Upper Lakes Shipping Ltd. v. Sheehan et al., [1979] 1 SCR 902

Supreme Court of Canada

Upper Lakes Shipping Ltd. v. Sheehan et al., [1979] 1 S.C.R. 902

Date: 1979-01-23

Upper Lakes Shipping Ltd. Appellant;

and

Mike Sheehan and The Canada Labour Relations Board Respondents.

1978: November 14, 15; 1979: January 23.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Judicial review—Labour relations—Unfair labour practices—Refusal to hire because of expulsion from Union—Timeliness of complaint—Successive requests for employment and refusals—Canada Labour Code, R.S.C. 1970, c. L-1 (as amended by 1972 (Can.), c. 18), ss. 184(3)(a)(ii), 187(2), 189—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

A complaint was lodged by Sheehan against Upper Lakes on May 23, 1974, alleging a breach of s. 184(3)(a)(ii) in Part V of the Canada Labour Code, R.S.C. 1970, c. L-l, as enacted by 1972 (Can.), c. 18, s. 1. The Canada Labour Relations Board concluded that the complaint must be dismissed as untimely under s. 187(2) of the Code and as ill-founded in fact. The Federal Court of Appeal, on an application to it under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 set aside the decision of the Board holding that the complaint was timely, that a violation of s. 184(3)(a)(ii) had been established and that the case should be remitted to the Board for the prescription of a remedy under s. 189 of the Code.

The unfair practice charged against the appellant was the refusal to employ the respondent Sheehan because he had been expelled from trade union membership for a reason other than a failure to pay required union dues. He had been expelled from the Seafarers International Union, of which he had been an officer, because of activities in forming and supporting a rival union, the Canadian Maritime Union, of which he became first president. The C.M.U. subsequently merged with another union and in 1964 Sheehan was expelled from that union for a reason other than a failure to pay union dues. From that time on he was unable to get employment as a seaman. The C.M.U. refused his offer to pay dues and the appellant company refused to hire him. Prior to March 1, 1973, when s. 184(3)(a)(ii) came into effect, it was not an unfair employer practice to refuse

[Page 903]

to employ a person because of expulsion from a Union. Sheehan had known for several years, far longer than the “ninety days prior to the filing of the complaint”, that the company was refusing to employ him. However he founded his complaint on refusals by the company president and vice-president personnel on April 26, 1974, and May 3, 1974, respectively.

Held: The appeal should be allowed.

Per Laskin C.J. and Martland, Ritchie, Spence, Dickson and Estey JJ.: The issue is whether the complaint filed on May 23, 1974, was made not later than ninety days from the date on which the complainant knew or in the opinion of the Board ought to have been known of the action or circumstances giving rise to the complaint, as prescribed by s. 187(2). The Board rightly rejected the contention that one rebuff or a succession of rebuffs does not make subsequent applications untimely so long as a complaint is filed within ninety days of the latest rebuff. To enable a complainant to found a succession of complaints would make a mockery of s. 187(2) even if it was applicable irrespective of res judicata. There can be no doubt that the period of limitation runs against a refusal to employ where the refusal occurred long before a complaint is made in respect of a subsequent refusal based on the same circumstances. While s. 118(m) of the Labour Code authorizes the Board to enlarge the time for instituting the proceeding it does not empower the Board to alter a substantive provision of the statute prescribing a time limit for filing complaints. The power under s. 118(m) does not entitle the Board to give latitude to a complainant who is out of time under the statute.

Per Pigeon, Beetz and Pratte JJ. concurring in the result: An enactment prohibiting previously legal conduct is not subject to an implied exception for continuing situations. The issue is to be determined exclusively under a consideration of what occurred after the coming into force of par. 184(3)(a)(ii), that is March 1, 1973. Further the Federal Court of Appeal was correct in holding that “Each request for employment and refusal, if in breach of s. 184 might have become the subject of a complaint”. There was not here any pre-existing employer‑employee situation, Sheehan was not asking for reinstatement. He was asking for a job and therefore each refusal in violation of par. 184(3)(a)(ii) could form the basis of a complaint to the Board.

The question whether the refusal to hire Sheehan was due to his expulsion from the C.M.U. was essentially one of fact. On this the Board made a finding which the

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Court of Appeal overturned apparently for the sole reason that appellant’s president (Mr. Leitch) did not testify “so that none of the allegation made by the applicant in respect of his meeting with Mr. Leitch was rebutted…”. In so holding the Federal Court of Appeal misconducted subs. 188(3) of the Code and subs. 24(1) of the Interpretation Act. What is deemed to be established in the absence of evidence to the contrary is not each and every allegation of the complaint in writing, but the “fact” of which the document, the complaint, is evidence. This “fact” was failure to comply with par. 184(3)(a). The vice-president having testified as to the reason for denying employment there was some evidence that the employer had not failed to comply and the Federal Court of Appeal was not justified in reversing the Board’s finding on the merits.

[Central Broadcasting Company Ltd. v. Canada Labour Relations Boad, [1977] 2 S.C.R. 112; National Labor Relations Board v. Textile Machine Works Inc. (1954), 214 F (2d) 929; National Labor Relations Board v. Basic Wire Products Inc. (1975), 516 F. 2d 261 (6th C.C.A); National Labour Relations Board v. Pennwoven, Inc. (1952), 194 F. (2d) 521 (3rd CCA.); National Labor Relations Board v. Childs Co. (1952), 195 F. (2d) 617 (2d CCA.); Local Lodge No. 1424, International Association of Machinists v. National Labour Relations Board (1960), 362 U.S. 411 referred to]

APPEAL from a judgment of the Federal Court of Appeal[1] setting aside a decision of the Canada Labour Relations Board[2] dismissing a complaint of unfair labour practice. Appeal allowed, Board’s order dismissing complaint restored.

John Sopinka, Q.C., and R. Rovet, for the appellant.

David Moore, for the respondent Sheehan.

C.L. Campbell, for the respondent Canada Labour Relations Board.

The judgment of Laskin C.J. and Martland, Ritchie, Spence, Dickson and Estey JJ. was delivered by

THE CHIEF JUSTICE—The proceedings out of which this appeal arose originated in a complaint

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lodged by the respondent against the appellant company on May 23, 1974, alleging a breach of s. 184(3)(a)(ii), being in Part V of the Canada Labour Code, R.S.C. 1970, c.L-1, as enacted by 1972 (Can.), c. 18, s. 1, with effect from March 1, 1973. The complaint was lodged under s. 187(1), and an amended complaint providing fuller particulars as requested by the company in its reply of June 12, 1974 was filed on September 20, 1974.

The Canada Labour Relations Board concluded, inter alia, that the complaint must be dismissed as untimely under s. 187(2) of the Code. If this was a proper conclusion on the evidence and on the proper interpretation of s. 187(2), the complaint failed in limine, and it would be of no avail to the respondent complainant that the Board was guilty of reviewable errors of law on other substantive aspects of the issues, such as (for example) the correct interpretation of s. 184(3)(a)(ii). The Federal Court of Appeal, on an application to it under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, set aside the decision of the Board (which had dismissed the complaint on several grounds) holding that the complaint was timely, that a violation of s. 184(3)(a)(ii) had been established and that the case should be remitted to the Board for the prescription of a remedy under s. l89 of the Labour Code.

The immediately relevant provisions of the Labour Code read as follows:

187. (1) Subject to subsections (2) to (5) any person or organization may make a complaint in writing to the Board that an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union, or an employee has failed to comply with section 148, 184 or 185.

(2) Subject to this section a complaint pursuant to subsection (1) shall be made to the Board not later than ninety days from the date on which the complainant knew, or in the opinion of the Board ought to have known of the action or circumstances giving rise to the complaint.

184. (3) No employer and no person acting on behalf of an employer shall

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(a) refuse to employ or to continue to employ any person or otherwise discriminate against any person in regard to employment, or any term or condition of employment because the

…

(ii) has been expelled or suspended from membership in a trade union for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as a condition of acquiring or retaining membership in the trade union,

The unfair practice charged against the appellant is a refusal to employ the respondent Sheehan because (to use the words of the Statute) he had been expelled from trade union membership for a reason other than a failure to pay required union dues. The facts are not in dispute and, indeed, are recounted at great length in the complaint and amended complaint. Sheehan was expelled in 1961 from membership in the Seafarers International Union, of which he had been an officer, because of activities in forming and supporting a rival union, the Canadian Maritime Union, of which he became first president. The CMU became the bargaining agent for unlicensed seamen employed by the appellant company. In 1970 the CMU merged with the Canadian Brotherhood of Railway, Transport and General Workers, becoming Local 401, CMU, of CBRT and GW. Sheehan was expelled from the CMU in 1964 for a reason other than a failure to pay union dues. From that time on and through the years to the period antedating the complaint he attempted to get employment as a seaman on Canadian ships without success. These attempts related to efforts to obtain employment with the appellant company.

Sheehan knew J.D. Leitch, the president of the company, and B. Merrigan, the vice-president of personnel. The record shows that he had met with Leitch at least six times prior to 1974 with reference to possible employment as a seaman and had been refused each time. Indeed, the record shows that, on the respondent’s own recollection, he had sought employment on fourteen occasions from 1970 to 1974 and had been consistently turned down.

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It is well to note that prior to March 1, 1973 when s. 184(3)(a)(ii) of the Labour Code came into effect it was not an unfair employer practice to refuse to employ a person because of expulsion from a union, whether or not it was the union holding bargaining rights with the employer. It is admitted that after March 1, 1973, and prior to April 26, 1974 (a date whose relevance will become evident shortly) Sheehan met on many occasions with Leitch and Merrigan and requested and was refused employment. In order to meet the time requirement of s. 187(2), Sheehan founded his complaint on a refusal by Leitch to give him employment when so requested on April 26, 1974 and on a similar refusal by Merrigan on May 3, 1974.

What falls for consideration on the foregoing facts is whether the complaint filed on May 23, 1974 was made “not later than ninety days from the date on which the complainant knew, or in the opinion of the Board ought to have known of the action or circumstances giving rise to the complaint”. As a purely factual matter, Sheehan knew years and months before February 22, 1974 (being ninety days before the filing of the complaint herein) of the blanket refusal of the appellant company to employ him on its ships. Certainly, he knew of this uncompromising refusal shortly after March 1, 1973 when a refusal on the ground of expulsion from a union (other than for non-payment of union dues) became an unfair employer practice.

It is contended, however, that one rebuff or a succession of rebuffs does not make subsequent applications for employment untimely so long as a complaint is filed within ninety days of the latest rebuff. The Board rejected this contention in the following words:

Having now heard the evidence, the Board is satisfied that the complaint of Mr. Sheehan is indeed untimely in that the incidents complained of cannot, in the circumstances, be considered separately and are no more than the continuation of a situation which had arisen in the early 1960’s and which has remained substantially unchanged.

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The Federal Court of Appeal took an opposite view, that of counsel for Sheehan, speaking through Urie J.A. as follows:

With great respect, I am of the opinion that the Board was in error in so finding. In the first place since the prohibitions embodied in section 184 did not come into force until March 1973, there could not have been an offence committed contrary thereto until after that date. Thus, in my view, what had happened before that date could have no possible bearing on a violation of the prohibition committed thereafter. If what was done after the enactment of the statute was an offence the fact that exactly the same thing could have been done before its enactment with impunity, does not make it any less a violation of the statute. Moreover, clearly, in my view, each request for employment and refusal, if in breach of section 184 might have become the subject of a complaint. Since, in this case, the complaint was made on May 23, 1974 in respect of the alleged refusals to employ the Applicant on April 26, 1974 and May 3, 1974, it was not untimely and the Board erred in finding that it was.

I do not disagree with the Federal Court of Appeal that it was appropriate to measure the timeliness of a complaint from March 1, 1973 when the subject matter thereof became a prohibited practice. However, I cannot agree that there can be any number of requests and refusals, relating to the same circumstances, to enable a complainant to found a succession of complaints under s. 187(1) so long as he takes care to bring them successively within ninety days of any request and refusal. That would make a mockery of s. 187(2), even if it was applicable irrespective of res judicata, which was not mentioned by the Federal Court of Appeal.

There are two aspects to the conclusion of the Federal Court of Appeal which are not spelled out in its reasons. One is that there is here a continuous injury, on the analogy to nuisance cases, and the second, related to it, is that the ninety day period was established to limit the period within which remedial measures may be operative, if prescribed by the Board under s. 189 when it finds a breach of s. 184(3)(a)(ii).

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Before dealing with these two matters, there are some general observations which I would make. The unfair practice which is the subject of s. 184(3)(a)(ii) effects a statutory modification of closed and union shop provisions in a collective agreement. It provides employment protection and access to employment by persons who have or may run foul of union disciplinary measures which result in their exclusion or suspension from union membership. A complaint under this statutory provision in the case of one seeking employment depends on a demand for and a refusal of employment and, although there was no such contested fact in the present case, it would ordinarily involve the availability of a position which is denied to the complainant: of National Labor Relations Board v. Textile Machine Works Inc.[3], at p. 932.

The question of timeliness under s. 187(2) comes before the Courts for the first time. It has been litigated, however, quite extensively in the United States under a comparable statutory provision, s. 10(b) of the National Labor Relations Act, as amended, 61 Stat. 146, 29 U.S.C. s. 160(b). That section reads as follows in its relevant terms:

Provided… no complaint shall issue based upon any unfair labour practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made…

As is the case here, the United States limitation provision applies to a variety of unfair practices, not all of them open to the same application of the limitation. For example, an initial refusal to bargain collectively with a validly certified union within the limitation period which is not made the subject of a complaint, may not necessarily bar a subsequent complaint when the duty to bargain is a continuing one: see National Labor Relations Board v. Basic Wire Products Inc.[4] The central question in the present case is, of course, whether the refusal to hire is in the category of continuing wrongs.

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I think it sufficient to refer to three cases, one in the Supreme Court of the United States, in support of my view that Sheehan’s complaint is out of time. The relevance of the references is strengthened by the fact that the Canadian provision casts a wider net in language in respect of timeliness than does the American provision. Here, the statute speaks of “the action or circumstances giving rise to the complaint”; there, the language refers to a complaint “based upon any unfair labour practice”. It is of course important to note that no change in circumstances is alleged or shown here to provide a basis for distinguishing Sheehan’s position in 1973 or earlier from his position in April 26 and May 3, 1974.

The first of the three cases is National Labor Relations Board v. Pennwoven, Inc.[5] There the Court was concerned with the enforcement of a Board order directing the reinstatement of three employees who, the Board found, had been discriminated against because of union activity in not being called back in accordance with their seniority after the reopening of the employer’s plant following a summer shutdown. More than six months had elapsed between the discriminatory failure to re-employ the complainants and the filing of their complaint. The Court held that the complaint was untimely and dealt with the contention that the situation was comparable to a continuing tort like nuisance. Goodrich J., noting that the point was a new one, disposed of it, (at p. 525) in the following words, which appeal to me:

…

If we take the position that a discriminatory failure to reinstate an employee is to be treated like a continuing tort, that employee’s case will never be closed until it is finally litigated. Ten years after the event, he can still file charges that he was discriminatorily discharged and that he should be reinstated with back pay. The Board concedes that his back pay would only start from the day six months before the filing of the charges. But subject to this limitation, on the Board’s argument, his claim for reinstatement and back pay will keep on so long as he lives or until he is reinstated. We do not think that such an interpretation of the statute accomplishes the legislative purposes. We conclude that when the

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respondent in this case failed to call these three people back to work and they knew it and knew, or thought they knew, why they were not being called back, the respondent’s act of discrimination had taken place and his liability accrued thereupon. We do not think it continues indefinitely but is barred if charges are not brought within six months.

…

The second case is National Labor Relations Board v. Childs Co.[6] It involved, inter alia, an order of the Board directing the respondent employer to offer employment to a former employee who had been discharged under a closed shop agreement although his union dues were fully paid. The agreement was invalid under the Taft-Hartley Act, but the employee filed his complaint seeking reinstatement more than six months after his discharge. Later, he filed an amended complaint in which he reiterated his original charge, but it was treated by the Board as a request for new employment by reason of a letter written to the employer after the original complaint was filed, followed by another refusal by the employer to re-hire the complainant. A majority of the Court denied enforcement of the Board’s order. I refer particularly to the reasons of Judge Learned Hand at p. 621 of the report, where he considered whether there was in the case any difference between an application for reinstatement and a request for new employment. I quote two passages of his reasons:

…The question is as to the meaning of the words “any unfair labor practice occurring more than six months prior to the filing of the charge”, and, as I understand the opinion, this limitation ran against Potter only because he demanded reinstatement in, and restoration to, his original position with back pay and seniority. Had he merely asked for new employment dating from the time of his demand, it would have been an independent “unfair labor practice” to refuse him, although the refusal were for the original reason: i.e., that the union unlawfully demanded it. It is indeed possible so to read the words, but it seems to me that to do so defeats the purpose of the limitation, because it results in making a new “unfair labor practice” out of each repeated refusal of the employer to relent and retract. The necessary consequence is that the initial wrong can be made to

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persist indefinitely, unless the employer finally recants and the same must be also true as to the union. …

…I of course agree that if the employer refused Potter employment upon a new ground, which also constituted an “unfair labor practice”, the statute would not apply; but it seems to me that when Potter was discharged without condition, the wrong done him should be deemed indivisible, and that to construe the statute as giving him the privilege of keeping alive a part of his grievance, though not the whole, would not conduce to that industrial peace which it is the overall purpose of the Act to secure.

Chase J., who dissented, treated the letter which followed the original complaint as a request for employment rather than as merely reiterating a claim for reinstatement, and he would have upheld the Board’s order accordingly. It may be that separate unfair practices can be made out in a particular case, one in respect of a wrongful refusal to reinstate and another in respect of a wrongful refusal to hire. I am not concerned here with such an issue but point to the words of Learned Hand J. in the Childs case to support my view that the one set of circumstances cannot, by multiplying requests followed by refusals, give rise to a continuous unfair practice.

I come now to the judgment of the Supreme Court of the United States in Local Lodge No. 1424, International Association of Machinists v. National Labor Relations Board[7]. The relevant facts were as follows. The union, not having at the time majority employee support, entered into a collective agreement with a company, a term of the agreement providing for union security in that all employees were required, within a 45 day grace period, to become and remain union members. It was undisputed that it was an unfair labour practice to enter into a collective agreement when the union did not at the time represent a majority of the employees in the bargaining unit. Some ten and twelve months after the original execution of the agreement charges were filed with the Board alleging the illegality of continued enforcement of the “sweetheart” agreement, and complaints were thereafter issued against the union and the company. The question was whether the complaints

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were untimely under s. 10(b) of the American Act. A majority of the Board, and a majority of the Federal Court of Appeals (D.C. Circuit) held that they were not. The Supreme Court, with Frankfurter and Whittaker JJ. dissenting, concluded that they were out of time.

The Federal Court of Appeals accepted the Pennwoven and Childs cases but distinguished them as cases where there was no continuity of illegality, contrasting the case before them as one where the unfair practice resided in the continuous and repetitive enforcement of the union security clause, and not merely in the signing of the agreement which contained it. The distinction did not appeal to the Supreme Court. Harlan J., speaking for the Court, said this:

…

It is doubtless true that s. 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of s. 10(b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose s. 10(b) ordinarily does not bar such evidentiary use of anterior events.

The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely “evidentiary”, since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.

The situation before us is of this latter variety, for the entire foundation of the unfair labor practice charged was the Union’s time-barred lack of majority status when the original collective bargaining agreement was signed. In the absence of that fact enforcement of this otherwise valid union security clause was wholly benign.

…

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It appears to me that the present case is a fortiori in the light of the foregoing reasons and is not in any way improved by the dissenting reasons of Frankfurter and Whittaker JJ. Whatever may be the correct approach to a limitation period with reference to the continuing enforcement of a collective agreement tainted in its original execution, there can be no doubt of the running of the period against a refusal to employ where the refusal occurred long before a complaint made in respect of a subsequent refusal based on the same circumstances. In such a case the earlier refusal or refusals are not merely background considerations which can be brought forward for evidentiary purposes but rather are attempts “to revive a legally defunct unfair …practice”. The situation is not redeemed by the contention that pecuniary remedial relief under s. 189 of the Canada Labour Code would be limited to pay for only the ninety days preceding the complaint, assuming (and this is not too clear) that the section entitles the Board to grant such pecuniary relief in respect of an unlawful refusal to hire. That would distort the limitation provision as one referable not to a substantive complaint but to consequential remedies.

There is one further point that requires consideration, and that is the Canada Labour Relations Board’s reference to its power under s. 118(m) of the Labour Code which authorizes the Board, in relation to any proceeding before it, inter alia, to enlarge the time for instituting the proceeding. In its reasons, the Board took note of this power in the following words:

Although the Board is also of the opinion that paragraph 118(m) of the Code does empower it to enlarge the time for filing complaints, this paragraph cannot be read as allowing the Board to accept complaints based on a situation which arose before the coming into effect of the relevant sections of the Code, i.e., prior to March 1, 1973.

The Board appears to be saying that because Sheehan’s complaint was based on circumstances which arose when the employer could lawfully refuse employment to him under a closed or union shop clause, s. 118(m) could not be invoked by it after March 1, 1973 to enable Sheehan to turn lawful action into unlawful action. I do not share this view, but I am of the opinion that s. 118(m) is

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not applicable for another and more fundamental reason, namely, that it does not empower the Board to alter a substantive provision of the statute prescribing a time limit for filing complaints.

Section 118(m) is as follows:

118. The Board has, in relation to any proceeding before it, power

…

(m) to abridge or enlarge the time for instituting the proceedings or for doing any act, filing any document or presenting any evidence in connection with the proceeding.

I read this provision as empowering the Board to abridge or enlarge the time for taking steps in a proceeding which is properly before it, as, for example, a certification proceeding. If, however, the issue is whether a proceeding is timely under the Board’s governing statute, that is, whether the Board can lawfully entertain it at all in the light of s. 187(2), I do not regard its powers under s. 118(m) as entitling it to give latitude to a complainant who is out of time under the statute. The correlative would be that if it can enlarge it can abridge, and that would be absurd. A complainant is entitled to the advantage and is subject to the limitation of the ninety day period under s. 187(2). It can neither be restricted to a lesser period by any direction of the Board nor be allowed a greater period.

In the view I have taken on the issue of timeliness, I find it unnecessary to deal with any other issues raised in this appeal. I would, accordingly, allow the appeal, set aside the judgment of the Federal Court of Appeal and restore the Board’s order dismissing the complaint. It is not a case for costs either here or in the Federal Court of Appeal.

The judgment of Pigeon, Beetz and Pratte JJ. was delivered by

PIGEON J.—This appeal is from a judgment of the Federal Court of Appeal[8] setting aside a deci-

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sion of the Canada Labour Relations Board[9] dismissing a complaint of unfair labour practice made by respondent Mike Sheehan against appellant Upper Lakes Shipping Ltd. (the “Company”). The unfair practice charged against the Company is a refusal to employ Sheehan because he had been expelled from trade union membership for a reason other than a failure to pay union dues. The Board held the complaint untimely and also unfounded in fact. On an application made by Sheehan under s. 28 of the Federal Court Act, the Federal Court of Appeal held that the complaint was timely and also that the unfair practice charged had been established and remitted the case to the Board for the granting of consequential relief.

Sheehan’s application was based on para. 184(3)(a)(ii) of the Canada Labour Code as enacted by 1972 (Can.), c. 18, s. 1, effective March 1,1973:

184. (3) No employer and no person acting on behalf of an employer shall

(a) refuse to employ or continue to employ any person or otherwise discriminate against any person in regard to employment or any term or condition of employment, because the person

…

(ii) has been expelled or suspended from membership in a trade union for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as a condition of acquiring or retaining membership in the trade union,

The issue of timeliness arises under the provisions of ss. 1 and 2 of s. 187 reading:

187. (1) Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has failed to comply with section 148, 184 or 185.

(2) Subject to this section, a complaint pursuant to subsection (1) shall be made to the Board not later than

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ninety days from the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

In 1961, Sheehan was expelled from the Seafarers’ International Union because of his activities in forming a rival union, the Canadian Maritime Union (CMU) of which he became the first president. The CMU then became the bargaining agent for unlicensed seamen employed by the Company. In 1964, after the election of a rival as president, Sheehan was expelled from the CMU for a reason other than a failure to pay union dues. After that he was barred from employment as a seaman on the Company’s ships. The CMU refused his offer to pay dues and the Company refused to hire him.

It does not appear that prior to the enactment of para. 184(3)(a)(ii) there was any avenue of complaint open to Sheehan against this situation. The record shows that, after March 1, 1973 and prior to April 26, 1974, Sheehan met on several occasions with J.D. Leitch, the President of the Company, and B. Merrigan the Vice-President. On all those occasions he requested and was refused employment. His complaint to the Board was filed on May 23, 1974 and, in view of s. 187(2), it was founded on a refusal by Leitch to give him employment on April 26, 1974 and on a similar refusal by Merrigan on May 3, 1974.

In the reasons for judgment of the Board, the issue of timeliness was disposed of in two sentences, ([1976] 2 Can. LRBR 187 at p. 192):

Having now heard the evidence, the Board is satisfied that the complaint of Mr. Sheehan is indeed untimely in that the incidents complained of cannot, in the circumstances, be considered separately and are no more than the continuation of a situation which had arisen in the early 1960’s and which has remained substantially unchanged.

Although the Board is also of the opinion that s. 118(m) of the Code does empower it to enlarge the time for filing complaints, this paragraph cannot be read as allowing the Board to accept complaints based on a situation which arose before the coming into effect of

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the relevant sections of the code, i.e., prior to March 1, 1973.

The Court of Appeal was clearly right in rejecting this construction of the statute. An enactment prohibiting previously legal conduct is not subject to an implied exception for continuing situations. The issue is therefore to be determined exclusively under a consideration of what occurred after the coming into force of para. 184(3)(a)(ii) that is, March 1, 1973. In my view the Federal Court of Appeal was also correct in holding (at p. 841) that: “Each request for employment and refusal, if in breach of s. 184 might have become the subject of a complaint”. In its interim decision of February 26, 1975 ([1975] 2 Can. LRBR 55) the Board had left this issue open saying (at p. 61):

In the absence of a prior decision of the Board, as is the case here, the question of whether a renewed attempt to secure employment is a distinct occurrence which can give rise to a timely complaint is basically a question of fact, which can only be resolved after consideration of the evidence.

There does not seem to be any reported Canadian case dealing with this question. The only Canadian decisions which were cited to us are arbitration decisions dealing with grievances under a collective agreement. We have, however, been referred to a number of U.S. cases dealing with the construction and effect of s. 10(b) of the National Labor Relations Act, as amended, which reads as follows in its relevant terms:

Provided… no complaint shall issue based upon any unfair labour practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made…

The only case in the U.S. Supreme Court cited to us does not appear to me particularly helpful. This is Machinists Local v. Labor Board[10]. The employer had entered into a collective agreement containing a “union security” clause by which all employees were required, after a 45-day grace period, to become and remain members of the union as a condition of employment. Because, at

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the time, the union was not certified and did not represent any employee, the execution of this agreement constituted an unfair labour practice. However, no complaint was issued until after six months had expired. In order to avoid the application of the time limit, the complaint charged as an unfair labour practice the enforcement of the agreement within the preceding six months. It was held that because what made the agreement an unfair labour practice was the situation when it was executed, the time limit could not be thus circumvented by complaining of its enforcement rather than of its execution.

I will now review in chronological order several United States Court of Appeals decisions of great interest.

The first is National Labor Relations Board v. Pennwoven, Inc.[11] The unfair labour practice charged was a failure to recall some employees, after lay-off, in order of their seniority because of such employees’ activities on behalf of a union. It was held that a complaint made more than six months after the failure to recall was untimely, Biggs, Chief Judge said (at p. 526):

Analogizing causes of action in tort with discriminations under the Act I conclude that the “causes of action” of the three employees named could have accrued no later than on the dates designated and charges based on these discriminations could have been filed and maintained against Pennwoven, Inc. if filed within six months. The limitation provision of the Taft-Hartley Act, U.S.C.A. Par. 160(b), is phrased like the typical statute of limitations and was obviously intended by Congress to operate as such. It follows that when the six month period provided by the Act had expired no valid charge could be filed with the Board. The statute of limitations could not be tolled by the letters of April 16, 1949.

The next case is National Labor Relations Board v. Childs Co.[12] The unfair labour practice charged was a discharge made in execution of a closed shop agreement which was unquestionably illegal, since it was made subsequent to the passage of the Taft-Hartley Law. The discharge had

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occurred on January 23, 1948 and no complaint had been filed with the Board until September. On October 29, 1948 an amended complaint had been filed alleging that reinstatement had been denied on October 28, 1948. The contention that the subsequent request for reinstatement gave rise to a new discrimination was rejected (at p. 619):

…In our opinion the Board’s finding that the letter of October 23, 1948, constituted a demand for new employment is not supported by the record.

The most interesting case in my view is National Labor Relations Board v. Textile Machine Works[13]. The unfair labour practice charged was a refusal to hire on account of past union activities. After a strike, approximately 200 former employees had been discharged, the first complaint was filed more than a year after the end of the strike and it charged that the Company refused “to employ or to reinstate” the former employees on account of past union activity. The Court carefully distinguished between applications for reinstatement and applications for new employment. Biggs, Chief Judge, said in the unanimous opinion (at p. 932):

(2,3) In Pennwoven this court distinguished between an application for reinstatement by a discharged employee and an application for new employment. The distinction is critical in dealing with cases involving the six month limitation provided by Section 10(b) for the following reason. A discharged employee who seeks to be reinstated is really litigating the unfairness of his original discharge because only if the original discharge was discriminatory is he entitled to be reinstated as if he had never ceased working for the employer. The word reinstatement must be employed in this connection as the equivalent of uninterrupted employment. In this sense, the employee is restored to all of the rights and privileges which were his before he was discharged, plus any new rights and privileges which would have accrued to him in the meantime…

The concept of a discriminatory refusal to hire is a different concept. If a person—whether a former employee or not—applies for employment and discriminatorily is refused employment on account of prior union activity, the employer has committed a separate and distinct unfair labor practice. See Phelps Dodge Corp., Inc. v. N.L.R.B., supra. And the separate unfair

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labor practice of refusal to hire occurs when another applicant for employment is hired instead of the applicant discriminated against.

On this basis, the petition for enforcement of the Board’s order was allowed with respect to the employees who had applied “for a job” within six months and denied towards those who had asked “for reinstatement”, (at p. 934.)

(5) We think that the discriminatees included in the Board’s remedial order break down into three groups. The first category includes those discriminatees who applied for “a job” or “any job” or for “employment” or used like language under such circumstances as to indicate plainly that each was applying for employment as if he or she sought new employment rather than reinstatement to his or her old job. This group numbers 38 discriminatees. Their names are set out in the margin.

The second group consists of those discriminatees who insisted on rights inherent in their old jobs or who asked for their old jobs back under circumstances indicating that they sought reinstatement to their former positions rather than new employment. These number 23 and their names are set out in the margin. We hold that there is insufficient evidence to support the Board’s ruling as to these discriminatees.

The latest case mentioned does not appear to me particularly helpful. It is N.L.R.B. v. Basic Wire Products[14]. The head note reads:

An application was made to enforce an order of the National Labor Relations Board requiring an employer to bargain with a union. The Court of Appeals, Celebrezze, Circuit Judge, held that the Board had acted properly in refusing to invalidate a certification or hold a hearing on the employer’s allegations of improper union activities at the time of the certification election; that principles of res judicata did not bar Board adjudication of a refusal to bargain charge where a prior similar charge had been filed but withdrawn at the union’s request; and that, because the employer was under a continuing obligation to bargain with the union once it had been certified, the union’s unfair labor practice charge was timely filed when filed within six months after the employer’s second refusal to bargain, even though it was filed more than six months after the employer’s initial refusal to bargain.

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It will be seen that in that case the failure to bargain with a certified union was viewed as a continuing offence, unlike a refusal to reinstate an employee which was treated as a tort committed the day on which the employee was discriminately recalled or reinstated. I see no need to explore the validity of the distinction, and am willing for the purposes of this case to assume the correctness of the view that discrimination in recalling employees is to be viewed as a single occurrence for the purposes of the time limit for complaining.

I cannot, however, see any basis on which it can be said that a refusal to hire is subject to the application of this principle. There is nothing then that creates a continuous situation: one refusal may be perfectly legitimate and a subsequent refusal may be illegal. In order to support a complaint, it is not enough to show that the employer would not by reason of union activities consider giving employment to the applicant, it must also be shown that employment was available and given to another person. We are not dealing with a situation where there was any preexisting employer-employee situation. Sheehan was not asking for reinstatement, he was asking for a job and therefore each refusal in violation of para. 184(3)(a)(ii) could form the basis of a complaint to the Board.

On the merits of Sheehan’s complaint, I am unable to agree with the judgment of the Federal Court of Appeal. The question whether the refusal to hire was due to Sheehan’s expulsion from the CMU was essentially one of fact. On this point the finding of the Board is (at p. 193):

Although there can be no doubt that both Mr. Leitch and Mr. Merrigan knew Mr. Sheehan very well and were fully aware of his past involvement with the Canadian Maritime Union, the Board is nonetheless satisfied that their decision to refuse to employ Mr. Sheehan as a sailor on board the respondent-employer’s ships does not turn on Mr. Sheehan’s expulsion from the C.M.U. and from the S.I.U. Mr. Merrigan has testified that, even if he had been able to do so, he would not have hired Mr. Sheehan to work the ships of Upper Lakes Ltd. This evidence is rather self-serving. Nevertheless, the Board is satisfied that this statement reflects the considered opinion of Mr. Merrigan as to the suitability of Mr. Sheehan for work on Upper Lakes Shipping Ltd.’s vessels.

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The Federal Court of Appeal has apparently overturned this finding for the sole reason that Leitch did not testify (at pp. 844-846):

…The applicant made allegations in his complaint concerning refusal of employment with the Company by Messrs. Merrigan and Leitch. Both the applicant and Mr. Merrigan testified at length in the hearing before the Board. Mr. Leitch did not testify at all so that none of the allegations made by the applicant in respect of his meeting with Mr. Leitch was rebutted…

Section 188(3) of the Code reads as follows:

188…

(3) A complaint in writing made pursuant to section 187 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with paragraph 184(3)(a) is evidence that the employer or person has failed to comply with that paragraph.

Counsel for the applicant submitted that this section must be read with section 24(1) of the Interpretation Act, R.S.C. 1970, c. I-23:

24. (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.

…

No question of onus was raised in this case nor were the allegations in respect of Mr. Leitch’s part in the proceedings challenged in the only way really possible, viz. by calling Mr. Leitch as a witness. Thus, there was no contrary evidence for the Board to weigh before reaching its decision and, by virtue of the sections of the two statutes above referred to, the facts mentioned in the complaint, as they relate to Mr. Leitch, must be deemed to have been established. Since these facts reveal that one of the motivating factors in the refusal of the Company to employ the applicant was his expulsion from the S.I.U. and later from the C.M.U this motivating factor must be deemed to have been established and the Company was thus guilty of an unfair labour practice under section 184(3)(a)(ii).

In my view the Federal Court of Appeal erred in its construction of s. 188(3) of the Code and s. 24(1) of the Interpretation Act. What is deemed to be established in the absence of evidence to con-

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trary is not each and every allegation of the complaint in writing, but the “fact” of which the document, the complaint, is evidence. This fact is failure to comply with para. 184(3)(a). Therefore, when Mr. Merrigan had testified as to the reason for denying employment to Sheehan, there was some evidence that the employer had not failed to comply with para. 184(3)(a). If it was otherwise, whenever there are allegations in a complaint of acts or words of a person acting for the employer and this person has died or was unavailable to testify, those allegations would stand and could never be contradicted. Of course, the fact that Leitch did not testify was to be taken into consideration by the Board in assessing the evidence but this did not mean that the allegations of the complaint pertaining to his activities were to be taken as established.

Concerning the judgment of this Court in Central Broadcasting Company Ltd. v. Canada Labour Relations Board[15] which the Federal Court of Appeal relied on, I must say with respect that it does not support the view taken of s. 188(3). What was decided on this point is accurately stated in the head note as follows:

…s. 188(3) of the Canada Labour Code must be read with s. 24(1) of the Interpretation Act, R.S.C. 1970, c. I-23. There is no onus against the employer whenever some evidence is adduced in addition to the complaint; in that situation, to reach a conclusion the Board must weigh the whole of the evidence taking all the circumstances into account. The statute simply enacts that the fact mentioned in the complaint “shall be deemed to be established in the absence of any evidence to the contrary”. If evidence to the contrary is presented by any of the parties, there is no justification for the Board to conclude that, should on all of the evidence the scale be evenly balanced, the complaint must be considered as having been established. Such a conclusion would amount to a statement that an onus exists against the employer and the Code does not permit of such a conclusion.

In my view, the Federal Court of Appeal was not justified in reversing the Board’s finding on the merits of the complaint. In view of this conclusion it is unnecessary to consider whether it was

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authorized by s. 28, not only to set aside the Board’s finding, but also to make one.

For those reasons I would allow the appeal, set aside the judgment of the Court of Appeal and restore the order of the Canada Labour Relations Board dismissing the complaint. This is not a case for costs in any court.

Appeal allowed without costs.

Solicitors for the appellant: Stikeman, Elliot, Robarts & Bowman, Toronto.

Solicitors for the respondent, the Canada Labour Relations Board: McCarthy & McCarthy, Toronto.

Solicitors for the respondent Mike Sheehan: Lockwood, Bellmore & Strachan, Toronto.