J.D. Irving Ltd. v. General Longshore Workers, Checkers and Shipliners of the Port OF Saint John, 2003 FCA 266

Date: 20030613

Docket: A-96-02

Citation: 2003 FCA 266

CORAM:        ROTHSTEIN J.A.

PELLETIER J.A.

MALONE J.A.

BETWEEN:

                                                             J.D. IRVING, LIMITED

                                                                                                                                                       Applicant

                                                                                 and

                                   GENERAL LONGSHORE WORKERS, CHECKERS

AND SHIPLINERS OF THE PORT OF SAINT JOHN,

N.B., LOCAL 273 OF THE INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION

Respondent

and

PORT OF SAINT JOHN EMPLOYERS'

ASSOCIATION, INC.

                                                                                                                                                   Respondent

Heard at Fredericton, New Brunswick, on March 18, 2003

Judgment delivered at Ottawa, Ontario, on June 13, 2003

REASONS FOR JUDGMENT BY:                                                                              ROTHSTEIN J.A.

CONCURRED IN BY:                                                                                                        MALONE J.A.

DISSENTING REASONS BY:                                                                                       PELLETIER J.A.

Date: 20030613

Docket: A-96-02

Citation: 2003 FCA 266

CORAM:        ROTHSTEIN J.A.

PELLETIER J.A.

MALONE J.A.

BETWEEN:

                                                             J.D. IRVING, LIMITED

                                                                                                                                                       Applicant

                                                                                 and

                                   GENERAL LONGSHORE WORKERS, CHECKERS

AND SHIPLINERS OF THE PORT OF SAINT JOHN,

N.B., LOCAL 273 OF THE INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION

Respondent

and

PORT OF SAINT JOHN EMPLOYERS'

ASSOCIATION, INC.

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

ROTHSTEIN J.A.

INTRODUCTION

[1]                 The issue in this appeal is whether the Canada Industrial Relations Board (Board) made a patently unreasonable decision in finding that by unloading wood chips at its Pier 20 wharf facility at the Port of Saint John, New Brunswick, the applicant's operations were within the scope of the geographic certification order pertaining to the Port of Saint John issued by the Board under subsection 34(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (Code) . The result of the Board's decision is that the applicant is required to use members of the General Longshore Workers, Checkers, and Shipliners of the Port of Saint John, N.B., Local 273 of the International Longshoremen's Association (Union) to unload its wood chips at its Pier 20 wharf facility instead of its own employees.

FACTS

[2]                 The applicant is in the forest products business. Its principal products are softwood lumber and screened wood chips. The wood chips are used as raw material in the production of pulp and paper.

[3]                 The applicant owns a sawmill at Weymouth, Nova Scotia, that produces wood chips, a by-product of the production of softwood lumber. It transports screened wood chips to the Port of Saint John, New Brunswick, via an ocean-going barge which is its own property. The applicant utilizes the Pier 20 wharf facility at the Port of Saint John, which it acquired, as lessee, under a 10 year lease. It utilizes two cranes which it owns at Pier 20 to unload its wood chips from its barge. The wood chips are directly transferred by use of the cranes to trucks waiting at the Port. The work at Pier 20 was done originally by 3 crane operators and one supervisor, but subsequently by 2 employees. All the employees were those of the applicant.

[4]                 The trucking services retained by the applicant were provided by Sunbury Transport Ltd. The trucks transported the wood chips from Pier 20 to the kraft pulp mill of Irving Pulp & Paper Limited on Mill Street in West Saint John, New Brunswick.

[5]                 The wood chips remained continuously the property of the applicant until they were safely deposited on the "chip pile" at the Irving Pulp & Paper Limited site, at which time ownership of the chips passed to Irving Pulp & Paper Limited.

[6]                 On or about July 10, 2001, the Union filed an application with the Board pursuant to sections 18 and 34 of the Code asking for a determination that the applicant is engaged in the longshoring industry within the geographic certification boundaries of Local 273. If the applicant were to be found to be subject to subsection 34(1), the result would be that the applicant would become a member of the Port of Saint John Employers' Association Inc. (Employers' Association). As a member of the Employers' Association, the applicant would be bound by the terms of a collective agreement between Local 273 and the Employers' Association, that is, to utilize members of Local 273 to unload its barge rather than its own employees.

[7]                 The Board held a hearing on October 3 and 4, 2001, and issued its decision on January 21, 2002. The Board found that the applicant's operations of unloading wood chips at Pier 20 were within the scope of the Board's geographic certification order at the Port.

POSITION OF THE APPLICANT

[8]                 The applicant says the Board's decision is patently unreasonable. It says that subsection 34(1) of the Code requires that the employer be actively engaged in the longshoring industry. When a company transports its own goods in its own vessel to its own port facility using its own employees and equipment to unload goods into trucks it has retained for further delivery to its customer inland, the company is not actively engaged in the longshoring industry.

[9]                 The applicant says that the Board and its predecessor, Canada Labour Relations Board (Board), and the Courts have consistently adhered to this view. In departing from this consistent line of decisions, the Board made a patently unreasonable decision. The applicant also says that it was patently unreasonable for the Board to determine that it was actively engaged in the longshoring industry on the basis that to find otherwise would create a potential threat to labour relations at the Port.

ANALYSIS

Standard of Review

[10]            The parties are agreed that the standard of review is patent unreasonability. Nonetheless, the Court must itself determine the standard of review based on application of the pragmatic and functional analysis. See 2003 SCC 19">Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, at para. 21, citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. As this subject has been canvassed before in respect of the application of subsection 34(1) in Offshore Logistics Inc. v. International Longshoremen's Association, Local 269 (2000), 257 N.R. 338 (F.C.A.), it is not necessary to conduct an extensive analysis in this case.

[11]            The Code contains a broad privative clause in section 22. The question of the circumstances in which subsection 34(1) applies is one within the Board's expertise. The purpose of the Act, and subsection 34(1) in particular, deal with the regulation of what Cory J. referred to in International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432 at 445-46 as "the difficult and often volatile field of labour relations". The determination of whether the applicant is subject to subsection 34(1) is largely based on application of the Board's prior jurisprudence and the facts and circumstances of the case. I think all factors point to the standard of review being patent unreasonability.

Section 18 and Subsection 34(1)

[12]            Section 18 and subsection 34(1) of the Canada Labour Code provide:

[13]            By Order dated July 20, 2000, the Board had certified the Union as the bargaining agent for the employees in the longshoring industry at the Port of Saint John. The Order also continued the appointment of the Port of Saint John Employers' Association Inc., as the employer representative for all employers in the longshoring industry at the Port. The Union's application on July 10, 2001, to include the applicant as an employer, requiring it to utilize members of the Union to unload its barge at the Port, was made by way of an application under section 18 to amend the July 20, 2000, Order.

The Board's Jurisprudence

[14]            Subsection 34(1) applies where there are "employees of two or more employers actively engaged in the longshoring industry." The term longshoring is not defined in the Code, nor has the jurisprudence provided a precise definition. Generally, however, longshoring is described as the loading or unloading of a vessel and ancillary activities (See [1955] S.C.R. 529">Re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (Eastern Canada Stevedoring).

[15]            However, the jurisprudence to which the parties referred in argument has not, until this decision, held that businesses loading or unloading their own goods from their own vessels using their own employees at their own facility, are considered to be in the longshoring industry. It would seem that, while their employees may be unloading or loading vessels, i.e. doing longshoring-type work, the circumstances of their employer has not engaged subsection 34(1). Rather, the business of employers considered to be in the longshoring industry has generally been related to the commercial marine transportation of goods or general commercial shipping, i.e. performing services such as loading or unloading vessels for others for remuneration. The clearest explication of this approach is found in Maritime Employers' Association et al. (1991), 84 di 161 at 168:

It must be understood that, in using the term "longshoring industry", in the port of Hamilton, the Board intends not to draw into the certification order employers who are not in the business of longshoring, but do send out or receive products on their own account via vessels which are loaded or unloaded by their own employees. The intention is to apply the certification order in the port of Hamilton to those who are in the business of contracting to load or unload ships for others for remuneration. At this time, it will in practice apply only to the MEA members, the HHC and Seaway Terminals. Thus, for example, Stelco, which, as far as we know, is in the steel-making business, does not itself become part of the longshoring industry when its employees unload ore or coal from vessels or alternatively load steel on to ships on its own account. Stelco and the many other similarly situated enterprises that use the port will not be affected by the Board's decision. [Emphasis added]

[16]            In two more recent cases, the Board went to some length to explain why, although the employers in question were primarily in other lines of business, their employees were nonetheless found to be in the longshoring industry. In both cases, the Board appears to have taken a more inclusive approach to what constitutes engaging in the longshoring industry. The Board seems to have expanded engaging in the longshoring industry to include:

(a)        the loading or unloading of commercial vessels without a charge to others; and

(b)        the loading or unloading of commercial vessels pursuant to a contract with a specific consortium of customers, even though longshoring services were not being offered to the public.

[17]            In M & M Manufacturing Ltd., (1997), 104 di 45 at 50-51, the Board stated:

   The ongoing business of M & M Manufacturing as well as M & M Fabricators is just that: manufacturing and fabricating. Employees who perform this type of work normally come under the constitutional jurisdiction of the province where the activity takes place.

   However, in the case of the unloading and loading of the Sanderling, we are dealing with the marine transportation of goods in the true commercial sense. The vessel, owned by a company independent of M & M, carried a variety of commercial goods, and had contracts to do so. The ballast tank that was carried by the vessel was not owned by M & M. The unloading of goods from the ship at other dock sites in the Halifax harbour was performed by members of the ILA 269.

   M & M, in loading and unloading the tank in question, has for the purposes of section 34 of the Code extended itself into the longshoring industry. See Halifax Grain Elevator Limited, supra. In the geographical area of the port of Halifax, any loading or unloading of goods from commercial vessels, even if the said goods are owned by or for use in the operation of the consignee, is longshoring and must be done pursuant to the terms of the Board's geographical certification order. [Emphasis added]

[18]            In Secunda Marine Services Ltd. and Halifax Longshoremen's Ass'n, I.L.A. Local 269 (1999), 61 C.L.R.B.R. (2d) 203. the Board addressed the argument that the employer, Offshore Logistics Inc., was not engaged in general commercial shipping. Offshore Logistics Inc. provided services to a consortium of five customers and it did not provide general commercial longshoring services to the public at that time. The Board, however, found that it could provide such services to the public in the future. It was noted that the longshoring service provided to the consortium were repeated and continuous. At paragraph 71 the Board stated:

The argument that Offshore is not engaged in general commercial shipping also should be considered. While Offshore is not now in the business of supplying longshoring services to a general commercial shipping market,it does in fact supply not Mobil alone, but all of the five SOEP partners. Although Offshore does not supply longshoring services to the general commercial market, it could do so. It equally does not supply these services to a single corporate customer, but to a consortium of five. In respect of this argument, it should be recalled as well that a single act of longshoring, which loaded a general commercial vessel, was said to be caught by the certification in the M & M case. Here, although a more restricted commercial market is served, the longshoring is repeated and continuous. Offshore is "actively engaged" in longshoring. [Emphasis added]

[19]            On judicial review in Offshore Logistics, supra, the Federal Court of Appeal, upholding the Board's decision in Secunda Marine, supra, observed at paragraph 24, that the Board had determined that general commercial shipping was not an essential ingredient for a finding that employees are engaged in longshoring activities. That observation was made having regard to the specific circumstances of that case, i.e. that Offshore Logistics Inc. was not holding itself out to the public to perform longshoring services but that it could do so in the future. The Court was not affirming a general statement of law that some relationship to general commercial shipping was no longer a relevant consideration or that an employer whose own goods are being unloaded from its own vessel at its own port facility using its own equipment and employees, would be found to be subject to a geographic certification order under subsection 34(1).

[20]            It would then appear that the Board's decision in this case is the first in which it has found that an employer, whose business is unrelated to general commercial shipping, and who unloads its own product from its own vessel at its own port facility using its own employees and equipment, is subject to a geographic certification order under subsection 34(1).

The Analytical Approach to be Followed in a Review for Patent Unreasonableness

[21]            In 2003 SCC 20">Law Society of New Brunswick v. Ryan, 2003 SCC 20, the Supreme Court of Canada provided some elaboration on the approach to be followed by courts when the standard of review is reasonableness simpliciter (see paragraphs 46 to 52). I think the approach to the reasonableness simpliciter standard explained by the Supreme Court in 2003 SCC 20">Ryan is, with even more stringency, applicable when the standard of review is patent unreasonableness.

[22]            Judicial review on a standard of reasonableness requires deferential self-discipline. At paragraph 46 of 2003 SCC 20">Ryan, Iacobucci J. stated:

Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did ...

[23]            In a reasonableness simpliciter review, the question is whether a decision is broadly supported by the reasoning of the tribunal. The Court is not entitled to substitute its own reasoning on the matter. At paragraph 47 of 2003 SCC 20">Ryan, Iacobucci J. stated:

Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision maker rather than inviting the court to engage de novo in its own reasoning on the matter. Of course the answer to that question must bear careful relation to the context of the decision but the question itself remains constant.

[24]            The party seeking the review must positively show that the decision was unreasonable: see 2003 SCC 20">Ryan at paragraph 48.

[25]            A reviewing court is required to stay close to the reasons given by the tribunal in a reasonableness simpliciter review and to determine whether the reasons adequately support the decision. At paragraph 49 of 2003 SCC 20">Ryan, Iacobucci J. stated:

This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the Tribunal and "look to see" whether any of those reasons adequately support the decision.

[26]            A reasonableness simpliciter review requires that a reviewing court recognize that the specialized tribunal has primary responsibility of deciding the issue according to its own process and for its own reasons: see 2003 SCC 20">Ryan at paragraph 50.

[27]            Finally, Iacobucci J., in 2003 SCC 20">Ryan at paragraph 51, observes that in a reasonableness simpliciter review, there is no single right answer:

When a decision is taken according to a set of objectives that exist in tension with each other, there is no trade-off that is superior to all others.

[28]            In a review for patent unreasonableness, the principles warranting deference, enunciated in 2003 SCC 20">Ryan, are applicable to even a greater extent. As Iacobucci J. notes at paragraph 52, the only difference between a patent unreasonableness and a reasonableness review is in the obviousness of the defect:

In a review for patent unreasonableness, the defect must be obvious and must be able to be explained simply and easily, leaving no real possibility of doubting that the decision is defective.

Reviewing the Board's Decision

Board's Departure from Prior Jurisprudence

[29]            I have considered the reasons of the Board. The Board expressly referred to Secunda Marine, supra, which articulates factors that the Board should assess when determining whether subsection 34(1) is applicable. In Secunda Marine, the Board wrote, at paragraph 73:

The Code requires that the Board assess the frequency of the work, its regularity, its severability, whether it is longshoring or ancillary work and the potential threat to labour relations in choosing between alternative characterizations of work. A key question will be whether the employees in question are actively engaged in longshoring. They are here. Parliament intended that certification in the longshoring industry should be more inclusive and not less so in order to prevent the disruption of port operations.

[30]            Commencing at paragraph 35 of its reasons, the Board in this case expressly adopted the Secunda Marine factors and applied them to the facts. The Board found the unloading performed by the applicant to be regular and frequent. It was the only work conducted at the applicant's facility. The employees involved in the unloading were employed on a full-time basis. The nature of the work - the unloading of the barge - was the essence of longshoring work. The unloading was directed at completing the marine transport of the wood chips to the applicant's customer.

[31]            It has not been suggested that the factual findings of the Board are inaccurate. They address the factors set out in Secunda Marine and I cannot say these factual findings do not support the Board's decision as a whole.

[32]            However, the Board's reasoning does not explicitly deal with the applicant's argument which, in essence, is that its business was not related to general commercial shipping and that there was no finding of a potential supply of services to the general commercial shipping market as in Secunda Marine. The Board does state that it "cannot accept that when a company owns its own ship for the transportation of its own product, the unloading of that product in a port, from that ship, is automatically exempt from any geographic certification order in place". However, it does not provide very clear support for this important statement of principle and it does not specifically address its departure from its prior jurisprudence in cases such as Maritime Employers' Association, supra.

[33]            Does this make the decision patently unreasonable? I am unable to find that it does. Since Maritime Employers' Association, supra, the Board appears to have adopted a more inclusive approach to what constitutes engaging in the longshoring industry, as illustrated by more recent cases such as M & M Manufacturing, supra, and Secunda Marine, supra. In this case the Board has gone a step further, again expanding its approach to the longshoring industry by finding that the applicant's operations were subject to the geographical certification order, even though the applicant's business did not relate to general commercial shipping and, specifically, did not involve unloading for others for remuneration or unloading from commercial vessels.

[34]            The Board is not bound by the rule of stare decisis insofar as its own prior decisions are concerned. The Board provided reasons which included relevant factual determinations related to factors articulated in Secunda Marine. Although not without some difficulty, it is possible to follow the Board's reasoning and, therefore, it cannot be said that the Board's decision is patently unreasonable.

[35]            Even though I find the Board's decision not patently unreasonable, I think the Board's departure from statements of principle in its prior jurisprudence requires specific comment. In this case, the Board has gone further than in any other prior decision by including the unloading in the circumstances here within the geographic certification order under subsection 34(1). It has moved a considerable distance from its principle most clearly stated in Maritime Employers' Association, supra, that a geographic certification order is to apply where the employer's business is to undertake to load or unload vessels for others for remuneration.

[36]            I accept that the Board must be sensitive to many contextual considerations in determining whether the operation of an employer falls within a geographic certification order.

[37]            That being said, certainty, consistency and predictability of the law are considerations that should guide the Board in its decision-making. Where general statements of principle are set forth in its decisions, the Board should adhere to these principles in subsequent cases. Labour and management should be able to rely on statements of principle by the Board to know the rules of conduct applicable to their future activities. Having regard to the patent unreasonableness standard of review, the Board is almost always the final decision-maker and it, therefore, has a particular responsibility to provide guidance to parties through the consistent application of relevant principles. When the Board chooses to depart from these principles, the departure should be recognized and an explanation and justification for the departure should be given.

Absolute Labour Monopoly at a Port

[38]            The applicant says that the Board's decision is based upon the mistaken view that it is necessary to grant a union an absolute monopoly within the geographic area of a port in order to avoid the potential threat of labour disruption. The applicant says this is a patently unreasonable interpretation of subsection 34(1).

[39]            While the applicant's argument appears to be somewhat wide-ranging on this point, it seems that the applicant construes the Board's extension of the geographic certification order to its circumstances as tantamount to granting the Union a labour monopoly at the Port of Saint John, "driven, in part at least, by considerations of the potential for misconduct" if the Union does not have that monopoly.

[40]            In Secunda Marine, the Board does suggest that certification should be more inclusive in order to prevent disruption of port operations. However, the Board, in this case and in the Secunda Marine decision, of which the applicant is equally critical on this point, does not say that the potential threat of labour disruption requires that the geographically certified Union must be assured of an absolute labour monopoly at a port.

[41]            The concern with peaceful labour relations in the shipping industry generally, and in longshoring in particular, was recognized as early as 1955 by the Supreme Court of Canada in Eastern Canada Stevedoring, supra by Fauteux J. at 588:

Obviously, for the effectuation of its aim, i.e. peaceful labour operations in these works, undertakings and businesses within the above description, Parliament had to and did effectively assume, under the Act, the regulation of certain civil rights of employers and employees engaged in such field.

I cannot say that the Board's concern with labour peace in this case was an irrelevant consideration.

[42]            If the Board in this case had elevated labour disruption as the only consideration in a subsection 34(1) determination, it might have fettered its discretion and its reasoning might be suspect. But it had regard to other considerations it considered relevant, such as frequency and regularity of the unloading and the nature of the employees' work which was strictly unloading. For these reasons, it is apparent that the Board did not fetter its discretion. Its concern with peaceful labour relations was not an irrelevant consideration. The Board appears to have made a pragmatic decision based on the facts before it. This was not tantamount to granting the Union an absolute labour monopoly.

Interpretation of the 1999 Amendment to Subsection 34(1)

[43]            The applicant argues that the Board in this case and in Secunda Marine, supra, failed to discuss the significance of the January 1, 1999, amendment to subsection 34(1). The amendment deleted the words "employees of two or more employers in such an industry" and substituted the words "employees of two or more employers actively engaged in the industry".

[44]            In Secunda Marine, the Board did indeed address the amendment directly. It stated that the question would be whether employees doing longshoring work should be viewed as actively engaged in the longshoring industry, as opposed to the longshoring work being an incidental component of some other industry. At paragraphs 47 and 48 of Secunda Marine, the Board stated:

   The section provides that if the employees in question are in the longshoring industry, a geographic unit may be deemed appropriate for collective bargaining even if the employees are employed by different employers. The employees in the present matter are doing longshoring work. The real issue in question is whether they are actively engaged in the industry within the meaning of the Code. [Emphasis added]

   The essential question to be addressed, therefore, is whether and when employees doing longshoring work should be viewed as employees actively engaged in the longshoring industry and when it is appropriate to see the longshoring work as an incidental component of some other industry. Obviously, in making that determination, it is also of importance that the Board be guided by the text and purposes of the Canada Labour Code. [Emphasis added]

At paragraph 73, the Board stated:

   If such work were incidental and occasional only, and integrated with the primary business of the entity undertaking it, it might well escape section 34. However, all longshoring work requires careful scrutiny. Based upon a careful balancing of factors, an employer doing longshoring work at some point will find that its employees are employed in the longshoring industry within the meaning of the Code.

[45]            I cannot agree with the applicant that the Board in Secunda Marine did not interpret the amendment. In the present case, the Board made reference to Secunda Marine and expressly adopted its reasoning. It was not incumbent on the Board in this case to re-interpret the amendment.

[46]            From the Board's reasoning in Secunda Marine, however, it is not entirely clear whether the Board was of the view that the amendment required the employer or the employees to be actively engaged in the longshoring industry. The above Secunda Marine references and the considerations set out in them focus on the activities of the employees. However, the Board in Secunda Marine also takes into consideration the operations of the employer and applies similar considerations. At paragraph 71 the Board stated:

Here, although a more restricted commercial market is served, the longshoring is repeated and continuous. Offshore is "actively engaged" in longshoring.

At paragraph 73 the Board concluded:

The operation here, to a significant extent, is longshoring, the direct operation of loading and unloading ships. The operation is severed from the oil exploration business in its corporate organization and is severable in a labour relations sense. It occurs frequently and regularly. It serves a number of clients. In all of the circumstances, it is most appropriate that Offshore's present structure and longshoring operations be reflected by requiring that Offshore be included in the Port of Halifax geographic certification.

[47]            In my opinion, subsection 34(1) envisages that both the employer and the employees are actively engaged in the longshoring industry. It seems to me that if an employer is actively engaged in longshoring, its employees must also be; conversely, if the employer is not actively engaged, neither will its employees.

The Sims Report

[48]            The applicant also referred to the 1995 Task Force commissioned by the Government of Canada whose mandate it was to review Part I of the Code. The Task Force issued a report in January 1996 entitled "Seeking a Balance". This report was referred to as the Sims Report.

[49]            The applicant referred to the recommendation in the Sims Report that section 34 should be amended to make it clear that the reference to the longshoring industry applies only to employers who use a labour pool at a port and do not use their own employees. The applicant submitted that the purpose of the amendment to subsection 34(1) was to implement this recommendation of the Sims Report. The applicant did not make this argument before the Board, and before this Court, offered no analysis to support its assertion.

[50]            The linkage between the Sims Report and the 1999 amendment is somewhat attenuated. There are two sets of recommendations in the Sims Report relating to section 34. The first, outlined above, pertains to the ability of employers to use their own employees. The second, not referred to by the applicant in its materials, pertains to the choice of an employer representative for bargaining.

[51]            In fact, it is the second recommendation where the reference to an employer being active at a port is found:

Section 34 should be amended to provide that:

the act of choosing an employer representative be expressly confined to those employers active in the port or ports covered by a geographic area; [Emphasis added]

[52]            The first recommendation in the Sims Report, that section 34 be amended to permit employers to select employees from a labour pool or use their own employees, has no direct connection to the 1999 amendment to subsection 34(1). It cannot be said that the purpose of the amendment was to implement that recommendation.

CONCLUSION

[53]            In the present case, the applicant structured its operations so as to fall outside of the application of subsection 34(1). It seems that its operations would have been outside subsection 34(1) had the Board not departed from its prior jurisprudence to extend application of subsection 34(1) specifically to include the applicant's circumstances.

[54]            As I have said, the Board's decision is not patently unreasonable. However, it is obvious that it is the Board's departure from its prior jurisprudence that has given rise to the applicant's dissatisfaction with its decision and hence, this application for judicial review.

[55]            I would dismiss the application for judicial review but without costs.

                                                                                  "Marshall Rothstein"           

                                                                                                              J.A.                       

"I agree

B. Malone J.A."

PELLETIER J.A. (dissenting)

INTRODUCTION

[56]            I have had the opportunity to review the reasons of my colleague Rothstein J.A. with whom I must respectfully disagree. I have a different view of the issues raised by this appeal.

[57]            I accept the facts as they are stated in my learned colleague's reasons.

MISE EN SCÈNE:

[58]            The respondent union's (the respondent) application before the Canada Industrial Relations Board (the Board) alleged that:

... on or about July 9, 2001, the Employers, Saint John Shipbuilding Limited and CFM [Custom Fabricators and Machinists], have been engaged in longshoring activities, specifically the unloading of wood chips from a barge at the drydock premises, specifically Pier 20, located at 430 Bayside Drive, Saint John, New Brunswick.

[59]            All are agreed that the references to Saint John Shipbuilding Limited and CFM are to be taken as references to the applicant. On the basis of this allegation, the respondent sought the following relief:

... declare that Saint John Shipbuilding Limited and CFM have been, for the purposes of this Application, as of July 9, 2001, engaged in the longshoring industry for the unloading of goods from vessels within the certification boundaries of ILA Local 273 and are therefore members of the Employers Association unit which is represented by the Port of Saint John Employers Association Inc., and at all material times bound by the terms of the collective agreement between Local 273 and the Port of Saint John Employers Association, and required to respect all obligations arising under that collective agreement as of July 9, 2001, including responsibility for any damages flowing from a violation of the "manning provisions" thereof.

[60]            The application was made on the basis of what is referred to as the geographical certification order in force in the Port of Saint John which, in its material parts, provides as follows:

AND FURTHER, it is recognized by the Canada Industrial Relations Board that the General Longshore Workers, Checkers and Shipliners of the Port of Saint John, N.B., Local 273 of the International Longshoremen's Association, is the certified bargaining agent for the unit comprising:

"all employees working as longshoremen, including foremen and walking bosses, in the Port of Saint John, being that area adjacent to navigable tidal waters extending from Point Lepreau, N.B., on the south, to Cape Spencer, N.B., on the east, and extending through the City of Saint John and up the Saint John River to the boundary of City of Saint John, N.B."

AND FURTHER the Canada Industrial Relations Board continues the appointment of the Port of Saint John Employers Association, Inc. as the employers' representative for all employers in the longshoring industry in the Port of Saint John, N.B.

[61]            That order was made under the authority of subsection 34 of the Canada Labour Code, R.S.C. 1985 c. L-2 ( the Code), which is reproduced below:

[62]            The respondent based its application upon sections 18, 21 and 34 of the Code.    Sections 18 and 21 are reproduced below:

ANALYSIS:

[63]            Before examining the issue which was before the Board, it is necessary to review the orders which the Board can make under section 34. Subsection 34(1) authorizes the Board to make a certification order, which is an order defining an appropriate bargaining unit and certifying a union as the bargaining agent for that unit. In the normal course, the employer of the members of the bargaining unit is then bound to bargain the terms of their employment with the union. The significance of a geographic certification order is that the bargaining unit is defined in terms of employees in a geographical area as opposed to employees of a single employer.

[64]            As a result of the fact that many employers may employ members of the bargaining unit, section 34(3) authorizes the Board to make a second kind of order, an order designating an employers' representative organization to bargain with the union on behalf of all employers of members of the bargaining unit. For ease of reference, I will refer to this second order as a representation order. The objective is to create a single bargaining relationship governing the employment of members of the bargaining unit. Consequently, subsection 34(5) deems the employers' representative organization to be the employer of the employees in the bargaining unit, subject to all the rights and responsibilities of an employer under Part I of the Code.

[65]            These two orders are conceptually different even though they can be contained in a single document, as they were in this case. That document has consistently been referred to as a geographic certification order, without distinguishing between its two component orders.

[66]            With that background in mind, I turn to an examination of the task which was before the Board. Notwithstanding the references in the respondent's application to sections 18 and 21 of the Code, the application before the Board did not request any variation of a previous order pursuant to section 18. The record does not contain a copy of the order made by the Board in disposing of the respondent's application but I can see no reason why the Board would amend its order for the purpose of naming a specific employer when no other employer is mentioned in the order. To the extent that a declaration as to the scope of one of its orders is incidental to the "attainment of the objectives of the Act", it may be that the authority to entertain the respondent's application arose under section 21. But the disposition in issue in such a case is the order, not section 21.    As for section 34, there is already a certification order and a representation order in place, so that the issue is not whether one should be made pursuant to section 34(1) or 34(3) of the Code. The Board identified the question before it as "whether the unloading of certain wood products at Pier 20, as would be subsequently outlined in detail in the evidence, fell within ILA's geographic certification order that covers the Port of Saint John."(see para. 8). This makes it clear that it is the scope of the geographic certification order which is in issue (as opposed to section 34 itself) but it does not tell us which of the two orders which make up the geographic certification order is in question.

[67]            However, one notes that the Board's formulation of the issue makes no reference to whether the Irving employees were members of the appropriate bargaining unit. In fact, the respondent's application does not refer to the applicant's employees, or to their relationship to the appropriate bargaining unit. It is significant that the respondent does not claim bargaining rights on behalf of the applicant's employees. In argument before us, counsel for the respondent disavowed any interest on the part of his client in bargaining collectively on behalf of the applicant's employees.

[68]            A careful reading of the respondent's application shows that it is founded entirely upon the representation order which declares that the Port of Saint John Employers Association (the "employers' representative organization") is the "employers' representative for all employers in the longshoring industry in the Port of Saint John, N.B.". The application proceeds on the basis that if the applicant is in the longshoring industry in the Port of Saint John, then it is bound by the representation order designating the employers' representative organization. If the applicant is represented by the employers' representative organization then it is bound by the terms of the collective agreement negotiated by that organization. That collective agreement requires employers to obtain their labour from the respondent. This is the source of the common understanding that the success of the application would require the applicant to obtain the labour to unload its barge from the respondent.

[69]            It is worth repeating the terms of the respondent's application at this point. It begins by alleging that:

... on or about July 9, 2001, the Employers, Saint John Shipbuilding Limited and CFM [Custom Fabricators and Machinists], have been engaged in longshoring activities, specifically the unloading of wood chips from a barge at the drydock premises, specifically Pier 20, located at 430 Bayside Drive, Saint John, New Brunswick.[emphasis added]

[70]            This gives rise to the following request for relief:

... declare that Saint John Shipbuilding Limited and CFM have been, for the purposes of this Application, as of July 9, 2001, engaged in the longshoring industry for the unloading of goods from vessels within the certification boundaries of ILA Local 273 and are therefore members of the Employers Association unit which is represented by the Port of Saint John Employers Association Inc., and at all material times bound by the terms of the collective agreement between Local 273 and the Port of Saint John Employers Association, and required to respect all obligations arising under that collective agreement as of July 9, 2001, including responsibility for any damages flowing from a violation of the "manning provisions" thereof. [emphasis added]

[71]            It is clear from this that it is not the certification order, narrowly defined, which is the foundation for the respondent's application.    There is no reference to the work done by the employees of the applicant nor to their status with respect to the appropriate bargaining unit. The only issues raised relate to the status of the employer and to the representation order. It is clear from the application itself that the respondent was seeking a declaration that the employer was bound by the representation order.

[72]                Subsection 34(3), reproduced below for ease of reference, authorizes the Board to make a representation order with respect to the employers of the members of the appropriate bargaining unit:

[73]            But the Board has made a representation order which deals with employers in the longshoring industry:

AND FURTHER the Canada Industrial Relations Board continues the appointment of the Port of Saint John Employers Association, Inc. as the employers' representativefor all employers in the longshoring industry in the Port of Saint John, N.B. [emphasis added]

[74]            It is, in my view, apparent on the face of subsection 34(3) that the Board can only make a representation order with respect to employers of employees in the appropriate bargaining unit. Paragraph 34(3)(a) allows the Board to compel employers of employees in the appropriate bargaining unit to select an employer representative. Paragraph 34(3)(b) permits the Board to make a representation order with respect to "those employers", namely those who employ employees in the appropriate bargaining unit. An order which purports to extend to all employers in the longshoring industry in the Port of Saint John, without reference to whether or not they employ members of the appropriate bargaining unit clearly exceeds the authority conferred on the Board by paragraph 34(3)(b).

[75]            But if the employer is engaged in the longshoring industry, surely its employees are employed as longshoremen, and therefore fall within the appropriate bargaining unit. Such reasoning would engage the terms of the certification order. But such an argument is only relevant if the respondent is prepared to bargain collectively on behalf of those employees who fall within the definition of the appropriate bargaining unit. Where the respondent says, as it did here, that it does not claim to bargain collectively on behalf of the applicant's employees who are engaged in longshoring, then it must be taken to concede that such employees are not members of the appropriate bargaining unit.

[76]            Who, then, are the members of the appropriate bargaining unit? They can only be the respondent's members (which I take to include those on whose behalf it bargains collectively, even if they are not full members of the respondent. (See Re Brewer, [2000] CIRB No. 54 at para. 5 as it relates to the Port of Halifax). It is on their behalf that the application underlying this proceeding was made. By sweeping the applicant into the employer group and binding it to the collective agreement, the respondent is protecting the work jurisdiction claimed by its members. It is clearly not acting on behalf of the applicant's employees who will be displaced by the respondent's members.

[77]            The respondent's position is consistent with the basis upon which geographic certification orders are made. The pool of labour from which longshoring contractors draw their labour is the union's membership. A certification order pursuant to subsection 34(1), accompanied by a representation order pursuant to subsection 34(3) creates a single table bargaining structure which ensures that all employers deal with the respondent on the same basis, and have access to union labour on the same terms. Were the respondent to take the position that the applicant's employees were members of the appropriate bargaining unit, it would be trading its members claims to work jurisdiction for the bargaining rights of non-members, a decidedly counter-productive trade from its point of view.

[78]            In the end result, the respondent succeeded by persuading the Board that the applicant fell within the terms of its representation order. But the Code does not permit the Board to make the representation order which it made.

[79]            The error which thus appears from the record is that the Board found that its representation order applied to the applicant. But the representation order which it made exceeded the authority given to it by the Code.    Had it made the representation order which the Code authorized it to make, it could not have found that that order extended to the applicant since the applicant did not employ members of the appropriate bargaining unit. The fundamental error is the representation order made by the Board, an error which involves an implicit interpretation of the power given to it by subsection 34(3) of the Code. Consequently, I see the error as being one of statutory interpretation, a pure question of law which the Board, had it addressed the question, could have phrased as follows: Does subsection 34(3) of the Code authorize the Board to make a representation order which binds all employers in the longshoring industry, even those who do not employ members of the appropriate bargaining unit? The Board has made an order from which we may infer that it would answer that question "Yes".

[80]            Consequently for purposes of the pragmatic and functional analysis, the nature of the question, the fourth criterion, is a pure question of law. The starting point of the pragmatic and functional analysis is the presence or absence of a privative clause. The Board is protected by a strong privative clause which suggests considerable deference. The second question to be considered is the expertise of the Board. It can safely be said that in matters of labour relations, the Board is an expert tribunal. But as pointed out earlier, the error is an error in the interpretation of its statute. On that issue, the Board has no more expertise than this Court since the question is a pure question of law which does not engage the Board's labour relations expertise. We are not dealing with a situation where the statute is silent on the question, a situation which would allow the Board to bring its expertise to bear on the issue and to supply Parliament's omission. This is a case where Parliament has imposed a limitation and the question is whether the order made complies with the limitation. As was pointed out in 2003 SCC 28">Barrie Public Utilities v. Canadian Cable Television Association, 2003 SCC 28, [2003] S.C.J. No. 27:

[para16]      Deference to the decision maker is called for only when it is in some way more expert than the court and the question under consideration is one that falls within the scope of its greater expertise (2003 SCC 19">Dr. Q., at paras. 28). In my view, this is not such a case. The proper interpretation of the phrase "the supporting structure of a transmission line" in s. 43(5) is not a question that engages the CRTC's special expertise in the regulation and supervision of Canadian broadcasting and telecommunications. This is not a question of telecommunications policy, or one which requires an understanding of technical language. Rather, it is a purely legal question and is therefore, in the words of La Forest J., "ultimately within the province of the judiciary" (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at paras. 28). This Court's expertise in matters of pure statutory interpretation is superior to that of the CRTC. This factor suggests a less deferential approach.

[81]            The next question is the nature and purpose of the statute and the particular disposition in question. This does not require an extensive analysis of the statutory purposes because Parliament has expressed a limitation on the Board's authority which the Board has exceeded.    Because this is an interpretation of its enabling legislation, the Board's decision on this question is likely to have precedential value, which suggests a lower standard of deference:

[para 77]       The different kinds of question that an administrative agency must decide in the course of discharging its statutory mandate are not necessarily subject to the same standard of review. Thus, for example, since a tribunal's interpretation of its enabling legislation is likely to have a precedential effect, it is apt to attract less judicial deference than a simple application of the statute to the facts of a particular case that does not purport to decide some more general question of law: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraphs 36-37.[emphasis added]

Society of Composers, Authors and Music Publishers in Canada v. Canadian Association of Internet Providers, et al., [2002] 4 F.C. 3

[82]            The Board may have policy reasons which drive it to craft an order in terms wider than its enabling legislation. But policy choices are to be made in the context of the framework provided by Parliament, rather than supplanting it:

[para42]      The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent. In my view, the CRTC relied on policy objectives to set aside Parliament's discernable intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole. In effect, the CRTC treated these objectives as power-conferring provisions. This was a mistake.

           Barrie Public Utilities v. Canadian Cable Television Association , supra

[83]            Consequently, the nature of the legislation and the particular provision is not such as to call for a more deferential approach. Of all the factors considered, the only one suggesting a more deferential approach is the presence of the privative clause. On a consideration of all the factors I find that the standard of review in relation to the question of the Board's authority to make the representation order which it did is correctness.     In my view, the privative clause cannot protect an error on a matter where the standard of review is correctness. This is the significance of Bastarache J.'s characterization of jurisdictional questions as those which a tribunal must answer correctly:

[para. 28] ... To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis.

Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982.

[84]            This case is very much like Halifax Longshoremen's Assn., Local 269, v.Offshore Logistics Inc. [2000] F.C.J. No. 1155 (Offshore Logistics) in which this Court upheld the decision of the Board. Offshore Logistics was an application for judicial review of a decision of the Board, reported as Secunda Marine Services Ltd, Re [1999] CIRB No. 16.    Offshore Logistics was also a case about whether an employer was caught by the terms of a geographic certification order.    But in that case, the Board seems to have been dealing with the certification order, narrowly defined, rather than the representation order, as was the case here. The first ground of attack upon the Board's order was that its finding that Offshore's employees were engaged in longshoring was patently unreasonable (para. 3). The Court held that the decision as to whether Offshore's employees were engaged in longshoring was one that Parliament intended to be left to the Board (para. 18). The Court refused to accept the argument that the finding that Offshore's employees were engaged in longshoring was unreasonable (para. 28). The balance of the decision dealt with issues of procedural fairness and the Board's jurisdiction over the employer's labour relations. It appears from the language used by the Court that the issue was whether Offshore's employees fell within the appropriate bargaining unit. There was no suggestion that the Board did not have the jurisdiction to make the certification order which it did.    As a result, I do not see the decision in Offshore Logistics dealing with an order made under subsection 34(1) as inconsistent with my disposition of this application dealing with an order made under subsection 34(3).

[85]            I would therefore quash the decision of the Board and remit the matter to it to be determined on a basis consistent with these reasons, specifically, that the designation of the employers' representative organization binds only employers in the longshoring industry who employ members of the appropriate bargaining unit.

                                                                              "J.D. Denis Pelletier"             

J.A.

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   A-96-02

STYLE OF CAUSE:                                         J.D. Irving, Limited - and -General Longshore Workers, Checkers and Shipliners of the Port of Saint John, N.B., Local 273 of the International Longshoremen's Association -and- Port of Saint John Employers' Association, Inc.

PLACE OF HEARING:                                   Fredericton, New Brunswick

DATE OF HEARING:                                     March 18, 2003

REASONS FOR JUDGMENT :     ROTHSTEIN J.A.

CONCURRED IN BY:                                       MALONE J.A.

DISSENTING REASONS BY:                         PELLETIER J.A.

DATED:                      June 13, 2003

APPEARANCES:

Mr. William B. Goss, QC                                                 FOR THE APPELLANT

Mr. Robert D. Breen, QC                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

Stewart McKelvey Stirling Scales

Saint John, New Brunswick                                             FOR THE APPELLANT

Pink Breen Larkin

Fredericton, New Brunswick                                           FOR THE RESPONDENT