Supreme Court of Canada
Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382
Date: 1973-10-29
Service Employees’ International Union, Local No. 333 Appellant;
and
Nipawin District Staff Nurses Association (Applicant) Respondent;
and
Nipawin Union Hospital and the Labour Relations Board of Saskatchewan Respondents.
1973: June 18; 1973: October 29.
Present: Abbott, Martland, Pigeon, Laskin and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Labour relations—Certification—Labour Relations Board concluding that applicant a “company dominated organization”—Finding that applicant dominated by Saskatchewan Registered Nurses Association—Failure to find S.R.N.A. an “employer” or “employer’s agent”—Whether Board acted without jurisdiction—The Trade Union Act, 1972 (Sask.), c. 137.
The respondent association applied to the Saskatchewan Labour Relations Board for certification in respect of a unit which included all registered nurses and head nurses employed by the respondent hospital except the director of nursing. The appellant union opposed the application on the ground that the association was not a “trade union” because it was a “company dominated organization”, organized, formed and influenced in its administration by the Saskatchewan Registered Nurses’ Association (“S.R.N.A.”).
The Board accepted the union’s contention and dismissed the association’s application. The association then applied to the Saskatchewan Court of Appeal for an order of mandamus directing the Board to exercise the jurisdiction conferred upon it under s. 5 of The Trade Union Act, 1972 (Sask.), c. 137, in respect of the application for certification and for certiorari to quash the dismissal order. The Court of Appeal quashed the Board’s order and directed that a peremptory writ of mandamus issue as applied for by the association. The union then appealed to this Court.
[Page 383]
Held: The appeal should be allowed and the Board’s dismissal of the association’s application confirmed.
The Board dealt with the question remitted to it, viz., whether the association was a trade union, as defined. That question in turn required determination of the further question whether the association was a company dominated organization, as defined. The Board gave its answer to both of these questions. The contention that in doing so it failed to make a finding that S.R.N.A. was an employer or employer’s agent or that the members of the council of S.R.N.A. were employers or employers’ agents and the Board thereby acted without jurisdiction was not accepted. A tribunal was not required to make an explicit written finding on each constituent element, however subordinate, leading to its final conclusion. The Board made the specific finding that S.R.N.A. was not a “trade union” as defined by The Trade Union Act. The Court was prepared, on the record, to accept that the Board was aware of the statutory definition of “employer” and “employer’s agent” found in the Act and that it neither overlooked nor wilfully disregarded such definitions in concluding that the association was a company dominated organization.
Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, distinguished.
APPEAL from a judgment of the Court of Appeal for Saskatchewan, quashing an order of the Labour Relations Board and directing that a peremptory writ of mandamus issue as applied for by the respondent association. Appeal allowed.
G.J.D. Taylor, Q.C., for the appellant.
J.E. Gebhard, for the Labour Relations Board of Saskatchewan.
D.K. MacPherson, Q.C., for the Nipawin District Staff Nurses Association.
[Page 384]
The judgment of the Court was delivered by
DICKSON J.—On September 14, 1972, respondent Nipawin District Staff Nurses Association (the “Association”) applied to the Labour Relations Board of the Province of Saskatchewan (the “Board”) for certification in respect of a unit which included all registered nurses and head nurses employed by the Nipawin Union Hospital except the director of nursing. The appellant, Service Employees’ International Union, Local 333 (the “Union”) opposed the application and filed a reply in which it was alleged that the Association was not a “trade union” because it was a “company dominated organization”, organized, formed and influenced in its administration by the Saskatchewan Registered Nurses’ Association (“S.R.N.A.”). S.R.N.A. is a statutory body under the The Registered Nurses’ Act, R.S.S. 1965, c. 315, being, as the name implies, an association of those nurses who become registered as members of the Association and thereafter are entitled to be known as registered nurses. The affairs of S.R.N.A. are under the management of a council composed of seven members elected annually. S.R.N.A. has over 6,000 members of whom approximately 4,500 are employed in hospitals or nursing homes in Saskatchewan.
The Association’s application was heard by the Board and dismissed. The Association then applied to the Saskatchewan Court of Appeal for an order of mandamus directing the Board to exercise the jurisdiction conferred upon it under s. 5, cls. (a), (b) and (c) of The Trade Union Act, 1972 (Sask.), c. 137, in respect of the application for certification and for certiorari to quash the dismissal order. The Court of Appeal quashed the Board’s order and directed that a peremptory writ of mandamus issue as applied for by the Association. The appellant Union has now appealed to this Court.
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Section 5(a), (b) and (c), so far as applicable, provides as follows:
5. The board may make orders:
(a) determining whether the appropriate unit of employees for the purpose of bargaining collectively shall be an employer unit, craft unit, plant unit, or a subdivision thereof or some other unit…
(b) determining what trade union, if any, represents a majority of employees in an appropriate unit of employees;
(c) requiring an employer or a trade union representing the majority of employees in an appropriate unit to bargain collectively;
The following sections of The Trade Union Act are also relevant:
2. (l) “trade union” means a labour organization that is not a company dominated organization.
…
(e) “company dominated organization” means a labour organization, the formation or administration of which an employer or employer’s agent has dominated or interfered with or to which an employer or employer’s agent has contributed financial or other support, except as permitted by this Act;
…
(g) “employer” means:
(i) an employer who employs three or more employees;
(ii) an employer who employs less than three employees if at least one of the employees is a member of a trade union that includes among its membership employees of more than one employer;
(iii) in respect of any employees of a contractor who supplies the services of the employees for or on behalf of a principal pursuant to the terms of any contract entered into by the contractor or principal, the contractor or principal as the board may in its discretion determine for the purposes of this Act;
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and includes Her Majesty in the right of the Province of Saskatchewan;
(h) “employer’s agent” means:
(i) a person or association acting on behalf of an employer.
(ii) any officer, official, foreman or other representative or employee of an employer acting in any way on behalf of an employer with respect to the hiring or discharging or any of the terms or conditions of employment of the employees of the employer;
…
5. The board may make orders:
…
(h) determining whether a labour organization is a company dominated organization;
…
21. There is no appeal from an order or decision of the board under this Act, the board may determine any question of fact necessary to its jurisdiction, and its proceedings, orders and decisions shall not be reviewable by any court of law or by any certiorari, mandamus, prohibition, injunction or other proceeding whatever.
In dismissing the Association’s application, the Board found that the majority of the members of the council of S.R.N.A. over the years had been what the Board referred to as “management personnel” such as directors of nursing and superintendents of public health nursing employed by various hospitals, many of whom were persons whose primary responsibility in their employment was to exercise authority and perform functions of a managerial character and who regularly acted in a confidential capacity in respect of the industrial relations of their employers.
Evidence was placed before the Board that S.R.N.A. had devoted considerable energy, time and expense during the preceding several years promoting the organization of staff nursing associations throughout the Province of Saskatchewan. The Board accepted evidence placed before it that S.R.N.A. was attempting to dominate such associations with a view to ensuring that nurses would not become mem-
[Page 387]
bers of “non-nurse unions”. The organization meeting of the respondent Association was arranged by the employment relations officer of S.R.N.A. and held at the Nipawin Union Hospital. The employment relations officer had a draft agenda with him and a draft write-in constitution for the new organization; his expenses were paid by S.R.N.A. and the application for certification was filed with the Board under a covering letter from him. It was also conceded that counsel representing the Association at the hearing before the Board was engaged and paid by S.R.N.A. The substance of the Board’s decision to dismiss the application is found in the following paragraph:
The Board concurs, on the evidence presented to it in this application, with the view expressed by Miss Sutherland in the indicated article and feels that an organization under the domination, or control, of the SRNA Council would, or could, in effect be control of the bargaining process by management or management personnel.
The “view expressed by Miss Sutherland” is that contained in the April 1971 issue of the News Bulletin published by S.R.N.A. in which Miss Ann Sutherland, then S.R.N.A. employment relations officer, stated:
The SRNA council is almost always made up of management nurses so that approval by the council would in effect be control of the bargaining process by management. However, a more formal relationship of the staff nurses’ association within SRNA will need to be established.
The reasons for decision of the Board contain a quotation from Carrothers, Collective Bargaining Law in Canada, 1965, p. 207, reading: “statutory policy is clear that unions should be free of employer influence or domination” and conclude by holding that the applicant Association was a company dominated organization and accordingly not a trade union within the meaning of the Act,
[Page 388]
The judgment of the Court of Appeal for Saskatchewan delivered by Culliton C.J.S. acknowledges the right of the Board to determine whether the association was a “company dominated organization” and affirms that if, in the determination of that question, the Board acted within its jurisdiction the decision could not be reviewed in certiorari or mandamus proceedings even if wrong in fact or law: Farrell et al. v. Workmen’s Compensation Board; and Noranda Mines Ltd. v. The Queen et al. The Court of Appeal held that although the Board found that the Association was dominated by S.R.N.A. that finding would not render the Association a company dominated organization within s. 2(e) unless S.R.N.A. was either an employer or employer’s agent. In the opinion of the Court the Board inquired into the personal and private employment of the individual members who constituted the council of S.R.N.A.; found that the members of the council from time to time were made up of persons who could not be classed as employees under The Trade Union Act; and, having reached that conclusion, the Board held that the applicant, being under the domination of an organization so constituted, would in effect be controlled by management and, therefore, a company dominated organization. The Court concluded that the inquiry made by the Board and the decision which it reached were not founded on the provisions of the legislation but upon the Board’s view of what constituted a company dominated organization, and thus the Board acted in excess of its jurisdiction. With great respect, I do not agree. 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
[Page 389]
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 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: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc.
Reference must be made to Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796. In that case the Union sought certification as bargaining agent of all employees at Metropolitan Life Insurance
[Page 390]
Company in its building division at Ottawa, with certain exceptions. The company opposed the application on the ground that the constitution of the Union could only be interpreted as excluding from membership in the Union those persons claimed by the Union for certification. The Board rejected the company’s submission and applied a policy of its own making in dealing with the question whether an employee was a member of a Union. That policy permitted a person to be so regarded upon mere application for membership and payment of at least $1 initiation fee or monthly dues. This Court held that it was a condition precedent to the Board having power to grant the Union’s application for certification, that it be satisfied that more than 55 per cent of the employees in the bargaining unit were members of the Union; if the Board had addressed itself to that question 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: instead of asking itself that question the Board embarked on an inquiry as to whether, in regard to the requisite number of employees, the conditions which the Board ex proprio motu applied, had been fulfilled; in proceeding in this manner the Board failed to deal with the question remitted to it and instead decided a question not remitted to it. The recent judgment of the House of Lords in the Anisminic case, supra, as well as the judgment of this Court in Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Co., were relied upon. It would seem to me that in the case at bar the circumstances are very different. In the instant case, the Board dealt with the question remitted to it, viz., whether the Association was a trade union, as defined. That question in turn required determination of the further question whether the Association was a company dominated organization, as defined. The Board gave its answer to both of these questions. It is contended, however, that in doing so it failed to make a finding that
[Page 391]
S.R.N.A. was an employer or employer’s agent or that the members of the council of S.R.N.A. were employers or employers’ agents and the Board thereby acted without jurisdiction. I find it difficult to accept that contention. Section 2(e) of The Trade Union Act defines “company dominated organization” as a labour organization dominated by “an” employer. The proscribed domination need not be that of the employer whose employees are seeking to organize. A labour organization is a company dominated organization if any employer or employer’s agent dominates it or interferes with it or contributes financial or other support to it, except as permitted by the Act. “Employer” means “an employer who employs three or more employees”: s. 2(g)(i). The reasons for decision of the Board do not state the number of persons employed by S.R.N.A. and the Board did not expressly find that S.R.N.A. was an employer or employer’s agent but I do not regard this as fatal to the Board’s jurisdiction. A tribunal is not required to make an explicit written finding on each constituent element, however subordinate, leading to its final conclusion. The role of the Court in a case such as this is supervisory, not appellate: s. 21 of the Act. The Board made the specific finding that S.R.N.A. was not a “trade union” as defined by the Act. For myself, I am quite prepared, on the record, to accept that the Board was aware of the statutory definition of “employer” and “employer’s agent” found in The Trade Union Act and that it neither overlooked nor wilfully disregarded such definitions in concluding that the association was a company dominated organization.
[Page 392]
I would accordingly allow the appeal and confirm the Board’s dismissal of the association’s application, with costs in this Court and in the Court of Appeal. There should be no costs payable to or by the Board.
Appeal allowed with costs.
Solicitors for the appellant: Goldenberg, Taylor, Tallis & Goldenberg, Regina.
Solicitors for the applicant, respondent: MacPherson, Leslie & Tyerman, Regina.
Solicitor for the Labour Relations Board of Saskatchewan: J.E. Gebhard, Regina.
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