Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board, (1976) 9 N.R. 181 (SCC)

• Judge: Ritchie, Spence, Pigeon and Beetz, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 31, 1976
• Jurisdiction: Canada (Federal)
• Citations: (1976), 9 N.R. 181 (SCC);67 DLR (3d) 421;9 NR 181;1976 CanLII 170 (SCC);[1977] 1 SCR 722

Transair v. CAIMAW (1976), 9 N.R. 181 (SCC)

MLB headnote and full text

Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board

Indexed As: Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon and Beetz, JJ.

May 31, 1976.

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 managerial 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 employees in the unit who supported the union. At the start of the hearing the board announced that it was satisfied that the union had a majority of the membership support in the bargaining unit. 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 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 the employees was a denial of natural justice. In addition, the Federal Court of Appeal stated that the board upon receipt of the petition from the employees should have made enquiries to satisfy itself that the union had the required majority support of the employees. The judgment of the Federal Court of Appeal is reported at 6 N.R. 123.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Federal Court of Appeal was set aside and the order of the Canada Labour Relations Board was restored. The Supreme Court of Canada affirmed the power of the board to reject the petition because it was untimely - See paragraphs 29 to 31 and 37. In addition, the Supreme Court of Canada stated that the employer cannot invoke the rights of the employees, a jus tertii, to attack the certification order of the board - See paragraph 32. The Supreme Court of Canada held that the board's refusal to permit the cross-examination of the union official did not in the circumstances constitute a denial of natural justice - See paragraphs 25 to 28 and 37.

The Supreme Court of Canada held that the Canada Labour Relations Board did not have the status or the capacity to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada - See paragraphs 35 and 40 to 45. However, the Supreme Court of Canada treated the appeal as if the union was the appellant before the Supreme Court of Canada.

Spence, Martland and Ritchie, JJ., dissenting, in the Supreme Court of Canada, would have dismissed the appeal and would have affirmed the judgment of the Federal Court of Appeal. Spence, J., would have quashed the certification order of the board because the decisions of the board in question constituted a breach of the principles of natural justice - See paragraphs 39 to 61.

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 union - 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 Supreme Court of Canada affirmed the power of the board to reject the petition because it was "untimely" - See paragraphs 29 to 31 and 37 - In addition, the Supreme Court of Canada stated that the employer cannot invoke the rights of the employees, a jus tertii, to attack the certification order of the board - See paragraph 32.

Labour Law - Topic 656

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 - At the start of the hearing the board announced that it was satisfied that the union had a majority of the membership support in the unit - The board certified the union as the bargaining agent - The Supreme Court of Canada held that the board's refusal to permit such cross-examination in the circumstances did not constitute a denial of natural justice - See paragraphs 25 to 28 and 37.

Labour Law - Topic 580

Labour relations board - Judicial review of a determination by the Canada Labour Relations Board of whether an employee was included in the bargaining unit - The Supreme Court of Canada refused to review such a decision by the board because there was evidence before the board to support its decision - See paragraphs 16, 37 and 57.

Administrative Law - Topic 8843

Board and tribunals - Capacity or status of a statutory board to appear before the courts where a decision of the board is under judicial review - A union appealed to the Federal Court of Appeal a decision of the Canada Labour Relations Board because the board failed to act in accordance with the principles of natural justice - At a certification hearing the board refused to permit the employer to cross-examine a union official respecting union membership - The Federal Court of Appeal set aside an order of the board which certified the union - The board appealed to the Supreme Court of Canada - The Supreme Court of Canada held that the board did not have the status or capacity to appeal the decision of the Federal Court of Appeal - The Supreme Court of Canada stated that a statutory tribunal may defend its jurisdiction in the courts and in the event of an adverse judgment it may appeal therefrom - However, the Supreme Court of Canada held that a question of whether a board acted in accordance with the principles of natural justice is not a matter of jurisdiction and is not a matter which such a board should debate as a protagonist - See paragraphs 35 and 40 to 45.

Words and Phrases

Jurisdiction - The Supreme Court of Canada discussed the meaning of the word "jurisdiction" in the context of the jurisdiction of statutory tribunals - See paragraphs 35 and 40 to 45.

Cases Noticed:

Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd., [1947] S.C.R. 336, folld. [paras. 3, 41].

International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board (1958), 18 D.L.R.(2d) 588, folld. [paras. 3, 40].

Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, folld. [paras. 4, 49]; dist. [para. 28].

Re Jackson and Ontario Labour Relations Board, [1955] O.R. 83, refd to. [para. 28].

Cunningham Drug Stores Ltd. v. Labour Relations Board, [1973] S.C.R. 256, refd to. [para. 32].

Statutes Noticed:

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 28(1) [para. 7].

Canada Labour Code, R.S.C. 1970, c. L-1, sect. 118 [para. 19]; sect. 118(p)(ii) [para. 57]; sect. 126 [para. 19].

Counsel:

G.F. Henderson, Q.C. and George Hynna, for the appellant;

W.R. DeGraves, Q.C. and M.J. Phelps, for the respondents.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on December 8 and 9, 1975. Judgment was delivered by the Supreme Court of Canada on May 31, 1976 and the following opinions were filed:

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

BEETZ, J. - see paragraphs 34 to 38.

SPENCE, J. - dissenting, see paragraphs 39 to 61.

JUDSON, J., concurring with LASKIN, C.J.C.

PIGEON, J., concurred with BEETZ, J.

MARTLAND and RITCHIE, JJ., concurred with SPENCE, J.