Metropolitan Life Insurance Co. v. International Union of Operating Engineers, [1970] SCR 425

Supreme Court of Canada

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, [1970] S.C.R. 425

Date: 1970-01-27

Metropolitan Life Insurance Company (Plaintiff) Appellant;

and

International Union of Operating Engineers, Local 796 (Defendant) Respondent.

1969: December 12, 15, 16; 1970: January 27.

Present: Cartwright C.J. and Martland, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour relations—Certification—Labour Relations Board failing to deal with question as to whether employees in question members of union at relevant date—Board deciding question not remitted to it and thereby stepping outside jurisdiction—Certification cannot stand—The Labour Relations Act, R.S.O. 1960, c. 202.

The respondent union made application to the Ontario Labour Relations Board for certification as bargaining agent for certain employees of the appellant company in its building division at Ottawa engaged in building maintenance and cleaning operations. The company opposed the application on the ground that “the constitution of the applicant...can only be interpreted to exclude from membership in the union those persons claimed by the applicant in the instant application, and therefore, for the Board to entertain such application, would not only represent acceptance for membership of persons in excess of the specific provisions of the applicant’s constitution, but indeed, would be in direct conflict therewith.”

The Board rejected the company’s submission and granted certification. A motion for an order by way of certiorari removing into the Supreme Court and seeking to quash the certificate of the Board was dismissed, and, on appeal, the Court of Appeal

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upheld the decision of the lower Court. With leave, the company then appealed to this Court.

Held: The appeal should be allowed, the orders of the Courts below set aside and an order issued quashing the certificate of the Board.

The source of the Board’s jurisdiction to issue the impugned certificate and the nature of the task imposed upon it were to be found in subss. (1), (2) and (3) of s. 7 of The Labour Relations Act. No vote was taken and it was therefore a condition precedent to the Board having power to grant the union’s application that it be satisfied that more than 55 per cent of the employees in the bargaining unit were members of the union at the time the application was made.

The Board had jurisdiction to enter on the inquiry and the certificate which it granted was, on its face, one which the Board had jurisdiction to issue. If the Board had addressed itself to the question whether 55 per cent of the employees were members of the union within the meaning of s. 7(3) of the Act its decision could not have been interfered with by the Court although it appeared that the Board in reaching it had erred in fact or in law or in both.

But it was clear that the Board did not perform the task imposed upon it by s. 7. It failed to deal with the question remitted to it (i.e. whether the employees in question were members of the union at the relevant date) and instead decided a question which was not remitted to it (i.e. whether in regard to those employees certain conditions had been fulfilled).

In so proceeding the Board, by asking itself the wrong question, had stepped outside its jurisdiction and the privative clauses of the Act (ss. 79 and 80) could not avail to protect its certificate.

Anisminic Ltd. v. Foreign Compensation Commission and Another, [1969] 2 W.L.R. 163; Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Co., [1952] O.R. 345, affirmed [1953] 2 S.C.R. 18, referred to.

APPEAL from an order of the Court of Appeal for Ontario[1], dismissing an appeal from an order of Fraser J. Appeal allowed.

W.B. Williston, Q.C., and B.H. Stewart, for the appellant.

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S.L. Robins, Q.C., and R. Koskie, for the respondent.

C.L. Dubin, Q.C., for the Ontario Labour Relations Board.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This is an appeal by Metropolitan Life Insurance Company (hereinafter referred to as the Company) from an order of the Court of Appeal for Ontario¹ dated November 27, 1968, which dismissed an appeal by the company from an order of Fraser J. dated February 29, 1968, dismissing the company’s motion for an order by way of certiorari removing into the Supreme Court and seeking to quash a certificate of the Ontario Labour Relations Board (hereinafter referred to as the Board), dated August 29, 1967, by which the Board certified International Union of Operating Engineers, Local 796 (hereinafter referred to as the Union) as the bargaining agent of all employees of the company in its building division at Ottawa, engaged in building maintenance and cleaning operations, save and except foremen, persons above the rank of foreman, office staff and persons regularly employed for not more than twenty-four hours per week.

The appeal is brought pursuant to leave granted by the Court of Appeal for Ontario on January 13, 1969.

On February 20, 1967, the union made application to the Board for certification as bargaining agent for certain employees of the company at its building division located in the City of Ottawa, alleging that there were thirty employees in the proposed bargaining unit and that twenty-one of these were members of the union.

The company opposed this application on the ground stated in a letter from its solicitors to the Board dated May 9, 1967, as follows:

It is the respondent’s position that the Constitution of the Applicant, including Articles X and XIII can only be interpreted to exclude from membership in the Union those persons claimed by the Applicant in the instant Application, and therefore, for the Board to entertain such Application, would not only

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represent acceptance for membership of persons in excess of the specific provisions of the Applicant’s Constitution, but indeed, would be in direct conflict therewith.

The attack on the Board’s certificate is based on the manner in which this objection was dealt with.

The Board delivered lengthy and detailed reasons for rejecting the company’s submission. It stated that the company’s argument was based on the erroneous assumption that in determining membership in a trade union for the purposes of s. 7 of The Labour Relations Act (hereinafter referred to as the Act) the Board is bound by the provisions of the particular union’s constitution. The reasons continue that the Board has enunciated a policy of dealing with the question as to whether an employee is a member of a union applying for certification as follows:

Upon an application for certification the Board will require the applicant to submit evidence that each employee said to be a member of the applicant has

(1) applied for membership in the applicant, and

(2) indicated his acceptance of membership and his assumption of the responsibilities of membership

(a) by paying to the applicant, on his own behalf, an amount of at least $1.00 in respect of the prescribed initiation fee or monthly dues of the applicant,

or

(b) by presenting himself for initiation or by taking the members’ obligation, or by doing some other act which, in the opinion of the Board, is consistent with membership in the applicant.

After stating that the Board has acted in accordance with this policy, the reasons continue:

An examination of Article X of the constitution of the applicant makes it quite clear that a person who signs an application for membership and pays a dollar does not thereby become a member of the union within the meaning of the constitution. There can be no question, having regard to the Board’s extensive experience in these matters, that the same is true of most other union constitutions.

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The point of all this, of course, is that there is a long-standing policy of the Board under which, in deciding whether for purposes of section 7 of the Act a person is a member of an applicant trade union, the Board has set its own standard of membership and has not considered constitutions of applicant unions except in the circumstances set out below.

The “circumstances set out below” appear to be those in which the constitution contains “a clear-cut prohibition or express exclusion with respect to a certain class of persons”.

Following the statement of reasons why the Board finds this practice desirable, the reasons continue:

It is for these reasons then, that, in ascertaining whether employees are “members” for the purposes of section 7 of the Act, the Board has felt it desirable to set a uniform standard rather than be bound by requirements in union constitutions for becoming a member of the union. It is argued, however, that the Board must look to the constitution of a union for the purpose of construing the same word, “members” qua the eligibility of an applicant to become a member in a trade union. This, in our view, would be entirely inconsistent with Board policy regarding requirements for membership and we are not prepared to depart from this latter policy. In other words, whether the word “members” in section 7 of the Act is viewed from the point of view of union constitution requirements for becoming a member or union constitution provisions respecting eligibility, the Board, consistent with its long-standing policy, does not regard itself as bound by such requirements or provisions when interpreting the word “members” in section 7 of the Act. Consequently, there is no need to deal with the argument of counsel for the respondent on this point because it is based on the premise that the Board is so bound.

After examining a number of decisions the Board continued as follows:

In sum, then, in determining whether an applicant trade union is capable of representing all the employees in an appropriate bargaining unit, what the Board is concerned with is whether the union accords all such employees full rights and privileges as members. If the evidence supports this conclusion, then the Board is prepared to find that such employees are eligible to become members (and, depending on the evidence, that they are members) for the purposes of section 7 of the Act and, further, that

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the trade union is capable of representing all the employees in the unit. We hasten to add, however, that if it should subsequently come to light that employees in the bargaining unit are not being accorded full status as members of the union, then, naturally, the Board would have to review its decision in the particular case and would be obliged to take this into account in subsequent cases. However, the possibility that this may occur in the future is no ground, in our view, for withholding bargaining rights in any particular case.

Proceeding on the basis outlined in the above excerpts from its reasons the Board found:

...that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on February 28, 1967, the terminal date fixed for this application and the date which the Board determines, under section 17(2) (j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

and granted certification accordingly.

Fraser J. after stating the nature of the application made before him continued as follows:

A copy of the Constitution of the International Union of Operating Engineers, was filed as exhibit C to the affidavit of J.W. McKinnon. From an examination of that Constitution it is apparent that it does not provide for the admission to membership of persons other than operating engineers. I refer particularly to Article 10, section 1, Article 13, section 1, and Article 1, section 2. It is also clear that the employees in the proposed bargaining unit were not operating engineers. As these employees were not eligible for membership under the Union Constitution no officers of the Union had the power to make them members as between themselves and the Union. This was not in dispute and has been so held in Martin v. Scottish Transport and General Workers Union, [1952] 1 All E.R. 691, House of Lords, Orchard et al v. Tunney, [1957] S.C.R. 436, and Faramus v. Film Artistes’ Association, [1964] 1 All E.R. 25, House of Lords.

The Board set out its reasons for its decision very fully and carefully. It is not suggested that the employees in the bargaining unit are members in the full legal sense of the word as between themselves and the Union. However, the Board has in practice certified Unions, such as the present respondent, to

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represent employees other than operating engineers. It has an established policy in such matters which is explained in its reasons. No purpose would be served to examine these reasons in detail, except to say that the Board has applied certain criteria which it regards as practically acceptable and where these have been satisfied has not considered itself bound by the Constitution of the Union. This application therefore raises directly the question whether an error in law, apparent on the face of the record, made by the Board in determining who are members of the applicant Union is reviewable on certiorari.

Before us, and in the Court of Appeal, counsel for the appellant stated that, in view of the terms of ss. 79 and 80 of the Act, he could not and did not rely on the submission that the Court has power to quash the certificate of the Board for error in law appearing on the face of the record.

Fraser J. after making a careful examination of numerous authorities stated the main ground of his decision as follows:

I now turn to the sections of the statute conferring jurisdiction. Section 7(1) supra, requires the Board to determine the number of employees who are members of the Union. Subsection (3) of that section requires the Board to certify the trade union if satisfied that more than 55% of the employees in the bargaining unit are members. Section 79 supra, gives the Board exclusive jurisdiction to exercise the powers conferred on it by the Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Board thereon is final and conclusive for all purposes. There is nothing in the context to qualify the effect of those sections. By them the legislature has entrusted exclusive powers in the defined area to the Ontario Labour Relations Board. The question the Board had to determine in the instant case fell squarely within that area. There being a privative clause expressly taking away the right to certiorari, and no excess or denial of jurisdiction, certiorari will not lie on the ground of an error in law in a matter entrusted to the exclusive jurisdiction of the Board. To use what Judson J. in Galloway Lumber Co. Ltd. v. The Labour Relations Board of British Columbia and International Woodworkers of America, Local No. 1-405, [1965] S.C.R. 222, at page 224, referred to as the established vocabulary in this branch of the law, there is nothing “collateral, preliminary, or

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jurisdictional” and the question is of the “very essence” of the matter into which the Board had to inquire.

After considering and distinguishing a number of other cases which had been cited to him the learned judge concluded:

In the instant case the Board erred in law. For the reasons stated I am of opinion that the error was in a matter within its exclusive jurisdiction and the privative provisions of section 80 prevent any review of that error on certiorari. The application must therefore be dismissed.

The reasons for the unanimous judgment of the Court of Appeal were delivered by Laskin J. A. While those reasons must of course be read in their entirety, it appears to me that the ground of decision is sufficiently indicated in the following passages:

...The Board was charged with a fatal jurisdictional error in making its determination of the union’s membership strength among the employees without accepting as binding upon it the eligibility provisions of the union’s written constitution.

It is disputable that the employees in question could not qualify for membership under the eligibility terms of that constitution. Nonetheless, the union invited them to become members; and a sufficient number did so, in conformity with the Board’s requirements as to proof of membership, to warrant certification without a vote. A senior union officer testified that these employees had full membership, with all the rights and privileges attendant thereon, and that employees elsewhere had been similarly accepted into membership although not having the “engineering” or related qualifications specified in the constitution.

* * *

In my opinion, there was no reviewable error of law committed by the Board; it made all the necessary determinations confided to its judgment under its governing statute in the discharge of the functions with which it was invested; and however incorrect they may appear to a supervising Court, they are

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beyond question not only under section 80 but, entirely apart therefrom, under section 79 of the Ontario Labour Relations Act.

* * *

My construction of the relevant legislative provisions leaves me in no doubt that the Board was invested with jurisdiction to decide conclusively, inter alia, the question of union membership, and to make a certification order in the light of that decision. The provisions in question do not predicate the Board’s certification function on an ultimate Court determination of the meaning of union membership. Certainly, there may be difficulty in particular cases in determining, as a matter of statutory construction, whether certain questions that fall to be decided by a tribunal are preconditions of its decisional authority, and hence must be, in the view of a supervising Court, correctly decided. The line can be a fine one, as is evidenced from the candid judgment of Freedman J.A. in Parkhill Bedding & Furniture Ltd. v. International Molders and Foundry Workers Union (1961), 26 D.L.R. (2d) 589. In the present case, there is no doubt in my mind on which side of the line the matter in issue herein falls.

I find myself unable to agree with the conclusion arrived at by the Courts below and I will endeavour to state my reasons as briefly as possible.

I do not think that there is any serious dispute as to the principles which guide the Court in deciding whether it has the power and the duty to review the decision of an inferior tribunal when the statute creating that tribunal contains provisions similar to those set out in ss. 79 and 80 of the act. The difficulty which sometimes gives rise to a difference of judicial opinion is as to the application of those principles to a particular set of facts.

In the case at bar the source of the Board’s jurisdiction to issue the impugned certificate and the nature of the task imposed upon it are to be found in subss. (1), (2) and (3) of s. 7 of the Act, which read as follows:

7. (1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the union who

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were members of the trade union at such time as is determined under clause j of subsection 2 of section 77.

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots of all those eligible to vote are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

No vote was taken land it was therefore a condition precedent to the Board having power to grant the union’s application for certification that it be satisfied that more than fifty-five per cent of the employees in the bargaining unit were members of the union on February 28, 1967.

It is clear that the Board had jurisdiction to enter on the inquiry and that the certificate which it granted was, on its face, one which the Board had jurisdiction to issue.

If the Board had addressed itself to the question whether fifty-five per cent of the employees were members of the union within the meaning of s. 7(3) of the Act its decision could not have been interfered with by the Court although it appeared that the Board in reaching it had erred in fact or in law or in both.

But it is clear from the reasons of the Board read as a whole and particularly from the excerpts therefrom which I have quoted above that the Board did not perform the task imposed upon it by s. 7. Instead of asking itself the question set out in the preceding paragraph the Board embarked on an inquiry as to whether in regard to the requisite number of employees the following conditions had been fulfilled, (i) that the employee had applied for membership in the applicant, (ii) that the employee had indicated his acceptance of membership and his assumption

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of the responsibilities of membership by paying to the applicant, on his own behalf, at least one dollar in respect of the prescribed fees or dues, (iii) that the constitution of the applicant did not contain an express prohibition of the employee being admitted to membership and (iv) that the union accorded to the employee full rights and privileges as a member. The reasons of the Board make it plain that on being satisfied that these four conditions had been fulfilled in regard to any employee it would treat that employee as a member of the union for purposes of certification even if it were plain from the terms of the union’s constitution and from the nature of the qualifications of, and the duties performed by, such employee that he was not, and indeed could not be, a member of the union.

In proceeding in this manner the Board has failed to deal with the question remitted to it (i.e. whether the employees in question were members of the union at the relevant date) and instead has decided a question which was not remitted to it (i.e. whether in regard to those employees there has been fulfilment of the conditions stated above).

I regard the law as well settled that in so proceeding the Board, by asking itself the wrong question, has stepped outside its jurisdiction and that ss. 79 and 80 of the Act cannot avail to protect its certificate. I do not find it necessary to discuss the numerous decisions dealt with by counsel in the full and helpful arguments addressed to us dealing with the extent of the jurisdiction of the Court and the rules by which it is guided when called upon to decide whether a tribunal exercising powers conferred on it by statute has exceeded those powers or has otherwise acted without jurisdiction. I think it sufficient to refer to the recent judgment of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission and Another[2], and particularly to the speech of Lord Reid at pp. 169, 170, 172 and 173, that of Lord Pearce at pp. 191 and 192 and that of Lord Wilberforce at pp. 203, 204 and 205; and to the judgment of this Court affirming the judgment of the Court of Appeal for Ontario which in turn had affirmed that of Gale J., as

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he then was, in Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Company[3].

The concluding words of Robertson C.J.O., giving the unanimous judgment of the Court of Appeal in that case[4], appear to me to be apt to describe the actions of the Board in the case at bar:

To put the matter in another way, the Board has assumed jurisdiction to grant certification to the applicant without first ascertaining that the applicant has the qualifications that permit its certification, and has thereby disregarded an important limitation on the Board’s jurisdiction.

While differently worded, the privative clauses considered in the two last-mentioned cases were no less sweeping in effect than those with which we are concerned in the case at bar.

If the view expressed by Fraser J. in the paragraph from his reasons firstly quoted above is correct (which I see no reason to doubt although it is unnecessary to express a final opinion) it would appear that the Board has granted certification although not a single employee in the bargaining unit was a member of the applicant. This is a surprising result, but the reason that the certification cannot stand is not that the Board has erred in fact or in law in determining what employees were members of the union within the meaning of s. 7 of the act, but rather that it has refused to put that question to itself, has instead put another question which was not remitted to it and has thereby stepped outside its jurisdiction in the manner indicated above.

I would allow the appeal with costs throughout payable by the union to the appellant, set aside the orders of the Court of Appeal and of Fraser J. and direct that an order be issued quashing the certificate of the Board dated August 29, 1967. I would make no order as to costs in favour of or against the Board.

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Appeal allowed with costs.

Solicitors for the appellant: Miller, Thomson, Hicks, Sedgewick, Lewis & Healy, Toronto.

Solicitors for the respondent: Robins & Robins, Toronto.

Solicitors for the Ontario Labour Relations Board: Kimber, Dubin, Morphy & Brunner, Toronto.