Respondents notified appellant union of their
intention to lay off a number of employees and subsequently gave 1800 employees
six weeks notice of lay‑off as required by the collective agreement. Six
days before the lay‑off, each employee was notified that he would be recalled
on a fixed date within six months of the lay‑off. Respondents did not
give sixteen weeks notice, as required by s. 60 of the Canada Labour Code ,
because the lay‑off was deemed not to be a termination of employment
pursuant to the Regulations. Appellants sought an injunction preventing the lay‑off
because of non‑compliance with s. 60 and a declaration that s. 30(c)(i)and
(ii) of the Regulation creating the exemption was ultra vires the powers
of the Governor in Council. The Court of Appeal reversed the trial judge's
finding and declaration that s. 30(c)(i) of the Regulations was ultra
vires and held all s. 30(c) intra vires.
Held: The appeal should
be dismissed.
Section 30(c) of the Canada Labour
Standards Regulations was validly enacted under s. 60.2 (d)
of the Canada Labour Code . The Governor in Council did not act in breach
of the spirit of the Code for the Regulation was made in accordance with the
precise terms of the statute. Section 60(4) of the Code provided for exceptions
to be made by regulation in the case of lay‑offs and s. 60.2 empowered
the Governor in Council to prescribe the circumstances in which such exceptions
would operate. Then, too, while the Regulations could have the effect of
depriving an employee of the benefit of previous notice as provided for by s.
60 of the Code, the very fact of a group lay‑off for financial reasons
would alert everyone concerned of the possible need of assisting the affected
employees in finding work. The combined effect of s. 60 of the Code and s. 30(c)
of the Regulations, however, was that an employer would violate the Code if he
failed to recall the employees at the time set out in the lay‑off notice.
The fact that the circumstances defined in the
regulations could be made through the action of an employer did not amount to a
delegation of the Governor in Council's authority.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 60(1), (2), (4), 60.2(d).
Canada Labour Standards
Regulations, C.R.C., c. 986, ss. 30(a), (b),
(c)(i), (ii).
APPEAL from a judgment of the British Columbia Court
of Appeal (1982), 5 D.L.R. (4th) 15, 40 B.C.L.R. 379, [1983] 2 W.W.R. 274, 84
CLLC ¶ 14,031 allowing an appeal from a judgment of Spencer J. Appeal dismissed.
Morely D. Shortt, Q.C.,
and Theodore Arsenault, for the appellants.
Jack Giles, Q.C.,
for the respondents.
W. B. Scarth, Q.C.,
and Susan D. Clark, for the intervener.
The judgment of the Court was delivered by
1. La
Forest J.‑‑The issue in this appeal is whether s. 30(c)
of the Canada Labour Standards Regulations, C.R.C., c. 986, was validly
enacted under s. 60.2(d) of the Canada Labour Code, R.S.C., 1970,
c. L‑1, as amended.
2. The proceedings began when the
appellants filed a petition in the Supreme Court of British Columbia seeking to
enjoin the respondents from laying off a large group of employees without
giving sixteen weeks' notice of their intention to do so to the federal
Minister of Labour pursuant to s. 60 of the Canada Labour Code . The
appellants also sought a declaration that paras. 30(c)(i) and (ii) of
the Regulations was ultra vires the powers of the Governor in Council.
3. Spencer J., who heard the matter, found
s. 30(c)(ii) ultra vires and issued a declaration
accordingly. An appeal to the Court of Appeal of British Columbia was allowed,
the majority, MacDonald and MacFarlane JJ.A., holding that all of s. 30(c)
was intra vires the powers of the Governor in Council. Hutcheon J.A.
disssented. Leave to appeal was then granted to this Court.
4. The issue can perhaps best be understood
by first referring to several provisions of Division V.2 of the Canada
Labour Code which deals with group termination of employment. Subsection
60(1) provides that when an employer terminates the employment of a group of
fifty or more employees within a particular industrial establishment, he is
required to give notice to the federal Minister of Labour of his intention to
do so within a specified period depending on the number of employees affected.
In the present case the period was sixteen weeks, there being over three
hundred employees affected. The employer is also required to give a copy of the
notice forthwith to the Canada Employment and Immigration Commission and to the
employees' trade union. The obvious purpose of the scheme is to assist the
employees to find other work by informing the Minister, the Canada Employment
Commission and their union by giving them notice of the termination of
employment; see s. 60.1 of the Code. The provisions of the Code so far as
necessary to an understanding of the issue are as follows:
60. (1) Any employer who terminates, either simultaneously or within any
period not exceeding four weeks, the employment of a group of fifty or more
employees employed by him within a particular industrial establishment...
shall... give notice to the Minister, in writing, of his intention to do so at
least
...
(c) sixteen weeks
before the date mentioned in paragraph (a) where the group exceeds three
hundred.
(2) A
copy of any notice given to the Minister under subsection (1) shall be given
forthwith by the employer to the Canada Employment and Immigration Commission
and to any trade union certified to represent any employee in the group of
employees whose employment is to be terminated or recognized by the employer as
bargaining agent for any such employee ...
...
(4)
Except where otherwise prescribed by regulation, an employer shall, for the
purpose of this Division, be deemed to have terminated the employment of an
employee where he lays off that employee.
60.2 The Governor in Council may make regulations for carrying out the
purposes and provisions of this Division and, without restricting the
generality of the foregoing, may make regulations
...
(d) prescribing
circumstances in which a lay‑off of an employee shall not be deemed to be
a termination of his employment by his employer.
5. Since, by virtue of s. 60(4), an
employee who is laid off is deemed to have had his employment terminated, it
follows that the notice must be given when employees are laid off, but the
provision specifies that exceptions may be made to this by regulation.
Paragraph 60.2(d) then provides that the Governor in Council may
prescribe circumstances under which a lay‑off shall not be deemed a termination
of employment. Pursuant to this power the Governor in Council established the
following regulation:
30. For
the purposes of Divisions V.2, V.3 and V.4 of the Act, a lay‑off of an
employee shall be deemed not to be a termination of his employment by his
employer where
(a) the lay‑off
is a result of a strike or lockout;
(b) the term of the
lay‑off is three months or less;
(c) the term of the
lay‑off is more than three months and the employer
(i) notifies the employee
at or before the time of the lay‑off that he will be recalled to work on
a fixed date or within a fixed period neither of which shall be more than six
months from the date of the lay‑off, and
(ii) recalls the employee
to his employment in accordance with subparagraph (i);
6. Owing to their financial situation, the
respondents, on June 21, 1982, notified the appellant union of their intention
to lay off a number of employees. Subsequently, the appellant employees, along
with some 1800 others, were given six weeks notice, as required by the
applicable collective agreement, that they would be laid off effective August
4, 1982. Six days before the lay‑off, on July 29, each employee was
notified that he or she would be recalled to work on February 1, 1983, i.e.,
under six months from the date of the lay‑off. The respondents did not
give the sixteen weeks' notice provided for by s. 60(1)(c) because by
virtue of s. 30(c) of the Regulations a lay‑off under these
circumstances is deemed not to be a termination of employment if the employees
are recalled on the date fixed by the notice.
7. The appellants' argument that s. 30(c)
of the Regulations is ultra vires the powers of the Governor General is
that it is inconsistent with the spirit of the legislation which contemplates a
notice before termination of employment so as to provide an opportunity
for the employees to find other employment. Here an employee can only know if
he will not be re‑employed when that decision is taken, i.e. after
he has been laid off.
8. There is no doubt that the general
intention of the legislation is to give prior notice of a termination of work,
and it is equally true that this may extend to lay‑offs as well as final
terminations of work by virtue of s. 60(4) of the Canada Labour Code .
But that very provision provides for exceptions to be made by regulations in
the case of lay‑offs, and s. 60.2(d) of the Act goes on to give
the Governor in Council power to prescribe the circumstances in which a lay‑off
shall not be deemed to be a termination of his employment and so not subject to
the requirement to give notice under s. 60 of the Code. These specific
provisions can scarcely be overlooked in determining the intention of
Parliament. Here the Governor in Council did precisely what the Act authorizes
it to do. It prescribed the circumstances when a lay‑off is not to be
deemed a termination of employment. To do precisely what the Code authorizes
can hardly be said to breach its spirit.
9. The Regulations may have the effect of
depriving an employee of the benefit of previous notice provided for by s. 60
of the Code, but Parliament, by the terms of that provision, clearly
contemplated that a lay‑off was subject to different considerations from
those applicable to a permanent termination of work in some circumstances and
delegated to the Governor in Council the discretion to determine those
circumstances. The very fact that there was a group lay‑off, for
financial reasons, would go some way towards informing everyone concerned that
the employees may have need for assistance in finding other work.
10. It is true that until the closing date set
for a lay‑off the parties, other than possibly the employer, would not
know whether the employees' employment would terminate, but that would be true
of most, if not all, lay‑offs (for example, that described in s. 30(b)
of the Regulations) unless one imports an obligation to recall an employee at
the end of the period assigned in the notice of lay‑off, a proposition
which, I think, cannot be supported. In substance, the combined effect of s. 60
of the Code and s. 30(c) of the Regulations is that in circumstances such
as the present an employer violates the provisions of the Code if he fails to
recall the employees at the time set forth in the notice of lay‑off.
11. The fact that the circumstances defined in
the Regulations may be created by the action of an employer does not amount to
a delegation of the Governor in Council's authority. A lay‑off must
inevitably be dependent on the employer's action.
12. The jurisdictional point raised in the
courts below, having been abandoned on the hearing of this appeal, I have not
considered it.
13. I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Shortt and Company, Vancouver.
Solicitors for the respondents: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitor for the intervener: Department of Justice, Vancouver.
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