United Nurses of Alberta v. Alberta (Attorney General), (1992) 135 N.R. 321 (SCC)

• Judge: Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 16, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 135 N.R. 321 (SCC);1 Alta LR (3d) 129;135 NR 321;13 CR (4th) 1;[1992] 3 WWR 481;1992 CanLII 99 (SCC);[1992] 1 SCR 901;[1992] SCJ No 37 (QL);14 WAC 241;71 CCC (3d) 225;[1992] ACS no 37;125 AR 241;89 DLR (4th) 609;JE 92-658;9 CRR (2d) 29

United Nurses v. Alta. (A.G.) (1992), 135 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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United Nurses of Alberta (appellant) v. The Attorney General for Alberta (respondent) and The Attorney General of Canada, The Attorney General of Quebec and The Attorney General of British Columbia (intervenors)

(21870)

Indexed As: United Nurses of Alberta v. Alberta (Attorney General)

Supreme Court of Canada

Lamer, C.J.C., La Forest, Sopinka,

Gonthier, Cory, McLachlin and

Iacobucci, JJ.

April 16, 1992.

Summary:

The Labour Relations Board (Alta.) issued two directives forbidding the United Nurses of Alberta from threatening a strike or caus­ing a strike. The union disobeyed the direc­tives. The Board filed both directives in the Court of Queen's Bench under s. 142(7) of the Labour Relations Act, thereby making the directives enforceable by the court. The union continued to disobey the directives.

The Alberta Court of Queen's Bench found the union guilty of criminal contempt. When the union continued to disobey the directives the court found the union guilty of criminal contempt again. The union appealed both convictions. The union submitted that it was not a legal person subject to prosecution for criminal contempt; that the second notice of motion, founding the second conviction, was too vague; that the union was denied its right to cross-examine Board members; that the two convictions were for the same acts and that the trial judge failed to permit the union to prove the directives were invalid.

The Alberta Court of Appeal, Veit, J.(ad hoc), dissenting in part, in a judgment re­ported 104 A.R. 246, dismissed the appeals and affirmed the convictions. The union appealed.

The Supreme Court of Canada, Lamer, C.J.C., Sopinka and Cory, JJ., dissenting, dismissed the appeal.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 8547 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamen­tal justice - A union disobeying two di­rectives of the Labour Relations Board (Alta.) was found guilty of criminal con­tempt - The union submitted that the offence of criminal contempt was contrary to the principles of fundamental justice (Charter, s. 7), because liberty could be denied through imprisonment and the offence was not codified and was vague and arbitrary - The Supreme Court of Canada held that, assuming that the Char­ter applied, criminal contempt did not violate the principles of fundamental jus­tice - The lack of codification per se did not violate s. 7 and the offence was suffi­ciently certain to meet the requirements of fundamental justice - The court stated that criminal contempt also did not violate ss. 11(a) or 11(g) - See paragraphs 10 to 23.

Constitutional Law - Topic 6444

Federal jurisdiction (s. 91) - Criminal law - Matters not criminal - [See Constitu­tional Law - Topic 8606 ].

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - [See Constitutional Law - Topic 8606 ].

Constitutional Law - Topic 8606

Judicial powers - Appointment of judges (s. 96) - Provincial labour relations legis­lation - Section 142(7) of the Labour Relations Act (Alta.) permitted the Labour Relations Board to file a directive with the court to be enforced by the court - The court had no discretion to refuse to enforce the directive, but the directive could still be challenged on jurisdictional grounds - The Supreme Court of Canada rejected the submission that s. 142(7) violated s. 96 of the Constitution Act by allowing a provin­cial board to exercise powers of a s. 96 court - The court stated that s. 142(7) engaged the jurisdiction of the superior court to control the administration of jus­tice through civil and criminal contempt proceedings, but did not create criminal law - The province enacted noncriminal law and Parliament made it a criminal offence to breach this provincial law - See paragraphs 24 to 38.

Contempt - Topic 503

What constitutes - Civil and criminal contempt distinguished - The Supreme Court of Canada distinguished between civil and criminal contempt - The court stated that "a person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having com­mitted civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. ... The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect to edicts of the court" - See paragraphs 17 to 18.

Contempt - Topic 510

What constitutes - Criminal contempt - Elements of - The Supreme Court of Canada stated that "to establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances" - See paragraph 21.

Contempt - Topic 694

What constitutes - Judgments and orders - Board directives filed in court - [See Civil Rights - Topic 8547 ].

Contempt - Topic 3043

Persons liable - Trade unions - The Supreme Court of Canada stated that the United Nurses of Alberta, an unincorpor­ated union registered under Canadian labour legislation, had status to be found guilty of criminal contempt - The court stated that "having been given legal status for collective bargaining purposes, unions now find themselves subject to the respon­sibilities that go with that right. If they exercise their rights unlawfully, they may be made to answer to the court by all the remedies available to the court, including prosecution for the common law offence of criminal contempt" - See paragraphs 6 to 9.

Contempt - Topic 5103

Practice - Hearing - Procedure - Cross-examination - The Supreme Court of Canada stated that a person charged with criminal contempt has all the protections of a criminal trial, including the right of cross-examination - A union was denied the right to cross-examine on the ground that the intended cross-examination was irrelevant - The court stated that even if the refusal to allow cross-examination was premature, the appeal would be dismissed on this ground because there was no sub­stantial wrong or miscarriage of justice (Criminal Code, s. 686(1)(b)(iii)) and the verdict would necessarily have been the same - See paragraphs 39 to 40.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - Miscarriage of justice - What constitutes - [See Contempt - Topic 5103 ].

Cases Noticed:

International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265, refd to. [para. 7].

Maritime Employers' Association et al. v. International Longshoremen's Associ­ation, Local 273 et al., [1979] 1 S.C.R. 120; 23 N.R. 386; 89 D.L.R.(3d) 289, refd to. [para. 7].

Young v. Canadian National Railway, [1931] 1 D.L.R. 645 (P.C.), refd to. [para. 7].

R. v. United Fishermen and Allied Workers Union, [1968] 2 C.C.C. 257 (B.C.C.A.), refd to. [para. 8].

British Columbia Telephone Co. v. Tele­communications Workers Union (1981), 121 D.L.R.(3d) 326 (B.C.), refd to. [para. 8].

New Brunswick Electric Power Commis­sion v. International Brotherhood of Electrical Workers (1977), 16 N.B.R.(2d) 161; 21 A.P.R. 161 (C.A.), refd to. [para. 8].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241, refd to. [para. 11].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 13].

Frey v. Fedoruk, [1950] S.C.R. 517, refd to. [para. 13].

Poje v. Attorney General for British Co­lumbia, [1953] 1 S.C.R. 516, refd to. [para. 17].

Crevier v. Attorney General of Quebec and Aubry, [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 29].

R. v. Parke, [1903] 2 K.B. 432, refd to. [para. 31].

R. v. Davies, [1906] 1 K.B. 32, refd to. [para. 31].

Labour Relations Board of Saskatchewan v. John East Ironworks Ltd., [1949] A.C. 134 (P.C.), refd to. [para. 31].

Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112; 7 N.R. 217; 10 N.R. 35; 14 N.S.R.(2d) 191; 11 A.P.R. 191, refd to. [para. 31].

Ajax & Pickering General Hospital v. Canadian Union of Public Employees (1981), 132 D.L.R.(3d) 270 (Ont. C.A.), refd to. [para. 37].

Citation Industries Ltd. v. United Brother­hood of Carpenters and Joiners of America, Local 1928 (1988), 53 D.L.R.(4th) 360 (B.C.C.A.), refd to. [para. 37].

R. v. Hill (1976), 73 D.L.R.(3d) 621 (B.C.C.A.), refd to. [para. 43].

Canadian Broadcasting Corporation and Knapp v. Quebec Police Commission, [1979] 2 S.C.R. 618; 28 N.R. 541, refd to. [para. 45].

Attorney General v. British Broadcasting Corp., [1980] 3 All E.R. 161, refd to. [para. 45].

Parklane Private Hospital Ltd. v. British Columbia Government Employees Union (1988), 88 C.L.L.C. 14,017, refd to. [para. 49].

Toronto Railway Co. v. City of Toronto (1920), 51 D.L.R. 69, refd to. [para. 51].

Edmonton General Hospital v. United Nurses of Alberta, Local 79 (1990), 104 A.R. 394 (C.A.), refd to. [para. 53].

Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547 (H.C.), affd. [1967] 1 O.R. 609 (C.A.), refd to. [para. 54].

R. v. Green (1992), 132 N.R. 234 (S.C.C.), refd to. [para. 56].

Scott v. Scott, [1913] A.C. 419 (H.L.), refd to. [para. 63].

R. v. Kopyto (1987), 24 O.A.C. 81; 61 C.R.(3d) 209 (C.A.), refd to. [para. 68].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 77].

R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 21 O.A.C. 62; 32 C.C.C.(3d) 417 (C.A.), refd to. [para. 88].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 88].

R. v. Garofoli, [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317, refd to. [para. 89].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(a), sect. 11(g) [para. 10].

Constitution Act, 1867, sect. 96 [para. 25].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 33]; sect. 10(3) [para. 40]; sect. 127 [para. 33]; sect. 686(1)(b)(iii) [para. 40].

Labour Relations Act, R.S.A. 1980, c. L-1.1, sect. 25(1) [para. 8]; sect. 105(3), sect. 142(5) [para. 3]; sect. 142(7) [para. 24]; sect. 153(1), sect. 154, sect. 155, sect. 156, sect. 157 [para. 81].

Labour Relations Act, R.S.O. 1980, c. 228, sect. 83a [para. 48].

Rules of Court (Alta.), rule 704(1) [para. 79].

Societies Act, R.S.A. 1980, c. S-18, sect. 1(c) [para. 9].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1990), p. 319 [para. 43].

Canada, Law Reform Commission, Con­tempt of Court, Working Paper No. 17, pp. 3-4 [para. 70].

Maxwell, The Interpretation of Statutes (12th Ed. 1969), p. 246 [para. 55].

Oswald, Contempt of Court (3rd Ed.), p. 36 [para. 63].

Counsel:

Alexander D. Pringle and Sheila J. Greckol, for the appellant;

Paul C. Bourque and Robert C. Maybank, for the respondent;

I.G. Whitehall, Q.C., and L.M. Huculak, for the Attorney General of Canada;

Jean-François Jobin, for the Attorney General of Quebec;

Deborah K. Lovett, for the Attorney Gen­eral of British Columbia.

Solicitors of Record:

Alexander D. Pringle, Edmonton, Alberta, for the appellant;

Paul Bourque, Edmonton, Alberta, for the respondent;

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

Bernard, Roy & Associés, Montreal, Que­bec, for the Attorney General of Quebec;

Attorney General of British Columbia, Victoria, B.C., for the Attorney General of British Columbia.

This appeal was heard on December 3, 1991, before Lamer, C.J.C., La Forest, So­pinka, Gonthier, Cory, McLachlin and Iaco­bucci, JJ., of the Supreme Court of Canada.

On April 16, 1992, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. (La Forest, Gonthier and Iacobucci, JJ., concurring) - see para­graphs 1 to 41;

Sopinka, J., dissenting - see paragraphs 42 to 58;

Cory, J., dissenting (Lamer, C.J.C., con­curring) - see paragraphs 59 to 92.