian Charter of Rights and Freedoms, 1982, sect. 11(g) [para. 23].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 28(4) [paras. 1, 8, 9].

Labour Code, R.S.C. 1985, c. L-2, sect. 158(1) [paras. 2, 3, 10].

Postal Services Continuation Act, S.C. 1987, c. 40, sect. 4(2) [para. 12]; sect. 4(2)(b) [para. 22]; sect. 5 [paras. 12, 22]; sect. 8 [para. 12].

Counsel:

Ronald A. Pink and Raymond F. Lurkin, for the Canadian Union of Postal Workers;

David Wakely and Donald Francis, for the Canada Post Corporation;

Gordon Henderson and Véronique L. Marleau, for the Canada Labour Relations Board;

Eric Bowie and Jean Fitzgerald, for the Deputy Attorney General of Canada.

Solicitors of Record:

Patterson, Kitz, Halifax, Nova Scotia, for the Canadian Union of Postal Workers;

Winkler, Filion & Wakely, Toronto, Ontario, for the Canada Post Corporation;

Gowling & Henderson, Ottawa, Ontario, for the Canada Labour Relations Board;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the Deputy Attorney General of Canada.

This appeal was heard in Ottawa, Ontario, on February 23, 1989, before Iacobucci, C.J., Heald and MacGuigan, JJ.A., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered on March 13, 1989, by MacGuigan, J.A.