Commission des Relations de Travail du Québec v. Cimon Limitée, [1971] SCR 981

Supreme Court of Canada

Commission des Relations de Travail du Québec v. Cimon Limitée, [1971] S.C.R. 981

Date: 1971-05-31

La Commission des Relations de Travail du Québec Appellant;

and

Cimon Limitée Respondent.

1971: February 15; 1971: May 31.

Present: Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Labour relations—Certification—Vote—Writ of Evocation—Audi alteram partem—Petition ill‑founded in law—Invoking rights of another party—Summary dismissal—Labour Code, R.S.Q. 1964, c. 141, ss. 118, 121, 122—Code of Civil Procedure, art. 1, 846, 848.

In June 1968, a QFL union submitted a petition for certification as representative of the employees of the respondent. On March 7, 1969, the appellant Board upheld the returning officer’s report that the votes were one short of the absolute majority and dismissed an application for a new ballot. A month later, a CNTU union requested certification. The Board ordered a vote. On May 27, the Board, pursuant to its decision of March 7, announced rejection of the QFL union’s petition for certification and cancelled a certificate of 1944 in favour of former QFL unions, because these associations were no longer in existence.

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On June 2, the respondent requested the Board to stay the taking of a vote, to order a hearing and to rescind the decision ordering a vote, contending that the QFL union was the successor to the former unions and ought to have been notified of the petition for certification as the union holding certification at the time. The Board refused. The respondent filed a motion for a writ of evocation and the Superior Court authorized the issuance of a writ of summons. This decision was upheld by two judges of the Court of Appeal. The Board was granted leave to appeal to this Court.

Held (Martland J. dissenting): The appeal should be allowed.

Per Fauteux C.J. and Abbott, Judson and Pigeon JJ.: The issuance of the writ of summons was unjustified. The respondent was not entitled to invoke the rights of another party before the Board. When it filed its petition for rescission, the QFL union no longer had an apparence of right. The decisions of the Court of Appeal have firmly established the principle that a hearing is an absolute prerequisite under s. 118 of the Labour Code only for the cancellation or revision of a decision. The Board is not deprived of the power to summarily dismiss a petition which is manifestly ill-founded in law.

Per Martland J., dissenting: The Board did not have the power to render a decision on the request for cancellation of its order directing a vote of the employees, without permitting the respondent to be heard. The Board did not comply with the requirement of s. 118 of the Labour Code and, by refusing the request, went beyond its powers. Consequently, s. 121 of the Labour Code did not become operative, and the Superior Court acted properly in authorizing the issuance of a writ of evocation.

APPEAL from a judgment rendered by two judges of the Court of Appeal as provided in s. 122 of the Labour Code. Appeal allowed, Martland J. dissenting.

Olivier Prat, for the appellant.

Jacques LeBel, for the respondent.

The judgment of Fauteux C.J. and of Abbott, Judson and Pigeon JJ. was delivered by

Pigeon J.—In June 1968 an employees’ association known as the “Upholsterers’ Interna-

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tional Union of North America, Local 402,” hereinafter called the “QFL Union,” submitted to the Quebec Labour Relations Board a petition for certification as representative of the employees of respondent Cimon Limitée. The Board ordered a vote, ballotting took place on October 9, 1968, and the returning officer’s report was briefly as follows:

Names on the official list ……………………………..	25
Ballots marked in favour of the QFL Union …………………………………………	12

As the votes were only one short of the absolute majority called for by the statute, and two ballots, a yes and a no, were rejected, the returning officer’s report was challenged.

On March 7, 1969, the Board, after hearing the parties, rendered a decision in which it not only upheld the returning officer’s report, but also dismissed the application for a new ballot put forward as an alternative request. The decision clearly implied rejection of the petition. Thus, the dissenting member of the Board concluded with these words: “I disagree with my colleagues and accordingly cannot dismiss petitioner’s application for certification.”

On April 9, 1969, another employees’ association, “Le Syndicat national des Employés de Cimon Limitée (CNTU),” hereinafter called the “CNTU Union,” in turn submitted a petition requesting certification as representative of the Cimon Limitée employees. The Board on May 13, 1969, ordered a vote on this application for certification. It must be noted that the vote held in 1968 only asked the employees to say whether or not they wished to be represented by the QFL Union, and in the same way the second vote was designed to find out if they wished to be represented by the CNTU Union. What was ordered was thus not the new ballot denied to the first union.

On May 27, the Board rendered two decisions: the first, pursuant to that of March 7, announced rejection of the QFL Union’s petition for certification; and the second cancelled a certification issued on November 22, 1944, in favour of

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associations referred to as “International Furniture Union, Local 347, and Upholsterers, Local 302;” these are hereinafter called the “former QFL Unions.” The reason for the latter decision was that these associations were no longer in existence.

On June 2, Simon Limitée filed with the Board a petition requesting it to stay the taking of a vote, to order a hearing, and then to rescind the decision ordering a vote. The reason given was that the new QFL Union was the successor to the former unions, and that certification of the latter had not yet been cancelled when the petition of the CNTU Union was filed. It was contended that, consequently, the QFL Union, being the union holding certification at the time, ought to have been notified of the petition, and this had not been done. On June 16, the Board rendered the following decision on this petition:

[TRANSLATION] Regarding the petition for rescission the Board has considered the petition and the objection submitted by respondent.

The Board accepts the allegations of respondent to effect that petitioner is unlawfully pleading on another’s behalf by presenting an objection in which it has no legal interest.

Following this decision by the Board, Cimon Limitée had a motion for a writ of evocation served alleging that the absence of notice to the QFL Union was a procedural irregularity “such as to make any subsequent proceedings null and void,” and that the Board had, by dismissing without a hearing the petition for rescission setting up this illegality, “exceeded its jurisdiction.” The Superior Court on June 30 rendered judgment on this motion authorizing the issuance of a writ of summons, giving as the sole reason: [TRANSLATION] “that in the opinion of the Court the facts alleged in the motion support the conclusions prayed for.”

The Board thereupon applied by petition to two judges of the Court of Appeal as provided in s. 122 of the Labour Code, requesting that the Superior Court order be summarily annulled as issued contrary to s. 121, which reads as follows:

121. No action under article 50 of the Code of Civil Procedure or recourse by writ of prohibition,

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quo warranto, certiorari or injunction shall be exercised against any council of arbitration, court of arbitration, conciliation officer or the Quebec Labour Relations Board, or against any member of such bodies, on account of any act, proceeding or decision relating to the exercise of their functions.

This petition was dismissed by judgment of November 12, 1969, and the present appeal is brought against this decision by special leave of this Court.

The judges of the Court of Appeal stated different reasons. Brossard J. decided to dismiss the petition on the grounds that, because of the coming into force during the proceedings of important amendments to the Labour Code, the ends of justice would be best served by the dismissal. Montgomery J. for his part expressed the opinion that, as s. 121 did not mention the writ of evocation, s. 122 was not applicable.

It is argued that the writ of evocation under the present code of Civil Procedure takes the place of the writs of prohibition and certiorari under the former Code, to which sec. 121 expressly applied, and that we should by interpretation, apply it to the writ of evocation. A “privative clause” such as sec. 121 is to be interpreted restrictively, and if the legislature wished to deny recourse by evocation it might easily have amended sec. 121, as it has since done. Evocation may for most civil purposes have replaced prohibition and certiorari, but it is a new writ differing from both of the older ones.

No one appears to have pointed out to the judges of the Court of Appeal sitting in this case that in Three Rivers Boatman Ltd. v. The Canadian Labour Relations Board[1], Fauteux J., as he then was, had said speaking for this Court on May 13, 1969 (at p. 619):

[TRANSLATION] In fact, as the drafters of this new Code (of Civil Procedure) observe, article 846 combines the provisions of articles 1003 and 1292 of the previous Code regarding prohibition and certiorari respectively; and they specify that, because of the similarity existing between them, such that it was often difficult to make the distinction, these remedies

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have been combined to form a single remedy. Hence, notwithstanding its dual function, the remedy prescribed by article 846 is not new. Different in form but not in substance, this remedy does not differ significantly from the summary and effective remedies formerly available against excesses of jurisdiction by administrative tribunals.

The Labour Code, including ss. 121 and 122 as they stood when the petition for annulment was made, was enacted on July 31, 1964 and came into force on September 1, 1964, while the present Code of Procedure was enacted on August 6, 1965 and proclaimed subsequently. It is clear that previous statutes were drafted having in mind the previous Code, and in applying them consideration must be given to the third paragraph of art. 1 of the new Code:

Any reference, in an act, proclamation, commission, order-in-council or other document, to any provision of the Code of Civil Procedure or of the rules of practice existing at the coming into force of this Code or to any recourse provided therein, shall be a reference to the corresponding provision or recourse of this Code or of the rules of practice adopted thereunder.

Since art. 846 of the new Code provides a remedy equivalent to the writs of prohibition and certiorari of the prior Code, it necessarily follows that a reference to these writs in the Labour Code is now to be regarded as a reference to the writ of evocation which replaces them. A strict interpretation of the text does not mean a disregard for the clearly expressed intention of the legislature. When enacting a new Code of Procedure whereby new remedies were substituted for those provided by the former Code, the legislature surely was not obliged to revise all existing statutes one by one, and to explicitly amend each reference to those remedies. It was undoubtedly entitled to resort to a provision in general terms, such as the third paragraph of art. 1 of the new Code of Procedure. In some cases, difficulties may occur in deciding what the equivalent provision or remedy is, and the need for interpretation will then arise. Here, there is no such difficulty because a decision of this Court has established that the evocation provided for in art.

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846 is the remedy equivalent to the writs of prohibition and certiorari.

It appears to me that the reason stated by Brossard J. does not take into account that, by virtue of art. 848 of the Code of Procedure, the writ of summons results in the suspension of all proceedings: this means that while the case is pending the employees of Cimon Limitée are deprived of their right of association. I fail to see how, in view of this result, one can properly say that the ends of justice will be better served by dismissing the summary recourse specially provided to avoid this prejudice. It cannot be said too often: the suspension of proceedings is not without serious inconvenience, it often frustrates plaintiff’s recourse. With respect, I cannot accept as legally correct the reason that, as a result of legislative amendments which do not apply to this case, the ends of justice would be better served by dismissing the petition.

On the merits, it seems clear that the issuance of the writ of summons was unjustified. No basis was suggested for Cimon Limitée being entitled to invoke the rights of another party before the Labour Relations Board. When it filed its petition for rescission the QFL Union no longer had an apparence of right, the Board having dismissed its petition for certification and cancelled the certificate held by the former QFL Union. Until then, Cimon Limitée had carefully refrained from recognizing the QFL Union; how could it, once the Board had dismissed its petition for certification and cancelled the old certificate, claim that it enjoyed rights which had not been recognized? If there is a case in which the Board could find a petition ill-founded without requiring a hearing, this is certainly it. In support of its contention that the Board does not have this power, a power recognized by our decision in Komo Construction Inc. v. Quebec Labour Relations Board[2], Cimon Limitée relies on s. 118 of the Labour Code, the first paragraph of which reads as follows:

The Board, before rendering a decision on the cancellation or revision for cause of a decision or

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order by it or of any certificate issued by it, shall permit the parties to be heard and for such purpose give them, in the manner it may deem proper, notice of at least five clear days of the date, hour and place where they may be heard.

On this point the decisions of the Quebec Court of Appeal have firmly established the principle that a hearing is an absolute prerequisite only for the cancellation or revision of a decision. The Board is not deprived of the power to summarily dismiss a petition which is manifestly ill-founded in law. In a recent decision, as yet unreported, International Spring Mfg. Co. of Canada Ltd. v. Quebec Labour Relations Board, the Chief Justice of the Province of Quebec said:

[TRANSLATION] The appellant also charges the Board with failing to hold a hearing before dismissing its petition for revision, contrary to section 118 of the Labour Code. This Court has on several occasions held that this section only applies when the Board allows a petition for revision, and not when it dismisses the petition.

For these reasons I would set aside the judgments of the Court of Appeal and of the Superior Court, and vacate the writ of evocation with costs against the respondent in all courts.

Martland J. (dissenting)—The facts which give rise to the present appeal are stated in the reasons of my brother Pigeon.

In my opinion the Superior Court acted properly in authorizing the issuance of a writ of evocation in this case because the Labour Relations Board did not have the power to render a decision on the request of the respondent for cancellation of its order dated May 13, 1969, directing a vote of the respondent’s employees, without permitting the respondent to be heard.

Section 118 of the Labour Code provided that:

The Board, before rendering a decision on the cancellation or revision for cause of a decision or order rendered by it or of any certificate issued by it, shall permit the parties to be heard and for such purpose give them, in the manner it may deem

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proper, notice of at least five clear days of the date, hour and place where they may be heard.

This was an imperative direction which compelled the Board to permit a hearing before it could render a decision on the proposed cancellation of its order. While the Board reached a conclusion on the issue which was probably correct, it could not render a decision without first complying with this statutory requirement.

Counsel for the appellant supported the action taken by the Board on the basis of decisions on this point by the Court of Appeal. Their effect is stated in the reasons for judgment, not yet reported, in the case of International Spring Mfg. Co. of Canada Ltd. v. Commission des Relations de Travail du Québec.

[TRANSLATION] The appellant also charges the Board with failing to hold a hearing before dismissing its petition for revision, contrary to section 118 of the Labour Code. This Court has on several occasions held that this section only applies when the Board allows a petition for revision, and not when it dismisses the petition.

With respect, I do not agree with this interpretation of s. 118. That section says that “The Board, before rendering a decision on the cancellation or revision for cause of a decision or order…” (The italics are mine.) It does not say, as this judgment would imply, “The Board, before the cancellation or revision…” In other words, there must be a hearing before a decision is made either to cancel or not to cancel an order.

The effect of the judgment above quoted is to make the section ineffective. It means that the Board will make up its mind, before a hearing, whether or not to cancel an order. Having done so, it must order a hearing only if it has decided to cancel its order. This makes the holding of the hearing a useless formality. In my opinion it is not what the section was intended to accomplish nor does it have that meaning, as drafted.

If I am correct in this view of s. 118, the Board’s order, refusing the respondent’s request

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for cancellation of its order of May 13, 1969, was beyond its powers. Consequently, s. 121 of the Labour Code did not become operative. It read:

121. No action under article 50 of the Code of Civil Procedure or recourse by writ of prohibition, quo warranto, certiorari or injunction shall be exercised against any council of arbitration, court of arbitration, conciliation officer or the Quebec Labour Relations Board, or against any member of such bodies, on account of any act, proceeding or decision relating to the exercise of their functions.

The Board’s decision, if made in excess of its powers, was not one relating to the exercise of its functions.

In Toronto Newspaper Guild v. Globe Printing Company[3], this Court considered the effect of s. 5 of The Labour Relations Act, 1948, of the Province of Ontario. Kerwin J., as he then was, dealing with this section, said, at p. 26:

Sections similar to s. 5 of the Act, although differing in form, have been enacted by legislative bodies from time to time but it is unnecessary to set forth the decisions in which they have been considered because, if jurisdiction has been exceeded, such a section cannot avail to protect an order of the Board; and I understood that to be conceded by counsel for the appellant.

For these reasons, in my opinion, the appeal should be dismissed with costs.

Appeal allowed with costs, MARTLAND J. dissenting.

Solicitors for the appellant: Deschênes, de Grandpré, Colas, Godin & Lapointe, Montreal.

Solicitors for the respondent: Pouliot, Mercure, LeBel & Prud’Homme, Montreal.