Teamsters Union v. Massicotte, [1982] 1 SCR 710

SUPREME COURT OF CANADA

Teamsters Union v. Massicotte, [1982] 1 S.C.R. 710

Date: 1982-05-31

Teamsters Union Local 938 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Fred Johnston and Humes Transport Limited, Toronto, Ontario Appellants;

and

Gerald M. Massicotte and the Canada Labour Relations Board Respondents.

File No.: 16413.

1982: March 29; 1982: May 31.

Present: Laskin C.J. and Dickson, Beetz, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administration law — Judicial review — Canada Labour Relations Board — Privative clause — Union refusing to proceed with part-time employee dismissal grievance — Board holding union's refusal to be a breach of duty of fair representation — Board ordering grievance to proceed to arbitration — Whether Board decision reviewable — Whether Board acted beyond its jurisdiction — Canada Labour Code, R.S.C. 1970, c. L-l as amended, ss. 118(p)(vii), 121, 122, 136.1, 155, 187, 189 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).

Appellant Union refused to proceed with a part-time employee's dismissal grievance against the employer on the _ground that part-time employees had no grievance rights under the collective agreement. The Canada Labour Relations Board allowed the employee's complaint and held that. (1) he was within the bargaining unit under the collective agreement; (2) he was entitled to invoke the arbitration procedure at the Union's expense; and (3) the Union had failed in its statutory duty of fair representation under s. 136.1 of the Canada Labour Code. The Board's decision was reviewable only for breaches of natural justice—a ground not in issue here—or for questions of jurisdiction. The Federal Court of Appeal dismissed the Union's application for judicial review finding no excess of jurisdiction.

Held: The appeal should be quashed.

[page 711]

Mere doubt as to correctness of a labour board interpretation of its statutory power is no ground for finding jurisdictional error, especially when the labour board is exercising powers confided to it in wide terms to resolve competing contentions. Here the Canada Labour Relations Board addressed itself to the issue raised by the complaint and exercised powers in relation thereto which it clearly had under the Canada Labour Code. No question of jurisdiction were involved and the Board's decision was not reviewable.

Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Jacmain v. Attorney General of Canada, [1978] 2 S.C.R. 15; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, distinguished; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, discussed.

APPEAL from a judgment of the Federal Court of Appeal, [1982] 1 F.C. 216, 34 N.R. 611, 119 D.L.R. (3d) 193, dismissing an application to review a decision of the Canada Labour Relations Board, [1980] 1 Can. LRBR 427. Appeal quashed.

H. Caley and D. Wray, for the appellants Teamsters Union Local 938 and Fred Johnston.

Ian Scott, Q.C., and Ross Wells, for the respondent Canada Labour Relations Board.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—When this appeal came on for hearing on the merits by leave of the Court, two preliminary issues emerged, each of which, if decided adversely to the appellant Union, could or would affect its right to argue the merits. One issue was that of mootness and the other was non-reviewability if no question of the jurisdiction of the Canada Labour Relations Board was involved. The Court reserved judgment on these two points and postponed argument on the merits

[page 712]

pending their determination.

The mootness issue arose in this way. The Canada Labour Relations Board had determined that the prejudiced part-time employee, one Massicotte, who had complained to the Board of the Union's refusal to take up his dismissal grievance, was within the bargaining unit under the collective agreement between the Union and his employer, Humes Transport Ltd., that he was entitled to invoke the arbitration procedure under that agreement at the Union's expense; that the Union, by declining to take up his grievance, had failed in its statutory duty of fair representation under s. 136.1 of the Canada Labour Code, 1972 (Can.), c. 18, as amended by 1977-78 (Can.), c. 27, s. 49. The Federal Court of Appeal denied review and affirmed the Board's order in toto, including its direction that the employee could go directly to arbitration and that the arbitration board (to which the employee would nominate a member) would be left to determine whether a part-time employee was protected against unjust dismissal.

An application by the Union to come here was made on February 2, 1981 and granted on February 17, 1981. In the meantime, on February 9, 1981, arbitration began on the employee's grievance before a board to which he nominated a member. The board delivered its decision adverse to the employee on November 16, 1981, before the appeal to this Court came on for hearing. Although apparently asked to withhold its decision until the appeal here was disposed of, the board did not do so and held that the employee was not entitled to resort to the arbitration machinery under the collective agreement for protection against unjust dismissal. Hence, the contention advanced by counsel for the Canada Labour Relations Board that the appeal was moot.

The issue of jurisdiction, and reviewability on that ground, engages s. 122 of the Canada Labour Code, 1972 (Can.), c. 18, as amended by 1977-78

[page 713]

(Can.), c. 27, s. 43. The amended s. 122 fortifies a privative clause in respect of the Board's catalogue of powers by limiting review by the Federal Court of Appeal not to the entire range of matters specified in s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 but only to the matters in s. 28(1)(a). That provision confines review to breach of natural justice and to questions of jurisdiction. Admittedly there is here no issue of natural justice, but it was strenuously contended by the Union that there were issues of jurisdiction in the case which made review by the Federal Court of Appeal appropriate. Uniquely, at least in my experience, the Canada Labour Relations Board contended that there were no jurisdictional questions to be determined and, hence, following this Court's practice, it could not be heard on the merits; contrarywise, the Union asserted jurisdictional error to justify intervention by the Federal Court of Appeal and by this Court on further appeal. I need only say of the judgment of the Federal Court of Appeal that it found no excess of jurisdiction on the part of the Canada Labour Relations Board.

I must note that neither the employer nor the employee who launched this case appeared before this Court. The employer threw in its lot with the Union, and the employee, although filing a factum as did the employer, left argument to counsel for the Board. Of course, that counsel was not representing the employee who, presumably was content to abide by the consequences of whatever submissions were advanced by counsel for the Board.

I propose in these reasons to address myself to the question whether an issue of jurisdiction of the Board is involved, and only if I come to an affirmative conclusion in this respect will it become necessary to consider also the question of mootness. At the forefront, this Court has the opinion of the Federal Court of Appeal that the Canada Labour Relations Board did not exceed its jurisdiction or otherwise commit any jurisdictional error in the order that it made and in the directions

[page 714]

that it gave affecting the appellant Union. Difficult as it may be to segregate consideration of jurisdiction from consideration of the merits, the latter must rest on the footing that jurisdiction was (as alleged here) lost during the course of the Board's inquiry by the determinations that it made. Certainly the Board had authority to enter upon the inquiry based upon the complaint made by Massicotte under s. 187 of the Canada Labour Code, as amended by 1977-78 (Can.), c. 27, s. 66 alleging a violation of s. 136.1. Moreover, it had the fortification provided by s. 118(p)(vii) of the Canada Labour Code, as enacted by 1972 (Can.), c. 18. That provision empowers the Board to decide any question as to whether any person or organization is a party to or bound by a collective agreement and it is authorized to decide this for all purposes of Part V of the Canada Labour Code, being the part concerned with industrial relations and the role of the Board in that respect, including the entire process of certification, negotiation of collective agreements and arbitration.

The following are applicable provisions of the Canada Labour Code:

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

[…]

(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

[…]

 (vii) any person or organisation is a party to or bound by a collective agreement,

[…]

121. The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by, or as may be incidental to the attainment of the objects of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Part, with any regulation made under this Part or with any decision made in respect of a matter before the Board.

[page 715]

122. (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 paragraph 28(1)(a) of the Federal Court Act.

(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 be

a) questioned, reviewed, prohibited or restrained, or

b) 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.

[…]

136.1 Where a trade union is the bargaining agent for a bargaining unit, the trade union and every representative of the trade union shall represent, fairly and without discrimination, all employees in the bargaining unit.

[…]

187. (1) Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that

a) 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 subsection 124(4) or section 136.1, 148, 161.1, 184 or 185; or

b) any person has failed to comply with section 186.

(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.

[…]

Section 28(1)(a) of the Federal Court Act, referred to in s. 122 of the Canada Labour Code, supra, is as follows:

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to

[page 716]

hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

The appellant Union relies in the main on five cases in support of its contentions on jurisdiction. They are, respectively, Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Jacmain v. Attorney General of Canada, [1978] 2 S.C.R. 15; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; and the judgment of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, which was a foundation decision for another judgment of this Court in the case of Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425.

The key factor in the appellant's submission on jurisdictional error lay in its insistence that this Court had established patent unreasonableness in the Board's interpretation of its powers under the Canada Labour Code as giving rise to that kind of error. This, in its contention, went beyond mere error of law for which there was, admittedly, no recourse to judicial review. To the extent to which the Canada Labour Relations Board was entitled to examine the collective agreement (not to administer it but to assess its reach to part-time employees), there can be no basis for saying that it committed a jurisdictional error in finding that part-time employees were in the bargaining unit delineated by the agreement. If it was wrong in that assessment, the error would be one committed within its jurisdiction and hence would be at the most a non reviewable error of law.

[page 717]

The jurisdictional question raised by the Union must concern not the Board's appraisal of the collective agreement to the limited extent to which it focussed on that document but rather the way in which it exercised its statutory powers. At first blush, any error of construction or application here would appear to me, prima facie, to involve no more than an error of law, if the Board had embarked, as it did here, upon an inquiry which it was authorized to pursue. I turn, however, to the case law upon which the appellant Union founded its contentions on jurisdiction.

The Jacmain case, in my opinion, is of no relevance here. It involved the question whether the dismissal of a probationary employee was a dismissal for cause or whether it was a disciplinary dismissal. Only in the latter case was it open to an adjudicator under s. 91 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35 to deal with the grievance. The case therefore involved the preliminary issue whether the adjudicator was entitled to embark upon adjudication of the grievance. Although there were differences of opinion on the character of the dismissal and on the adjudicator's assessment thereof (he held that it was disciplinary but the Federal Court of Appeal and the majority of this Court held otherwise), the case does not present an issue here where there could be no question of the authority of the Canada Labour Relations Board to deal with the complaint of the part-time employee.

Nor do I think that much comfort can be derived by the appellant Union from the decision of this Court in the Nipawin case. The issue there was whether the provincial Labour Relations Board had properly denied certification to the Nipawin District Staff Nurses Association on the ground that as a "company dominated organization" it could not qualify as a trade union entitled to be certified as a collective bargaining agent. The Saskatchewan Court of Appeal was of the view that the Board acted in excess of its jurisdiction under the provincial Trade Union Act because its finding that the Association was "company dominated" could not result in disqualification

[page 718]

unless there was a companion finding that the dominating organization, the Saskatchewan Registered Nurses' Association, was an employer or an employer's agent. This Court disagreed and restored the' Board's order dismissing the certification application. The fact that the Board did not expressly find that the S.R.N.A. was an employer or employer's agent was held not to be fatal to the Board's jurisdiction, especially when it made the finding that the applicant Association was not a trade union under the Act.

The result reached by this Court in the Nipawin case is not difficult to support, having regard to the facts in that case. What counsel for the appellant Union fastens on here, however, are certain general observations made by this Court in arriving at its conclusion. Notice must be taken of the existence in The Trade Union Act of a strong privative clause, which included among its provisions power in the Board to determine any question of fact necessary to its jurisdiction. The observations relied on by the appellant Union are those of Dickson J., speaking for the Court (at pp. 388-89):

There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene.

A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to

[page 719]

embark on an inquiry or answer a question not remitted to it. If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: …

I do not see in these passages any basis for questioning the jurisdiction exercised in the present case by the Canada Labour Relations Board. Essentially, this Court has admonished that there must be no failure of natural justice (and there was none here) and that the Board should address itself to an issue arising under the legislation which it is charged to administer. If it has done this (as the Federal Court of Appeal held and, in my opinion, rightly so) there can be no jurisdictional infirmity when the Board is protected in its determinations by a privative clause. It may be wrong in law in interpreting the range of powers confided to it but its descisions [...] are nonetheless immunized from judicial review.

Nothing said in the New Brunswick Liquor Corporation case adds to the scope of judicial review in a way that would support a jurisdictional challenge to the way in which the Board in the present case dealt with its powers under s. 136.1 or s. 155 of the Canada Labour Code, as amended by 1977-78 (Can.), c. 27, s. 52. The appellant Union brought s. 155 into these proceedings by contending that s. 155(3) envisaged arbitration between parties to a collective agreement and did not envisage access to arbitration by a grieving employee on his own. However, the Board's wide remedial powers under s. 189, as amended by 1977-78 (Can.), c. 27, s. 68, where it has found a breach of s. 136.1. in the duty of a Union's duty of fair representation, entitled it to permit Massicotte to participate directly in the arbitration through nomination of an arbitrator.

[page 720]

I have already quoted s. 136.1 and it is also desirable to set out ss. 155 and 189, so far as material. They read as follows:

155. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged violation.

(2) Where any difference arises between parties to a collective agreement and

(a) the collective agreement does not contain a provision for final settlement of the difference as required by subsection (1), or

(b) the collective agreement contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement,

the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement

(c) to an arbitrator selected by the parties, or

(d) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.

(3) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or a chairman of the arbitration board, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or a chairman of the arbitration board, as the case may be, and, upon receipt of such written request, the Minister shall, after such inquiry, if any, as he considers necessary, appoint the arbitrator or chairman of the arbitration board, as the case may be.

(4) Any person appointed or selected pursuant to subsection (2) or (3) as an arbitrator or arbitration board chairman shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.

[…]

[page 721]

189. Where, under section 188, the Board determines that a party to a complaint has failed to comply with subsection 124(4) or section 136.1, 148, 161.1, 184, 185 or 186, the Board may, by order, require the party to comply with that subsection or section and may

(a) in respect of a failure to comply with section 136.1, require a trade union to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee's behalf or ought to have assisted the employee to take and carry on;

[…]

and, for the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any failure to comply with any provision to which this section applies and in addition to or in lieu of any other order that the Board is authorized to make under this section, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of such failure to comply that is adverse to the fulfilment of those objectives.

The New Brunswick Liquor Corporation case arose out of a Union complaint that the employer was using management persons to perform functions of employees during a lawful strike in violation of s. 102(3) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. This Court, reversing the New Brunswick Court of Appeal, sustained the order of the Public Service Labour Relations Board which upheld the Union's complaint. There is no doubt that the interpretation of s. 102(3) presented difficulties and the New Brunswick Court of Appeal felt that the question whether management persons are prohibited from replacing striking employees was a preliminary question upon which jurisdiction depended. In this respect that Court relied on the Jacmain case.

Justice Dickson, speaking for the Court, did not think that the language of preliminary or collateral was very helpful, since it segments and, in my

[page 722]

view, artificially so, the function of the Board. As he put it, at p. 233:

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.

The New Brunswick Act contained a familiar type of privative clause which would inhibit review for errors of law but not of jurisdiction. Dickson J. commented on this provision as follows, at pp. 235-36:

Privative clauses of this type are typically found in labour relations legislation. The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

The usual reasons for judicial restraint upon review of labour board decisions are only reinforced in a case such as the one at bar. Not only has the Legislature confided certain decisions to an administrative board, but to a separate and distinct Public Service Labour Relations Board. That Board is given broad powers—broader than those typically vested in a labour board—to supervise and administer the novel system of collective bargaining created by the Public Service Labour Relations Act. The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Considerable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met. Nowhere is the application of those skills more evident than in the supervision of a lawful strike by public service employees under the Act. Although the New Brunswick Act is patterned closely upon the federal Public Service Staff Relations Act, 1966-67 (Can.), c. 72, section 102(3) is not found in the federal legislation nor, in fact, in any other public sector labour legislation in Canada. The interpretation of s. 102(3) would seem to lie logically at the heart of the specialized

[page 723]

jurisdiction confided to the Board. In that case, not only would the Board not be required to be "correct" in its interpretation, but one would think that the Board was entitled to err and any such error would be protected from review by the privative clause in s. 101:.. .

He then passed to consider the contention of "patent unreasonableness" upon which appellant Union based itself in the present case. This is what he said at p. 237:

The Court of Appeal wrongly was of the opinion that the existence of the prohibition was a preliminary matter, and, therefore, the Board's decision was subject to review for its "correctness". I would take the position that the Board decided a matter which was plainly confided to it, for it alone to decide within its jurisdiction. It is contended, however, that the interpretation placed upon s. 102(3)(a) was so patently unreasonable that the Board, although possessing "jurisdiction in the narrow sense of authority to enter upon an inquiry", in the course of that inquiry did "something which takes the exercise of its powers outside the protection of the privative or preclusive clause".

[…]

Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

I do not see how one can properly so characterize the interpretation of the Board. The ambiguity of s. 102(3)(a) is acknowledged and undoubted. There is no one interpretation which can be said to be "right". The judgments of the Court of Appeal are in irreconcilable conflict. Mr. Justice Limerick took the view that "replace" dealt with permanent effects, and "fill their position" with temporary actions by the employer. Chief Justice Hughes found the converse, that "replace" meant "replace temporarily", while "fill their position" meant "fill their position on a permanent basis". Mr. Justice Bugold agreed in the result, but did not indicate which of the two versions he would adopt.

[page 724]

Dickson J. made an extensive examination of the reasons in the New Brunswick Court of Appeal and concluded in these words, at p. 242:

I have discussed the possible interpretation of s. 102(3)(a) at some length only because, to some, the Board's interpretation may, at first glance, seem unreasonable if one draws too heavily upon private sector experience. Upon a careful reading of the Act, the Board's decision, and the judgments in the Court of Appeal, however, I find it difficult to brand as "patently unreasonable" the interpretation given to s. 102(3)(a) by the Board in this case. At a minimum, the Board's interpretation would seem at least as reasonable as the alternative interpretations suggested in the Court of Appeal. Certainly the Board cannot be said to have so misinterpreted the provision in question as to "embark on an inquiry or answer a question not remitted to it."

What this judgment and that in Nipawin clearly convey is that mere doubt as to correctness of a labour board interpretation of its statutory power is no ground for finding jurisdictional error, especially when the labour board is exercising powers confided to it in wide terms to resolve competing contentions. In so far as the Anisminic and Metropolitan Life Insurance cases deal with the so-called "wrong question" test of jurisdiction, they have no relevance here. It is impossible to say that the Canada Labour Relations Board asked itself the wrong question in any sense of departing from the inquiry in which it was engaged. It addressed itself to the issue raised by the complaint and exercised powers in relation thereto which it clearly had. At bottom, the objection is to the consequential results of that exercise, but this is a long way from any jurisdictional issue.

In the result, I am of the opinion that there is no question of jurisdiction involved in the objection to what the Canada Labour Relations Board did. Its decision and remedial order are hence not reviewable and this appeal therefore fails and, indeed, should be quashed. In the circumstances, it is unnecessary to deal with the issue of mootness.

[page 725]

There will be no order as to costs, none being sought by the respondent Board.

Appeal quashed.

Solicitors for the appellants Teamsters Union Local 938 and Fred Johnston: Coley & Wray, Toronto.

Solicitors for the appellant Humes Transport Limited: Hicks, Morley, Hamilton, Stewart, Storie, Toronto.

Solicitor for the respondent Gerald M. Massicotte: Brian Iler, Toronto.

Solicitors for the respondent Canada Labour Relations Board: Cameron, Brewin & Scott, Toronto.