Date: 20020909
Docket: A-164-01
Neutral citation: 2002 FCA 310
CORAM: DESJARDINS J.A.
LINDEN J.A.
NOËL J.A.
BETWEEN:
TELUS ADVANCED COMMUNICATIONS,
A DIVISION OF TELUS COMMUNICATIONS INC.,
TELUS SERVICES INC. AND TELUS ADVANCED
SERVICES INC., TELUS MOBILITY, A DIVISION OF TELUS
COMMUNICATIONS INC. AND TELUS MOBILITY CELLULAR INC.,
TELUS COMMUNICATIONS, A DIVISION OF TELUS
COMMUNICATIONS INC. AND TELUS COMMUNICATION (B.C.) INC.,
TELUS MANAGEMENT SERVICES, A DIVISION OF TELUS
SERVICES INC., TELECOM LEASING CANADA (TLC) LIMITED,
AND ISM INFORMATION SYSTEMS MANAGEMENT (B.C.) CORPORATION
Applicants
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
Heard at Vancouver, British Columbia, on May 28, 2002
Judgment delivered at Ottawa, Ontario, on September 9, 2002
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: LINDEN J.A.
NOËL J.A.
Date: 20020909
Docket: A-164-01
Neutral citation: 2002 FCA 310
CORAM: DESJARDINS J.A.
LINDEN J.A.
NOËL J.A.
BETWEEN:
TELUS ADVANCED COMMUNICATIONS,
A DIVISION OF TELUS COMMUNICATIONS INC.,
TELUS SERVICES INC. AND TELUS ADVANCED
SERVICES INC., TELUS MOBILITY, A DIVISION OF TELUS
COMMUNICATIONS INC. AND TELUS MOBILITY CELLULAR INC.,
TELUS COMMUNICATIONS, A DIVISION OF TELUS
COMMUNICATIONS INC. AND TELUS COMMUNICATION (B.C.) INC.,
TELUS MANAGEMENT SERVICES, A DIVISION OF TELUS
SERVICES INC., TELECOM LEASING CANADA (TLC) LIMITED,
AND ISM INFORMATION SYSTEMS MANAGEMENT (B.C.) CORPORATION
Applicants
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
The applicants seek judicial review of a decision of the Canada Industrial Relations Board ("the Board") which determined that the bargaining unit established under the
Canada Labour Code (the "Code") R.S.C. 1985, c. L-2, as a result of the merger of BC Telecom and Telus Corporation, had no geographic limitation and was not restricted to employees in British Columbia and Alberta and that, by inference, it incorporated potentially all of the applicants' Canadian operations.
[2] The applicants claim that the Board was without jurisdiction to decide as it did and that, if it had jurisdiction, it exercised it in a patently unreasonable manner.
The Facts
[3] BC Telecom and Telus Corporation, now known as Telus ("the applicants"), merged on or about January 31, 1999. Before the merger, BC Telecom had one collective agreement with the Telecommunications Union Workers ("TWU") for a single bargaining unit. Telus Corporation had four bargaining units with various unions.
[4] On February 1, 1999, Telus filed an application, pursuant to sections 18, 18.1, 35, 44, 45 and 46 of the Code, for a declaration that the merged corporations were a single employer and for a review and redefinition of the bargaining units (A.R. p. 84 a)).
[5] The Board commenced a review but, as required by subsection 18.1(2) of the Code, it later adjourned the proceedings to allow the parties to come to an agreement, through mediation, on the configuration of the bargaining units.
[6] In the meantime, Telus advised the respondent union that it intended to expand its business into Central and Eastern Canada as part of a project called the "National Build". This lead, on September 2, 1999, to an application by the respondent union for an order that the TWU collective agreement and certification applied to employees outside of Alberta and British Columbia. This application became the subject of another file before the Board, known as the "National Build" file.
[7] The parties, during the course of mediation, agreed, on February 17, 2000, to "one bargaining unit covering employees in Alberta and British Columbia pursuant to the current C.I.R.B. application," and to the holding of a representation vote in order to determine which union would represent the unit.
[8] The Board, on March 8, 2000, issued a Letter Decision No. 196 approving the terms of the above agreement pursuant to the provisions of subsection 18.1(2) of the Code. The Letter Decision read in part (applicants' record, vol. 2, p. 459):
In an effort to permit key portions of the Mediated Settlement to proceed as expeditiously as possible, the board wishes to advise the parties that the terms of the Mediated Settlement received by the board on February 17, 2000 as described in the letter from Mr. Stephen Kelleher, Q.C. acting in his role as mediator for the parties, is hereby endorsed by the board and attached hereto as an appendix to this letter. For all purposes of the Board, it is deemed to be dated February 17, 2000.
NOW THEREFORE the Board orders:
1. THAT there shall be one bargaining unit comprised of all employees of the employer (hereafter generally referred to as Telus) currently covered by the Board certifications of Telecommunications Workers' Union (Board Order 6401-U), International Brotherhood of Electrical Workers Union Local 348 (Board Orders 7503-U, 7504-U) and Communications Energy and Paperworkers Union of Canada (Board Order 6879-U)and currently covered by the voluntary recognition of Civic Service Union 52 (as described in the collective agreement in force between the parties). The scope line for the single bargaining unit shall be that of the TWU collective agreement.
[...]
[9] Attached was the letter from the mediator, Mr. Stephen Kelleher, Q.C., which read in part (applicants' record, vol. 2, p. 461):
I am pleased to advise that the Company, the C.S.U., Local 52, the CEP, the I.B.E.W., Local 348 and the T.W.U. have agreed as follows:
1. One bargaining unit covering employees in Alberta & British Columbia pursuant to the current C.I.R.B. application.
2. Bargaining unit "scope" shall be as defined in the T.W.U. collective agreement with the exception of field sales and telemarketing.
3. Determination of bargaining unit inclusion or exclusion of field sales & telemarketing shall be the subject of a hearing before the C.I.R.B.
4. Upon completion of no. 3 above, a representation vote shall be held for all bargaining unit employees covered by paragraphs 2 and 3 above.
5. The ballot for choice of bargaining agent shall list all unions party to the TELUS application before the C.I.R.B. Should a trade union wish to withdraw their name from the ballot they must do so by written notification to all other parties.
[Emphasis added]
[10] As per this agreement between the parties, the Board also indicated, in its order of March 8, 2000, that it would make a determination in regard to the issue of whether field sales and telemarketing positions should be included in or excluded from the unit prior to the representation vote.
[11] On March 24, 2000, after holding a hearing on the issue, the Board included those positions in the bargaining unit. Written reasons were issued on June 9, 2000. A representation vote was held in the spring of 2000 and, on June 30, 2000, the Board certified the respondent as the bargaining agent for a single bargaining unit comprised of "all employees of the employer previously covered by the Board certifications..." However, the Board reserved jurisdiction to reconsider the description of the bargaining unit once it had disposed of other questions in dispute that had arisen subsequent to the determination of the bargaining unit (applicants' record, vol. 2, p. 504).
[12] By this time, the parties disagreed as to whether the agreement did in fact limit the geographical scope of the bargaining unit. They asked the Board to interpret the precise nature of the agreement.
[13] A pre-hearing teleconference was later held, at which time the parties agreed that a number of issues would be considered by the Board during the hearings scheduled for September 18-22, 2000. One of those issues was the "appropriate specific descriptions to be ascribed to the bargaining unit covering such matters as the described geographic parameters of the bargaining unit" (paragraph 3 of the Board's reasons). The Board had previously advised the parties that the National Build issue likely could be impacted by the then current proceedings, and that it would therefore be dealing with the National Build issues at its next hearing starting September 18, 2000, to the extent that it related to the bargaining unit.
The Impugned Decision
[14] At the hearing of September 18-22, 2000, the union took the position that the mediated settlement of February 17, 2000, had not limited the extra provincial application of the certification order and that Telus's application, dated February 1, 1999, did not consider the national expansion issue. The union relied, in so saying, on the documents that had been exchanged between the parties during the mediation process and that both parties had filed before the Board. Telus, relying on the same documents, argued on the contrary that the mediated agreement restricted the scope of the bargaining unit to the geographic region of British Columbia and Alberta, and that the Board had specifically endorsed the mediated agreement, including the restriction, in its order of March 8, 2000.
[15] The Board, which rendered its decision on February 9, 2001, determined that it was not bound by any agreement made by the parties, but that it was its responsibility under sections 18.1 and 27 of the Code to ensure that the bargaining unit description was appropriate and met the necessary criteria. It indicated it had cautiously approved the agreement of the parties in its order dated March 8, 2000, and that it was unfortunate that the parties could not agree to the specific interpretation to be given to the agreement. The Board, it said, now had the responsibility to determine the precise nature of the agreement, as it had been asked to do by the parties, in order to give full effect to its March 8, 2000, order (paragraph 16 of the Board's reasons).
[16] The Board reviewed the contextual evidence surrounding the agreement, as evidenced by the documents filed by the parties during the mediation process. It was of the view that nothing would be gained in reviewing the history of the mediation itself by calling direct evidence considering the difficulty of recreating such process accurately. Mediation, it said, is normally carried out without the two (or more) parties meeting face to face, and the process makes it inherently easier for a party to partially misinterpret the intentions of the other side as they are expressed through the mediator without the direct face to face communication between the parties (paragraph 18 of the Board's reasons). To chose this process, according to the Board, might also be harmful to the future labour relations between the parties.
[17] Relying, therefore, upon the documentary evidence, an approach agreed to by the parties, the Board determined that the agreement had been drafted in the context of deciding whether one or more bargaining units should exist. That was, it said, the major issue the parties faced at the time. The unions involved in the mediation were geographically active only in these provinces, hence the casual description of the single bargaining unit as "covering B.C. and Alberta" (paragraph 20 of the Board's reasons). The Board therefore expressed the view that nothing indicated that the agreement was intended to consider the broader issue of the geographic restrictions to be placed on the single bargaining unit, as opposed to more than one bargaining unit structure. The Board further stated:
[21] [...] There is nothing, aside from the context in which these were negotiated, to indicate that the parties meant to do more or less than deal with the stumbling block that was before them at the time.
[22] As a result, the Board is unable to come to any definitive conclusion directly arising from the various documents and agreements that were placed before it, that the words used in the various agreements were to have any significance other than to resolve the issue of the moment facing the parties. The Board approved, adopted and endorsed the agreement of the parties in its order dated March 8, 2000, as it related to a single bargaining unit to cover those employees previously covered by specific certification orders of the Board. The Board did not set out any geographical restriction based on the specific representations of the employer (made in response to questions from the Board in the hearing on February 21-23, 2000) that there were no bargaining unit employees outside of Alberta and British Columbia at that time.
[23] Although the Board distinctly raised the issue of possible employees east of Alberta being affected by the order, no party was willing to deal with issue directly at that time. Presumably, no one wanted to risk destroying the delicate agreement concluded in the mediation.
[Emphasis added]
[18] The Board stated there was no specific evidence that there existed such employees outside British Columbia and Alberta. There were concerns, however, over the continued expansion of Telus's operations east of Alberta, and the Board understood from the parties that Telus's expansion had been through an extension of current operations into other provinces and also through corporate acquisition.
[19] The Board referred to section 18.1 of the Code as the authority under which the March 8, 2000, order was made. It also considered its overriding responsibility under section 27 of the Code with respect to the determination of the appropriate bargaining unit. It restated its earlier interpretation of the parties' February 17, 2000, agreement as covering only the existing operations of Telus at the time of the mediated agreement. The Board then concluded in light of Telus's plans to expand into other provinces, that the bargaining unit description should not contain any geographic restriction but should, by inference, incorporate potentially all of Telus's Canadian operations. The Board explained that a broad description would have a more practical application for the parties and would promote "meaningful, peaceful and harmonious bargaining" (paragraphs 26 and 27 of the Board's reasons). It also mentioned that an order restricting the single bargaining unit to the geographic regions of the two provinces of Alberta and British Columbia would not achieve that objective of the Code. The Board said specifically: (paragraphs 28 and 29 of its reasons):
[28] The Board must fashion a bargaining unit description that will have some practical application for the parties. The employer's application was filed at the first available opportunity to ensure that the Board was aware of the state of the employer's ever-changing operations. Given the planned and ongoing expansion of existing operations (e.g. Telus Mobility) east of Alberta, the failure by this Board to incorporate that expansion into the single bargaining unit would lead to a multiplicity of certification and/or review applications. Such is not in the interests of either party and runs counter to the responsibilities placed upon the Board by the Code.
[29] Accordingly, the bargaining unit description shall not contain any geographic restriction, but shall, by inference, incorporate potentially all of Telus' Canadian operations. It must be recognized that the bargaining unit that was agreed upon in February of 2000 only covered existing operations of Telus at the time of the mediated agreement. The parties could not agree to a bargaining unit that would include acquisitions not yet known or contemplated. However, as these existing operations expand eastward and are incorporated into the existing corporate structures, they are to be included in the single bargaining unit.
[Emphasis added]
[20] Acquisitions, as opposed to business expansion, would not, on the other hand, automatically be included in the single bargaining unit description adopted and approved by the Board. How and whether they would become folded into the bargaining unit would depend upon their integration into the corporate operations (paragraph 30 of the Board's reasons).
The Applicants' Submission
[21] The applicants submit that under the terms of section 18.1 of the Code, which is the section the Board relied on when it pronounced its order of March 8, 2000, the Board was bound to allow the parties to come to an agreement within a period considered reasonable. Once the agreement was reached, the Board could, under paragraph 18.1(2)(b), make an order it considered appropriate to implement the agreement. If, on the other hand, the Board was of the view that the agreement reached by the parties would not lead to the creation of units appropriate for collective bargaining, the Board could override the agreement. But, say the applicants, if there is an agreement, and if the Board has endorsed it, as it did in the case at bar, the Board could not review it, except under the specific terms of subsection 18.1(3) of the Code.
[22] The Board, say the applicants, concluded that there had been an agreement between the parties which contained the words "one bargaining unit covering B.C. and Alberta". It endorsed it without restriction notwithstanding the fact that the Board later said, on February 9, 2001, that it had endorsed that agreement "cautiously". The Board, say the applicants, could not denigrate or dismantle the agreement. Once endorsed, the Board had exhausted its jurisdiction.
[23] Furthermore it was patently unreasonable for the Board to find that there was no agreement on geographic scope for the bargaining unit when it had, on March 8, 2000, endorsed the parties' agreement which contained one. The geographical limitation in the agreement, say the applicants, was drafted in clear and unambiguous language and should have been respected as a matter of ordinary contract law. The Board was outside its expertise in interpreting the agreement made by the parties when it wrongly disregarded the plain words used by the parties in the agreement, and instead looked at extrinsic evidence. Consequently, they submit that the standard of correctness applies as the interpretation of the parties' agreement is a matter of general contract law falling outside the Board's specialized expertise.
[24] The applicants submit further that the Board could not rely on extrinsic documents and on the context of the agreement when the wording of the agreement was so clear. They invoke, for this purpose, the decision of the Supreme Court of Canada in Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129. Nor, add the applicants, could section 27 of the Code apply since this was not a case of certification. They therefore submit that the Board exceeded its jurisdiction when it rejected the parties' agreed definition of the bargaining unit.
[25] The Board, maintain the applicants, could only sustain the agreement as is. It was for the interested party to ask for a review of the order and to produce the necessary evidence if it so wished. The Board could not do so on its own.
The Relevant Provisions
[26] Sections 18.1 and 27 of the Code provide:
| 18.1 (1) On application by the employer or a bargaining agent, the board may review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining.
(2) If the Board reviews, pursuant to subsection (1) or section 35 or 45, the structure of the bargaining units, the Board
(a) must allow the parties to come to an agreement, within a period that the Board considers reasonable, with respect to the determination of bargaining units and any questions arising from the review, and
(b) may make any orders it considers appropriate to implement any agreement.
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18.1 (1) Sur demande de l'employeur ou d'un agent négociateur, le Conseil peut réviser la structure des unités de négociation s'il est convaincu que les unités ne sont plus habiles à négocier collectivement.
(2) Dans le cas où, en vertu du paragraphe (1) ou des articles 35 ou 45, le Conseil révise la structure des unités de négociation:
a) il donne aux parties la possibilité de s'entendre, dans le délai qu'il juge raisonnable, sur la détermination des unités de négociation et le règlement des questions liées à la révision;
b) il peut rendre les ordonnances qu'il juge indiquées pour mettre en oeuvre l'entente.
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(3) If the Board is of the opinion that the agreement reached by the parties would not lead to the creation of units appropriate for collective bargaining or if the parties do not agree on certain issues within the period that the Board considers reasonable, the Board determines any question that arises and makes any orders it considers appropriate in the circumstances.
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(3) Si le Conseil est d'avis que l'entente conclue par les parties ne permet pas d'établir des unités habiles à négocier collectivement ou si certaines questions ne sont pas réglées avant l'expiration du délai qu'il juge raisonnable, il lui appartient de trancher toute question en suspens et de rendre les ordonnances qu'il estime indiquées dans les circonstances.
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(4) For the purposes of subsection (3), the Board may
(a) determine which trade union shall be the bargaining agent for the employees in each bargaining unit that results from the review;
(b) amend any certification order or description of a bargaining unit contained in any collective agreement;
(c) if more than one collective agreement applies to employees in a bargaining unit, decide which collective agreement is in force;
(d) amend, to the extent that the Board considers necessary, the provisions of collective agreements respecting expiry dates or seniority rights, or amend other such provisions;
(e) if the conditions of paragraphs 89(1)(a) to (d) have been met with respect to some of the employees in a bargaining unit, decide which terms and conditions of employment apply to those employees until the time that a collective agreement becomes applicable to the unit or the conditions of those paragraphs are met with respect to the unit; and
(f) authorize a party to a collective agreement to give notice to bargain collectively.
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(4) Pour l'application du paragraphe (3), le Conseil peut:
a) déterminer quel syndicat sera l'agent négociateur des employés de chacune des unités de négociation définies à l'issue de la révision;
b) modifier l'ordonnance d'accréditation ou la description d'une unité de négociation dans une convention collective;
c) si plusieurs conventions collectives s'appliquent aux employés d'une unité de négociation, déterminer laquelle reste en vigueur;
d) apporter les modifications qu'il estime nécessaires aux dispositions de la convention collective qui portent sur la date d'expiration ou les droits d'ancienneté ou à toute autre disposition de même nature;
e) si les conditions visées aux alinéas 89(1)a) à d) ont été remplies à l'égard de certains des employés d'une unité de négociation, décider quelles conditions de travail leur sont applicables jusqu'à ce que l'unité devienne régie par une convention collective ou jusqu'à ce qu les conditions visées à ces alinéas soient remplies à l'égard de l'unité;
f) autoriser l'une des parties à une convention collective à donner à l'autre partie un avis de négociation collective.
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27. (1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining.
(2) In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the Board may include any employees in or exclude any employees from the unit proposed by the trade union.
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27. (1) Saisi par un syndicat, dans le cadre de l'article 24, d'une demande d'accréditation pour une unité que celui-ci juge habile à négocier collectivement le Conseil doit déterminer l'unité qui, à son avis, est habile à négocier collectivement.
(2) Dans sa détermination de l'unité habile à négocier collectivement, le Conseil peut ajouter des employés à l'unité proposée par le syndicat ou en retrancher.
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[Emphasis added]
The Legislative History
[27] Section 18.1 of the Code was added to Part I of the Canada Labour Code, Industrial Relations, in 1999, as part of an extensive revision following the report of the task force appointed by the Minister of Labour for the purpose of recommending legislative changes to the Code. The report is entitled Seeking a Balance: Review of Part I of the Canada Labour Code: (Minister of Public Works and Government Services Canada, 1995).
[28] In carrying out its mandate to look for improvements to the Code, the task force observed that changes in technology, deregulation, privatization of government operations, and increased competition were having a profound impact on collective bargaining in the federal sector thereby changing the dynamics of labour relations. It recognized that reforms were required to "allow labour and management to adjust and thrive in the increasingly global workplace" (Seeking a Balance at p. ix).
[29] With this in mind, the task force considered the issue of bargaining unit reviews. It determined that the Code contained no specific process or powers to guide the Board through such reviews and that some were needed. Specifically, the task force examined when bargaining unit reviews were necessary, and how they should unfold to ensure that the interests of the parties and the objectives of the Code are protected and that stable labour relations are achieved.
[30] The task force recommended that the Code should contain a new provision enabling the Board to reconsider bargaining units configurations for employers with more than one bargaining unit, with the power to, among other things, make interim orders in the conduct of its review or whatever consequential orders necessary to re-establish effective collective bargaining (Seeking a Balance at pp. 67-70).
[31] The task force also recognized that findings by the Board under section 35 that two or more businesses are a single employer, and findings under section 44 of the Code that a sale, lease or transfer of a business has occurred, could also result in the need to review and restructure bargaining units. It recommended that the same review process or powers, especially the requirements to resolve consequential issues flowing from the review, should apply to those situations (Seeking a Balance at pp. 71-73).
The Standard of Review
[32] Labour cases such as U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; and Ivanhoe Inc. v. U.F.C.W., Local 500, [2001] S.C.J. No. 47; (2001), 201 D.L.R. (4th) 577, stand for the proposition that when Parliament intends the Court to be better suited to determine a disputed issue, the standard is one of correctness. When, on the other hand, a matter falls within the jurisdiction of the Board, whether it is fact or law, a court of law can only intervene if the Board has acted in a patently unreasonable fashion.
[33] The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, para. 28, seems to have relegated the concept of jurisdiction to being merely one of the factors to be considered in the pragmatic and functional analysis. (See also 2002 SCC 3">Chieu v. Canada (Minister of Citizenship and Immigration, 2002 SCC 3, at para. 20-26). In this case, the provision at stake namely section 18.1 of the Code, is a new provision which cannot escape a fresh study of the applicable standard of review derived from such a pragmatic and functional analysis.
[34] The pragmatic and functional analysis developed in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and further explained in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, establishes that specific factors must be examined in determining Parliament's intent regarding the jurisdiction of an administrative tribunal and, therefore, the proper standard of review to be applied in a particular situation. Those factors are: (a) the presence of a privative clause; (b) the expertise of the administrative tribunal; (c) the purpose of the constituent legislation; and (d) the nature of the problem before the Court.
a) The presence of a privative clause
[35] Decisions of the Board are protected by a privative clause in section 22 of the Code, which reads as follows:
| 22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
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22. (1) Sous réserve des autres dispositions de la présente partie, les ordonnances ou les décisions du Conseil sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur la Cour fédérale et dans le cadre de cette loi.
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(1.1.) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board's jurisdiction, policies and procedures.
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(1.1) Le Conseil a qualité pour comparaître dans les procédures visées au paragraphe (1) pour présenter ses observations à l'égard de la norme de contrôle judiciaire applicable à ses décisions ou à l'égard de sa compétence, de ses procédures et de ses politiques.
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(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall
(a) be questioned, reviewed, prohibited or restrained, or
(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.
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(2) Sauf exception prévue au paragraphe (1), l'action - décision, ordonnance ou procédure - du Conseil, dans la mesure où elle est censée s'exercer dans le cadre de la présente partie, ne peut, pour quelque motif, y compris celui de l'excès de pouvoir ou de l'incompétence à une étape quelconque de la procédure:
a) être contestée, révisée, empêchée ou limitée;
b) faire l'objet d'un recours judiciaire, notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto.
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[36] This privative clause was described as "full", "broad" and "strong" by the Supreme Court of Canada (Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at para. 35; 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 para. 24 and 42; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at para. 31.).
[37] The effect of this privative clause was considered by the Supreme Court 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, where the Court determined that such a strongly worded clause indicated a high level of deference should be granted to the Board's decisions. To that effect, Cory J., for the Court, writes at paragraph 42:
Since the Board had jurisdiction to determine the appropriate bargaining unit and to make a suggestion as to the composition of that unit, its decision must be upheld unless it is found to be patently unreasonable or, in other words, clearly irrational. This conclusion is clearly confirmed by the broad and strongly worded privative clause set out in s. 22 of the Canada Labour Code. It has been held on numerous occasions that such a clause gives a very clear signal to the courts that decisions of a board or tribunal operating under the protection of such a privative clause must be protected from strict judicial scrutiny. See CUPE, supra; Royal Oak Mines, supra, at p. 394; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 959. [...]
[38] It would therefore appear from the language of section 22 of the Code, and the interpretation given to it by the Supreme Court, that Parliament intended to give the Board a wide latitude when exercising its extensive jurisdiction under the Code. Consequently, considerable deference must be granted to decisions of the Board, unless they fall outside the Board's area of expertise.
b) The expertise of the Board
[39] The courts have consistently recognized the expertise and experience of the Board, and labour relations boards in general, in its administration of labour relations under the Code. In Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at para. 31, the Supreme Court of Canada specifically qualified the Board as an expert tribunal when Iacobucci J., stated for the majority: "[t]he labour relations tribunal, in its federal and provincial manifestations, is a classic example of an administrative body which is both highly specialized and highly insulated from review".
[40] The extensive expertise of the Board was further recognized by the Supreme Court of Canada in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at para. 55, when Cory J. stated that "[t]he aims of the Canada Labour Code include the constructive resolution of labour disputes for the benefit of the parties and the public. The expert and experienced labour boards were set up to achieve these goals."
[41] It was also determined that the expertise and experience of the Board is a strong indicator that it is better suited than the courts to resolve labour relations disputes and balance the interests of employers, unions and employees. To that effect, Cory J. concluded in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at para. 57, that:
Labour boards have a high degree of expertise and experience in a dynamic, complex and sensitive field. Courts generally cannot equal that expertise and experience in this difficult and constantly changing area. Recognizing this, courts in judicial review have deferred to the findings of labour boards who are usually in the best position to interpret and apply their enabling legislation. The comments of McIntyre J. in this regard in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at pp. 416-17, are apposite and well worth repeating:
Our experience with labour relations has shown that the courts, as a general rule, are not the best arbiters of disputes which arise from time to time. Labour legislation has recognized this fact and has created other procedures and other tribunals for the more expeditious and efficient settlement of labour problems. [...]
[42] More specifically, the expertise of the Board in determining what constitutes an appropriate bargaining unit was also recognized by the Supreme Court of Canada 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. In that case, the Court clearly established that such an exercise falls within the Board's core field of expertise. The following passage from the reasons of Cory J. (paragraphs 28 and 33) clearly illustrates the above:
An examination of the relevant statutory provisions of the Canada Labour Code clearly reveals Parliament's intention to grant the Board broad, discretionary powers for determining the appropriate bargaining unit. A review of ss. 24, 27 and 28 of the Code, confirms that this is an exercise which falls squarely within the exclusive jurisdiction of the Board. Support for such an interpretation of the relevant provisions is also found in the literature. George W. Adams (now Justice Adams), in his excellent work Canadian Labour Law (2nd ed. 1993 (loose-leaf)), correctly states at p. 7-2: "[i]n all jurisdiction, labour boards are given a broad mandate to determine the appropriate bargaining unit". Similarly, it has been asserted that when a union seeking certification applies to the labour relations board in respect of a unit that it considers appropriate for collective bargaining, it is the labour board which must decide whether the unit applied for, or some variation of it, is appropriate for collective bargaining (Labour Law Casebook Group, Labour Law (5th ed. 1991), at p. 348).
[...]
In summary, the legislation imposes a mandatory duty upon the Board to determine whether the proposed bargaining unit is appropriate. That decision requires the Board to exercise its skills and expert knowledge in the field of labour relations. The decision must be reached in the context of the factual situation presented to the Board and not in the abstract. It is a decision that is uniquely appropriate for a labour board to make. It must now be determined whether the Board exceeded its jurisdiction by suggesting an appropriate composition for the unit.
[43] Taken in isolation from the other factors of the pragmatic and functional analysis, the extensive expertise of the Board on defining bargaining units, as recognized by the Supreme Court, would suggest the adoption of a high degree of deference to the decision of the Board on bargaining unit reviews, which is what section 18.1 of the Code is concerned with.
c) The purpose of the Canada Labour Code
[44] Generally, the Board's mandate is to contribute to and promote effective labour relations in any federal work, undertaking or business.
[45] The preamble included in Part I of the Code clearly establishes the purposes and objectives of Parliament in its enactment of the Canada Labour Code. These purposes were summarized as follows by Cory J. at paragraph 73 of his reasons in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369:
The preamble in Part I of the Canada Labour Code sets out its purposes and objectives. These include (a) the promotion of the common well-being; (b) the encouragement of free collective bargaining; (c) the constructive settlement of disputes; (d) freedom of association and free collective bargaining as the bases of effective industrial relations; (e) good working conditions and sound labour-management relations; and (f) good industrial relations which are in the best interest of Canada in ensuring a just share of the fruits of progress to all.
[46] The general purpose of the federal labour relations legislation was also described in the same case by Cory J. (paragraph 55) as including "the constructive resolution of labour disputes for the benefit of the parties and the public."
[47] However, it is the purposes and objectives of section 18.1 of the Code, which is at issue in this case, that must specifically be examined in the context of this pragmatic and functional analysis in order to determine whether the Board had jurisdiction to decide as it did.
[48] As noted earlier, section 18.1 was recently enacted by Parliament in the context of an extensive revision of the Code to empower the Board, on an application by the employer or a bargaining agent, to "review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining."
[49] The language used by Parliament in granting such powers would indicate, as was submitted by the respondent union, that the legislator intended to provide the Board with the jurisdiction to consider the appropriateness of an agreement reached between parties regarding the definition of a bargaining unit. It would therefore appear that a determination such as the one made by the Board concerning the geographical scope of the bargaining unit was intended to come within the powers granted in the provision. Consequently, a greater level of deference should be granted to the decision under review in this case, as it appears that such a determination was indeed intended to be made by the Board.
d) The nature of the problem before the Court
[50] The determination made by the Board concerned whether, in the mediation agreement reached on February 17, 2000, the parties agreed to limit the geographical scope of the bargaining unit and, if so, whether such a bargaining unit was in fact appropriate.
[51] This would be a question of mixed fact and law, as it required the Board to examine the factual circumstances surrounding the said agreement, while also applying the legal principles developed by the courts concerning what constitutes an "appropriate" bargaining unit.
[52] In Housen v. Nikolaisen, [2002] S.C.J. No. 31, 2002 SCC 33">2002 SCC 33, the Supreme Court of Canada recently examined the proper analysis to be made by the courts when faced with a question of mixed fact and law in the context of the pragmatic and functional analysis. In that case, the Court held that "matters of mixed fact and law fall along a spectrum of particularity" (paragraph 28). The Court determined that it is therefore up to the reviewing court to analyse the question before it and determine whether the issue is more legal or factual, and then grant a level of deference usually applied for such questions when reviewing the case.
[53] In this application for judicial review, it would appear that while both legal and factual determinations are engaged in the interpretation of the mediation agreement between the parties, the context of the agreement, rather than legal principles, were determinative in the conclusion reached by the Board. Indeed, the proposed expansion of Telus in Central and Eastern Canada appears to have been an important factor considered by the Board when reaching its decision as to the geographical scope of the bargaining unit. Consequently, as the nature of the problem is more factual than legal in nature, a higher level of deference should therefore be afforded to the Board's decision.
[54] In conclusion, the presence of a strong privative clause in section 22 of the Code, the specific expertise of the Board for defining "appropriate" bargaining units taken in relation to the purpose of section 18.1, and the important factual considerations at issue in the problem before the Court would indicate that a high level of deference should be afforded to the decision of the Board presently under review.
[55] In such case, a reading of section 18.1 of the Code, in light of that test, suggests that Parliament intended the Board to conduct the review of the structure of bargaining units and that its orders in such matters can only be reviewed on the basis of patent unreasonableness.
Analysis
[56] Section 18.1 of the Code empowers the Board, on an application by the employer or a bargaining agent, to "review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining".
[57] The review, in the case at bar, was triggered by Telus's application of February 1, 1999, seeking an order to rationalize the bargaining unit structure which it inherited as a result of the merger of BC Telecom Inc. and Telus Corporation. The application sought a review and redefinition of the existing bargaining units of the newly created company and its subsidiary and related corporation as well as declarations of successorship and single employer status.
[58] Paragraph 18.1(2)(a) of the Code makes it mandatory for the Board to allow the parties to come to an agreement within a reasonable time with respect to the determination of bargaining units and any questions arising from the review. The Board did precisely that. The mediation later reported that the parties had reached an agreement. Pursuant to paragraph 18.1(2)(b) of the Code, the Board then endorsed on March 8, 2000, the agreement of the parties, dated February 17, 2000, which stated:
[...] one bargaining unit covering employees in Alberta and British Columbia pursuant to the current C.I.R.B. application.
[59] This agreement may not have been as clear and unambiguous as the applicants may have wished it to be. The fact of the matter is that the parties disagreed and, considering the context, the Board, in its order of February 9, 2001, made a finding that the words in the agreement reflected the preoccupations of the parties at the time.
[60] The finding by the Board that it was "unable to come to any definitive conclusion directly arising from the various documents and agreements that were placed before it, that the words used in the various agreements were to have any significance other than to resolve the issue of the moment facing the parties" (paragraph 22 of the Board's reasons), was one of mixed fact and law as was discussed above in paragraphs 52-53.
[61] The applicants submit firstly, that the Board improperly examined extrinsic evidence to find that the parties did not agree to a geographical scope for the bargaining unit and did so in a patently unreasonable manner.
[62] This argument is difficult to accept. It was within the jurisdiction of the Board to interpret the agreement of February 17, 2000, and to disregard the calling of direct evidence by those individuals directly involved in the mediation process, considering the Board's view that such process could not reveal the intention of the parties with enough accuracy and might be harmful for the future labour relations of the parties. The Board then decided to look at the documents exchanged by the parties during that process. Since both parties have agreed with this approach, the applicants cannot complain about this process today. A further list of documents the applicants say the Board should have considered (see the applicants' memorandum of fact and law, paragraph 40), if it was truly to consider the "context" in which the agreement came into existence, are repetitive of the issue to be clarified since they usually repeat the contentious words "one bargaining unit covering employees in Alberta & British Columbia". And, while the decision of the Supreme Court of Canada in Eli Lilly & Co. v. Novopharm Ltd., relied on by the applicants, stands for the proposition that, if the words of an agreement are clear and unambiguous, those words must be given effect, the precise issue in the case at bar stems from the fact that the words of the agreement of February 17, 2000, were not found to be clear and unambiguous, but required interpretation.
[63] The Board was the only one which could determine the proper meaning to be given to these words, and a recourse to the context was within the discretion of the Board. I am therefore incapable of accepting the applicants' first argument that the Board acted in a patently unreasonable manner when examining extrinsic evidence.
[64] The applicants contend, secondly, that the law applicable to the interpretation of the agreement of February 17, 2000, was general contract law. It was not, they say, a task within the Board's specialized expertise. Therefore, the Board's interpretation of the agreement is not entitled to deference.
[65] I find, on the contrary, that the agreement of February 17, 2000, came within the realm of labour law, a matter well within the expertise of the Board, and that it is entitled to high deference. This kind of agreement arises essentially in the labour context and cannot be pegged as being "general contract law".
[66] The applicants claim, thirdly, that the Board ignored its order of March 8, 2000, in which it had confirmed without reservation that the bargaining unit would cover employees in Alberta and British Columbia. Once the Board had endorsed the agreement, and it did so without reservation, then the applicants say, the Board was functus. It had exhausted its powers under section 18.1 of the Code and could not issue its order of February 9, 2001.
[67] Again, this argument, in my view, cannot stand. It became clear that the parties could not agree with respect to the issue of the "appropriate specific descriptions to be ascribed to the bargaining unit considering such matters as the described geographic parameters of the bargaining unit" (paragraph 3 of the Board's reasons).
[68] It became also clear that the parties could not agree on that issue within the period that the Board considered reasonable. This triggered the application of subsection 18.1(3) ("if the parties do not agree on certain issues within the period that the Board considers reasonable"). The Board, under subsection 18.1(3) of the Code, was then empowered to determine "any question that arises and make any orders it considers appropriate in the circumstances". Subsection 18.1(4) is illustrative of the powers of the Board. It cannot be restrictive considering the generality of the words in subsection 18.1(3) which make it clear that the Board can, in the circumstances stated, determine "any question that arises". Subsection 18.1(3) is the umbrella under which subsection 18.1(4) operates.
[69] The Board is not limited to one order only. It can make one or more orders when it reviews the structure of bargaining units. The Board did not need to call on section 27 of the Code in support of its action. Subsection 18.1(3) of the Code allows for orders to be made "if the parties do not agree on certain issues" and when the Board considers such orders appropriate. Whether the Board had endorsed the agreement "cautiously" or not, the order of March 8, 2000, contained the same ambiguity as the one contained in the parties' agreement of February 17, 2000, since the Board simply endorsed the agreement. The Board certainly, at that stage, had the power to settle the dispute between the parties and issue its order of February 9, 2001, since it was an order related to "any question that arises" (subsection 18.1(3) of the Code).
[70] I find no merit in the applicants' three contentions.
[71] The impugned order of the Board does not constitute an excess of jurisdiction nor is it one made in a patently unreasonable manner.
Conclusion
[72] I would dismiss this application with costs.
"Alice Desjardins"
J.A.
"I agree
A.M. Linden J.A."
"I agree
Marc Noël J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-164-01
STYLE OF CAUSE: Telus Advanced Communications, a Division of Telus Communications Inc. et al. v. Telecommunications Workers Union
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: May 28, 2002
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
DATED: September 9, 2002
CONCURRED IN BY: LINDEN, NOËL JJ.A.
APPEARANCES:
John Murray FOR APPLICANTS
David Stratas
Jason Shore
Morley Shortt FOR RESPONDENT
SOLICITORS OF RECORD:
Heenan & Blaikie FOR APPLICANTS
Toronto
Shortt, Moore & Arsenault FOR RESPONDENT
Vancouver
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