Central Broadcasting Co. Ltd. v. Canada Labour Relations Board et al., [1977] 2 SCR 112

Supreme Court of Canada

Central Broadcasting Co. Ltd. v. Canada Labour Relations Board et al., [1977] 2 S.C.R. 112

Date: 1976-06-29

Central Broadcasting Company Ltd. Appellant;

and

Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local Union No. 529 Respondents.

1976: June 14, 15; 1976: June 29.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations—Illegal strike—Dismissal of employees—Complaint of unfair labour practice—Dismissed employees ordered reinstated by Canada Labour Relations Board—Determination that employees listed in complaint were in fact union members—No presumption created against employer—Canada Labour Code, R.S.C 1970, c. L-1, ss. 184(3)(a)(i), 187, 188—Interpretation Act, R.S.C. 1970, c. I-23, s. 24(1).

A number of employees of the appellant company went on strike in violation of the Canada Labour Code. The appellant then terminated their employment as a result of which a complaint of unfair labour practice was lodged by the employees’ bargaining agent, the respondent union. Thereafter, the Canada Labour Relations Board issued an order of reinstatement as to all of the employees mentioned in the complaint, less three, stipulating that the reinstated employees would be entitled to compensation. An application filed by the employer to set aside the Board’s order was dismissed by the Federal Court of Appeal. By leave of this Court, the employer appealed from the judgment of the Federal Court of Appeal on the following points: (1) Did the Federal Court of Appeal err in failing to hold that the appellant could not be guilty of an offence under s. 184(3)(a)(i) of the Canada Labour Code unless the persons whose employment was discontinued by the appellant were, in fact, at that time, members of a trade union? (2) Did the said Court err in failing to hold that s. 188(3) of the Canada Labour Code did not create a presumption of failure on the part of the appellant to comply with the provisions of s. 184(3)(a) when a complaint in writing had been made pursuant to s. 187?

Held: The appeal should be dismissed.

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In making the determination that the employees listed in the complaint were in fact union members, the Board was not limited to a strict and technical interpretation of union constitution and by-laws; as underlined by the Court of Appeal, the Board may take a broader approach. In the present instance, this broad approach was actually taken by the Board.

As to the second point, 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.

However it was obvious that, quite apart from any presumption, the Board had looked at the entire evidence and had come to the conclusion that on the whole thereof, taking into account the credibility of the witnesses and other circumstances, “the fact that the employees listed in the complaint were union members was, at the very least, a proximate cause for their dismissal”.

APPEAL from a judgment of the Federal Court of Appeal[1], dismissing an application to set aside a decision of the Canada Labour Relations Board. Appeal dismissed.

D.K. MacPherson, Q.C., for the appellant.

J. Baigent and R. Germaine, for the respondent Canada Labour Relations Board.

G. Taylor, Q.C., for the respondent International Brotherhood of Electrical Workers, Local Union No. 529.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—By leave of this Court appellant was authorized to lodge an appeal from the

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judgment of the Federal Court of Appeal, on the two following points:

Did the Federal Court of Appeal err in failing to hold that the appellant could not be guilty of an offence under s. 184(3)(a)(i) of the Canada Labour Code unless the persons whose employment was discontinued by the appellant were, in fact, at that time, members of a trade union?

Did the said Court err in failing to hold that s. 188(3) of the Canada Labour Code did not create a presumption of failure on the part of the appellant to comply with the provisions of s. 184(3)(a) when a complaint in writing had been made pursuant to s. 187?

A short statement of the facts will suffice. For many years, the appellant has operated a radio and television broadcasting business in Prince Albert, Saskatchewan. In May 1974, the Canada Labour Relations Board issued its certification order whereby the respondent Union was certified as the bargaining agent for certain of the employees of the appellant. Thereafter, a number of meetings took place and eventually the union requested the services of a conciliation officer and one was appointed by the Minister of Labour on November 6, 1974. This officer subsequently arranged to meet with the parties from December 11th to 13th.

On December 2, 1974, a number of appellant’s employees went on strike. It is common ground that this step was in violation of the Canada Labour Code. On the same date, the appellant terminated their employment as a result of which on January 24, 1975, the union lodged a complaint of unfair labour practice alleging that the conduct of appellant constituted

a) refusal to employ or continue to employ any person because the person is a member of a trade union, contrary to Section 184(3)(a)(i) of the Canada Labour Code;

b) intimidation, threat of dismissal or other threat to compel a person to refrain from becoming or cease to be a member, officer or representative of a trade union, contrary to Section 184(3)(e) of the Canada Labour Code.

On February 19, 1975, the Canada Labour Relations Board issued its order of reinstatement as to

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all of the employees mentioned in the complaint, less three, stipulating that the reinstated employees would be entitled to compensation. On May 14, the s. 28 application filed by the employer was dismissed by the Federal Court of Appeal.

I now turn to the two issues before this Court.

I—ACTUAL MEMBERSHIP

Section 184(3)(a)(i) of the Canada Labour Code reads:

No employer and no person acting on behalf of an employer shall

(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 person

(i) is a member of a trade union.

Appellant submits that both the Board and the Federal Court of Appeal interpreted this section to mean that actual membership in the union is not necessary for there to be a finding against the employer. There is no doubt that in the reasons of the Board (75 CLLC 16,711) there are expressions going far in that direction. For example (p. 16,723):

Thus, what really matters is not whether, in fact, the employee is a union member but whether the employer so believed and has terminated him for this reason.

And again (p. 16,723):

However, to defend against such a complaint, it is not enough for an Employer to demonstrate that the person aggrieved never in fact became a union member …

These bare statements taken by themselves are said by appellant to amount to an error of law and to justify the intervention of the Courts. They should, however, be read in their context. This context is that, six months before the dismissal, the certification order was issued on evidence of membership in the union substantially similar to that submitted to the Board in the case at bar. As I read the evidence, the majority of the employees dismissed on December 2nd had joined the union prior to the hearing that led to the certification order and their status as union members was the

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same in May and in December 1974. In the circumstances, I do not see that this is a case where should be applied the principle enunciated by this Court in Metropolitan Life Insurance Company v. International Union of Operating Engineers; Local 796[2]. In my view, when the time elapsed between the certification order and the dismissal is relatively short, the matter takes a different colour which the Federal Court of Appeal expressed correctly (p. 315):

The employees certainly believed that they had become members of the union; the employer shared that belief and an official of the union stated that they were members. In those circumstances, the fact that for legal and technical reasons the employees might have not been members of the respondent union is, in our view, irrelevant in determining whether the employer, in dismissing them, has violated section 184(3)(a)(i) of the Canada Labour Code.

Under s. 118 of the Canada Labour Code,

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

(p) to decide … any question that may arise in the proceeding, including,… any question as to whether

(iii) a person is a member of a trade union.

In making that determination, the Board is not limited to a strict and technical interpretation of union constitution and by-laws; as underlined by the Court of Appeal, the Board may take a broader approach. In the present instance, this broad approach was actually taken by the Board which made a finding “that the employees listed in the complaint are in fact union members” (p. 16,725). It is unfortunate that this finding was accompanied by statements like the ones quoted above which have obscured the issue.

II-PRESUMPTION

Section 188(3) of the Canada Labour Code reads:

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

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paragraph 184(3)(a) is evidence that the employer or person has failed to comply with that paragraph.

Appellant, and quite rightly so, has submitted that this section must be read with s. 24(1) of the Interpretation Act, R.S.C. 1970, c. I-23:

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.

Appellant has submitted with considerable vigour that these two sections when read together establish the following rules:

1) when there exists a complaint in writing, this document is evidence;

2) if no other evidence is presented, the fact mentioned in the complaint shall be deemed to be established;

3) if, however, there is other evidence, as was the case here through Mr. Rawlinson, the president of the appellant company, then the complaint ceases to be evidence of anything and the Board is left with the unchallenged and uncontradicted evidence of the witness, which it is bound to accept.

This reading of the two sections is based on the assumption that the words “in the absence of any evidence to the contrary” modify not only the words “the fact shall be deemed to be established” which immediately precede them but also the previous words, namely “the document is admissible in evidence”. Expressed otherwise, the submission of the appellant is that s. 24(1) of the Interpretation Act enacts that the complaint is only admissible in evidence in the absence of any evidence to the contrary.

I cannot accept that submission. To my mind, it does violence to the wording which is clear and plain. The complaint is admissible in evidence and, if it stands alone, the fact therein alleged “shall be deemed to be established”. If other evidence is adduced, then the Board has the duty to look at all

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the evidence and to weigh both the complaint and all the other material, written or oral.

But continues the appellant, even if the Board was entitled to look at the entire evidence including the complaint in order to reach its conclusion, it committed an error of law when it stated repeatedly throughout its reasons that the Code creates against the employer a presumption that must be overturned if there is not to be a finding of unfair labour practice. On this point, appellant is apparently on firmer ground; here again, the choice of words by the Board is unfortunate. There is no doubt that its reasons contain numerous statements that a presumption exists against the employer in matters of this kind. It is true that the word “presumption” may have many meanings and, if it had been used alone, I would have been inclined to accept the explanation that what the Board had really meant was “inference”. Taking the words of the Board at their face value, it is not possible to give that meaning to the word “presumption” because on many occasions it is stated in the reasons that the presumption has to be overturned. It follows that the members of the Board apparently had in mind that the Code creates a burden against the employer.

If that conclusion had been the turning point of the decision, an error in law would exist entailing nullity. Reading together s. 188(3) of the Canada Labour Code and s. 24(1) of the Interpretation Act, I am satisfied that 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

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statement that an onus exists against the employer and the Code does not permit of such a conclusion.

In my opinion though the decision of the Board did not turn on the existence or non-existence of a presumption against the employer which had to be overturned. From the lengthy reasons of the Board, it is obvious that, quite apart from any presumption, the Board has looked at the entire evidence and has come to the conclusion that on the whole thereof, taking into account the credibility of the witnesses and other circumstances, “the fact that the employees listed in the complaint were union members was, at the very least, a proximate cause for their dismissal” (p. 16,728). While it may well be that sitting in first instance I would have reached a different conclusion, this is not the test to be applied and I cannot say that the unfortunate use by the Board of the word “presumption” is sufficient to overturn its conclusion reached “on the evidence as a whole” (p. 16,726).

* * *

Two last points:

1) The Board appeared before us after having filed a lengthy factum; inasmuch as the jurisdiction of the Board as such has not been challenged, it was our unanimous view that the Board had really no standing before us and counsel appearing for the Board was not invited to address the Court;

2) in the case at bar, as submitted to this Court, nothing turns on the fact that the dismissed employees were participating in a strike prohibited by the Labour Code; of course, the impact of an illegal strike on some aspects of the contract of employment was examined in a different context in McGavin Toastmaster Ltd. v. Ainscough et al.[3]

For these reasons, I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: MacPherson, Leslie & Tyerman, Regina.

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Solicitors for the respondent union: Goldenberg, Taylor & Tallis, Saskatoon.

Solicitors for the respondent Canada Labour Relations Board: Gibbins, Rosenbloom & Germaine, Vancouver.