Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3, (1974) 6 N.R. 123 (FCA)

• Judge: Jackett, C.J., Tritschler, D.J. and Bastin, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 13, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 6 N.R. 123 (FCA)

Transair Ltd. v. CAIMAW (1974), 6 N.R. 123 (FCA)

MLB headnote and full text

Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3

Indexed As: Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3

Federal Court of Appeal

Jackett, C.J., Tritschler, D.J. and Bastin, D.J.

November 13, 1974.

Summary:

This case arose out of an application for certification by a trade union. The union applied for certification as bargaining agent with respect to "all office workers of Transair Ltd. and all related officers, except managorial staff". At the certification hearing counsel for the employer was denied the right to cross-examine a union official with respect to the number of the employees in the unit who supported the union. Subsequent to the hearing but before an order was made a significant number of employees in the unit sent a petition against certification to the Canada Labour Relations Board. The board rejected the petition because it was "untimely". The Canada Labour Relations Board certified the union as bargaining agent for the unit.

On appeal to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act the appeal was allowed and the certification order of the board was set aside. The Federal Court of Appeal stated that the board's refusal to permit the employer to lead evidence with respect to the support of the union by employees was a denial of natural justice - see paragraph 71 and 84. The Federal Court of Appeal stated that the board upon receipt of the petition from the employees should have made inquiries to satisfy itself that the union had the required majority support of the employees - see paragraphs 26 and 85. The Federal Court of Appeal stated that the board's time limits can always be extended in the interests of justice - see paragraph 26 and footnote 11.

The Federal Court of Appeal interpreted s. 107(1) of the Canada Labour Code and referred to several employees classifications which should not have been included as "employees" in the certification order of the Canada Labour Relations Board - see paragraph 19.

Note that a motion for leave to appeal this case to the Supreme Court of Canada was granted by the Supreme Court of Canada on February 3, 1975 - see 4 N.R. 478.

Labour Law - Topic 656

Labour relations board - Denial of natural justice - Canada Labour Relations Board - Denial by the board of the right of an employer to adduce evidence - At a certification hearing the board refused to permit an employer to cross-examine a union official respecting the number of employees who supported the union - The board certified the union as the bargaining agent - The Federal Court of Appeal set aside the certification order of the board - The Federal Court of Appeal stated that the board's refusal to permit the employer to lead evidence was a denial of natural justice - See paragraphs 71 and 84.

Labour Law - Topic 490

Labour relations board - Duties of the board - Determination at a certification hearing of whether a union had the majority support of the employees in the unit - After the Canada Labour Relations Board held a certification hearing but before an order was made the board received a petition against certification from a significant number of employees in the unit - The board rejected the petition because it was "untimely" - The Canada Labour Relations Board certified the union as bargaining agent - The Federal Court of Appeal set aside the certification order of the board because of the failure of the board to investigate the petition and to satisfy itself that the union had the required support of the employees - The Federal Court of Appeal stated that the petition should have been investigated regardless of the board's time limitations - See paragraphs 26 and 85.

Labour Law - Topic 805

Labour relations board - Procedure - Hearing - Time for objections - Extensions of time in the interest of justice - The Federal Court of Appeal stated that the board's time limits can always be extended in the interests of justice - See paragraph 26 and footnote 11.

Words and Phrases

Employee - The Federal Court of Appeal discussed the meaning of the word "employee" as found in s. 107(1) of the Canada Labour Code - See paragraph 19.

Cases Noticed:

Hoffmann-La Roche Limited v. Demar Chemicals Limited, [1965] S.C.R. 575, refd to. [fn. 9].

Metropolitan Life Insurance Company v. International Union of Operating Engineers, [1970] S.C.R. 425, refd to. [para. 30].

Toronto Newspaper Guild, Local 87, American Newspaper Guild v. Globe Printing, [1953] 2 S.C.R. 18, dist. [fn. 7]; refd to. [para. 31]; folld. [paras. 71, 79].

Board of Education v. Rice, [1911] A.C. 179, folld. [para. 79].

R. v. Westminster Assessment Committee, ex. p. Grosvenor House (Park Lane) Ltd., [1940] 4 All E.R. 132, folld. [para. 82].

Statutes Noticed:

Canada Labour Code, S.C. 1972, c. 18, sect. 107(1) [para. 2]; sect. 126 [para. 2].

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 52(d) [para. 20].

Counsel:

W. De Graves, Q.C. and M.E.J. Phelps, for the appellant;

S. Sorrow, for the respondent;

A. McGregor and J.J. Dudick, for the intervenant.

This appeal was heard by the Federal Court of Appeal at Winnipeg, Manitoba on October 31 and November 13, 1974. Judgment was delivered by the Federal Court of Appeal on November 13, 1974 and the following opinions were filed:

JACKETT, C.J. - see paragraphs 1 to 33.

TRITSCHLER, D.J. - see paragraphs 34 to 76.

BASTIN, D.J. - see paragraphs 77 to 85.