Canada Labour Relations Board v. Transair Ltd., [1977] 1 SCR 722

Supreme Court of Canada

Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722

Date: 1976-05-31

Canada Labour Relations Board Appellant;

and

Transair Limited Respondent;

and

Canadian Association of Industrial, Mechanical and Allied Workers, Local # 3 (Respondent).

1975: December 8, 9; 1976: May 31.

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

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations—Certification order issued by Canada Labour Relations Board—Order set aside by Federal Court of Appeal and remitted to Board—Appeal by Board—Locus standi—Date for determining appropriateness of unit—Whether Board acted beyond jurisdiction in refusing permission for cross-examination of union witness as to number of employees who were members of union—Whether Board erred in refusing to consider late counter-petition of employees—Personnel records clerk properly included in unit.

The Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 3, filed an application with the Canada Labour Relations Board for certification as bargaining agent for “all office workers of Transair Limited and all related offices, except managerial staff”. At the opening of the certification hearings, the Board advised the parties that the union had satisfied it of its majority membership position in respect of the proposed bargaining unit. Representations were made by the Union and by Transair on the appropriateness of the unit. The union was asked to establish its status as being a “trade union” within the definition in the Canada Labour Code because this was its first involvement in certification proceedings before the Board. Counsel for Transair sought to cross-examine a union officer as to the number of employees within the proposed bargaining unit who were members, but this line of questioning was not permitted by the Board on the ground that such information was already available to the Board and was for its confidential use.

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The Board made a certification order on April 17, 1974, but before it was issued the Board received notice of a petition of employees of Transair, dated April 16, 1974, objecting to the proposed certification. The Board rejected the petition as untimely.

On appeal, the Federal Court of Appeal set aside the certification order and remitted the case to the Board. Leave to appeal was granted to the Board by this Court on the following questions of law:

1. Did the Federal Court of Appeal err in holding, if it did so hold, that the Canada Labour Relations Board erred in determining the appropriateness of the bargaining unit as of the date of application for certification?

2. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board had wrongly included persons in the bargaining unit who were not employees eligible for inclusion under the Act?

3. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board denied natural justice to the respondent and hence acted beyond its jurisdiction in refusing

(a) to allow it to participate in the investigation of the question whether the applicant union seeking certification had a majority of persons in the bargaining unit as members; or

(b) to allow counsel for the respondent to cross-examine a witness on the question of majority membership?

4. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in refusing to consider a counter-petition of employees presented after the conclusion of its certification hearings but before the making of the certification order?

5. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in not making its determination on the question of majority as of the time of making the certification order?

Held (Martland, Ritchie and Spence JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Judson J.: As to the question of locus standi, it was open to the Board in the present case to assert standing not only as a nominal party, but as one entitled to defend its jurisdiction against attack for want of natural justice. The majority of the questions in

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the appeal raised questions of law only, but the Board should not be disentitled to make submissions on these questions, especially when they have aspects that bring them into relation to question 3. The Board was properly made a party to the proceedings, with standing at least for the purpose of defending its statutory jurisdiction. The Court could, in its discretion, permit the Board to enlarge the range of its submissions to include questions of law that are important to the discharge of its statutory functions. The present case called for this latitude.

1. The Canada Labour Code makes it clear that what is an appropriate bargaining unit is for the Board to determine. It would have been open to the Board to determine the appropriate bargaining unit as of the date of the application for certification, but in fact it did not do so. There was no substance in question 1 and no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit.

2. The only question remaining to be decided on the scope of the bargaining unit was whether the personnel records clerk should have been excluded. It was for the Board, on the evidence before it, to determine whether this job should be included or excluded, and its decision to include this class of work in the unit was not reviewable.

3. The Federal Court erred in its view as to the obligation of the Board to permit cross‑examination as to numbers and, certainly, as to any further inquiries which could only involve identity. Section 29(4) of the Canada Labour Relations Board Regulations, declaring that evidence submitted to the Board with respect to employee membership in the union was for the confidential use of the Board, is a reinforcement of the policy of the Act with respect to the authority of the Board in the determination of a union’s membership position.

4. If the employee’s counter-petition had been timely the Board would have been obligated to consider it. However, the Board was entitled to act on s. 10(2) of the Regulations and refuse consideration of a petition by late would-be intervenors. The Federal Court of Appeal plainly erred in law in requiring the Board to ignore its valid Regulations. Also, apart entirely from timeliness, the employer cannot invoke what is a jus tertii, especially when those whose position is asserted by the employer are not before the Court.

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5. Question 5 was without substance, subject to the effect of the counter-petition.

Per Pigeon and Beetz JJ.: Concurred with Spence J. that the appeal was not properly taken by the Canada Labour Relations Board; would, however, as he does, deal with the questions in issue as if the union instead of the Board had been an appellant before the Court.

Agreed with the Chief Justice that there was no substance in question 1 and that no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit.

Agreed with Spence J.’s disposition of question 2 and with the Chief Justice’s disposition of the remaining questions.

Per Martland, Ritchie and Spence JJ., dissenting: An administrative tribunal has a right of appeal only to defend its jurisdiction. In the present appeal the Board was not appellant solely to protect its jurisdiction, and, therefore, the appeal was not properly taken by the Board. Under the circumstances of the case, however, the issue in the questions as to which leave was granted could be dealt with as if the union instead of the Board had been an appellant before this Court. The important issue was that in reference to the alleged departure by the Board from the principles of natural justice.

Once the Board had determined that there should be a hearing, then it was the essence of the application of the principles of natural justice that the Board should hear all relevant evidence upon the subject of whether or not the union had the necessary majority of members in the proposed unit in favour of certification. Accordingly, the Federal Court of Appeal was correct in finding that the refusal to permit the cross-examination which counsel for the respondent desired to address to the witness for the union was a breach of the principles of natural justice and, therefore, the certification should be quashed.

It was a most deplorable reliance upon technicalities for the Board to have simply returned the employees’ petition as untimely with no investigation by its own officers or examination in the hearing as to the different position which, at any rate, the petition indicated, and such a course following the Board’s refusal to permit the cross-examination was again a breach of the principles of natural justice and justified the decision of the Federal Court of Appeal in quashing the certification order.

The duties of the personnel records clerk were not confidential in reference to industrial relations, only as

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to personnel relations. Therefore, there was evidence upon which the Board could properly include the personnel records clerk in the appropriate unit and the appeal, considering it as an appeal of the union, should be allowed to the extent that the inclusion of this clerk within the union was appropriate.

APPEAL from a judgment of the Federal Court of Appeal[1], setting aside a certification order. Appeal allowed, Martland, Ritchie and Spence JJ. dissenting.

G.F. Henderson, Q.C., and G. Hynna, for the appellant.

W.R. De Graves, Q.C., and M.J. Phelps, for the respondents.

The judgment of Laskin C.J. and Judson J. was delivered by

THE CHIEF JUSTICE—This appeal by the Canada Labour Relations Board from a unanimous judgment of the Federal Court of Appeal, setting aside a certification order and remitting the case to the Board, is here by leave of this Court on five questions of law which were formulated as follows:

1. Did the Federal Court of Appeal err in holding, if it did so hold, that the Canada Labour Relations Board erred in determining the appropriateness of the bargaining unit as of the date of application for certification?

2. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board had wrongly included persons in the bargaining unit who were not employees eligible for inclusion under the Act?

3. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board denied natural justice to the respondent and hence acted beyond its jurisdiction in refusing

(a) to allow it to participate in the investigation of the question whether the applicant union seeking certification had a majority of persons in the bargaining unit as members; or

(b) to allow counsel for the respondent to cross-examine a witness on the question of majority membership?

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4. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in refusing to consider a counter-petition of employees presented after the conclusion of its certification hearings but before the making of the certification order?

5. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in not making its determination on the question of majority as of the time of making the certification order?

On the hearing of the application for leave, counsel for the respondent Transair Limited raised the question of the locus standi of the Board but no argument on the matter was addressed initially to this Court on respondent’s behalf on the hearing of the appeal. Nonetheless, the matter was raised by the Court and I wish to deal with it before considering the merits of the appeal. There are a number of facets to the question. It is common ground that the Board, although a party to the proceedings herein, should not be permitted to argue on the merits of its decision, and it is equally common ground that, subject to the effect of s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), the Board is entitled to contest any challenge to its jurisdiction. Since natural justice (and I make here simply a general reference to this concept which has a number of aspects) has been considered as going to jurisdiction in certiorari or comparable proceedings taken to impeach a statutory tribunal’s decision, it would appear to me to be open to the Board in the present case to assert standing not only as a nominal party, but as one entitled to defend its jurisdiction against attack for want of natural justice.

The right of a labour relations board to appeal from an adverse order relating to its jurisdiction and to defend its jurisdiction on the appeal was declared by a unanimous judgment of this Court in Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd.[2] Three sets of reasons were delivered in that case, one by Kerwin J., for himself and Rinfret C.J., one

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by Kellock J., for himself and Rand J. and one by Estey J. Although Kellock J. appears to have taken a broader ground than limiting the Board in that case to questions of jurisdiction, it is clear, as a minimum, from the other two sets of reasons, that the tribunal was entitled to appeal to support its jurisdiction which had been called in question in the proceedings. In International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board[3], the Ontario Court of Appeal took the same view.

What is or is not a question of jurisdiction as opposed to a question of law only, touching the manner in which a statutory tribunal exercises its authority, is a somewhat ambiguous if not also a trammelled question. The language used by the Courts, including this Court, which decided the case of Toronto Newspaper Guild v. Globe Printing Co.[4], indicates an elastic conception of jurisdiction, as including an error of law in the course of proceedings which the tribunal there had undoubted authority to entertain. The defect in the Globe Printing case, which was characterized as a declining of jurisdiction, was, inter alia, a refusal of the tribunal to allow the respondent employer to cross-examine on the question of resignations from union membership when an inquiry to that end had not been made by the tribunal itself. In the present case, question 3 on which leave was granted, also raises an issue of a right to cross‑examine which was urged by the respondent as going to jurisdiction.

Questions 1, 4 and 5 raise, in my view, questions of law only, as does question 2 which proved, however, for reasons set out below, to have little significance for the case as a whole. I am not prepared to hold that the Board in the present case should have been held disentitled to make submissions on these questions, especially when they have aspects that bring them into relation to question 3. The Board was properly made a party to the proceedings that are now before us, with standing at least for the purpose of defending its statutory jurisdiction. In my opinion, the Court could, in its

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discretion, permit the Board to enlarge the range of its submissions to include questions of law that are important to the discharge of its statutory functions. The present case calls for this latitude.

In instituting the present proceedings under s. 28 of the Federal Court Act to impeach a certification order made by the Board in favour of the Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 3, the respondent Transair served not only the union but the Board, and, as well, the Deputy Attorney General of Canada. Both the union and the Board were represented by counsel before the Federal Court of Appeal and its reasons for judgment contain no indication that any limitation was placed on the range of submissions that the Board was allowed to present or whether in fact the Board did confine itself in the scope of its representations. I assume, from what counsel for the Board said in this Court, that the Board took no position on the merits of the union’s application.

Section 28(1) of the Federal Court Act reads as follows:

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

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

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I do not find anything in this provision to alter my view that the Board was entitled to make submissions as a party on any question going to its jurisdiction, including a question of natural justice under s. 28(1)(a), and that it was open to the Federal Court of Appeal, as it is open to this Court, to permit it to make submissions on questions of law arising under s. 28(1)(b). Although the union was before the Federal Court of Appeal, it decided (as appeared from a letter addressed to the Registrar of this Court) that it would not file a factum or appear by counsel here but would content itself with supporting the position of the Board. In the circumstances, the latter should not be charged with any impropriety in making representations on questions of law that have not heretofore come before this Court in respect of the Board’s powers under the Canada Labour Code.

I do not regard the Board’s participation as making it an adversary party as if there was a lis between it and the respondent Transair. Its counsel properly submitted to this Court that the Board was seeking an elucidation of the scope of its authority under its constituent statute, and it was to be expected that counsel would have to take a position on the questions at issue if he was to be of any help to the Court.

I turn now to the merits of the issues arising under the questions on which leave to appeal was granted. I can best approach them by a chronology of the events out of which they were said to arise. On July 19, 1973, the union filed with the Board an application for certification as bargaining agent of employees of Transair within a proposed bargaining unit. That unit was described generally in the application as follows:

All office workers of Transair Limited and all related offices, except managerial staff.

The union stated also that there were approximately sixty employees in its proposed bargaining unit.

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The application was communicated to Transair which was required to post notices thereof at its premises in Winnipeg, Sault Ste. Marie, Thunder Bay and Churchill Falls and did so on August 7 and 8, 1973. Transair, by a reply dated August 15, 1973, pursuant to Regulations of the Board, contested the application on two grounds, namely, that the proposed bargaining unit was not appropriate and that the union did not have majority membership support of the employees in the proposed unit. Transair also took the position that the number and percentage of employees within the proposed bargaining unit should be indicated by the union and it asked for a hearing to enable it to adduce evidence and make representations.

The Board assigned an investigating officer to report on the application and he obtained from the union its membership records to check against Transair’s roster of employees within the proposed bargaining unit. The investigation extended over a period of several months during which letters passed between the union and the Board and between Transair and the Board (or from them to the Board’s investigating officer). The Board received a report from this officer and directed a hearing on the certification application. Hearings were held on December 13 and 14, 1973, and were adjourned to January 23, 1974, and completed on January 24, 1974. At the opening of the hearings, the chairman of the Board referred to the proposed bargaining unit, to the number of employees therein and to the investigating officer’s report and announced that the union had established an absolute majority membership position in respect of the number in the proposed bargaining unit. Representations were made by the union and by Transair on the appropriateness of the unit. The union was asked to establish its status as being a “trade union” within the definition in the Labour Code because this was its first involvement in certification proceedings before the Board. It accordingly offered one MacEvoy as a witness, and counsel for Transair sought to cross-examine him as to the number (not the names) of employees within the proposed bargaining unit who were members, but this line of questioning was not permitted by the Board on the ground that such information was

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already available to the Board and was for its confidential use.

The Board issued a certification order on April 17, 1974. I set the order out in full:

WHEREAS an application for certification as bargaining agent for a unit of employees of Transair Limited, has been received from the Applicant by the Canada Labour Relations Board under Part V of the Canada Labour Code (Industrial Relations);

AND WHEREAS, following investigation of the application and consideration of the submissions of the parties concerned, the Board:

(a) Found the Applicant to be a trade union within the meaning of the said Code;

(b) Found the persons in the proposed bargaining unit, with certain exceptions, to be employees within the meaning of the Code;

(c) Determined the unit described hereunder to be appropriate for collective bargaining; and

(d) Is satisfied that a majority of the employees of the Respondent in the said unit wish to have the applicant trade union represent them as their bargaining agent;

NOW, THEREFORE, it is hereby ordered by the Canada Labour Relations Board that Canadian Association of Industrial, Mechanical and Allied Workers, Local #3, be and it is hereby certified to be the bargaining agent for a unit of employees of Transair Limited, comprising all office and clerical employees of Transair Limited including the planning clerk, the technical records statistician, and the technical librarian, but excluding the president, executive vice-president, senior vice-presidents, comptroller, assistant comptroller, directors, general manager, managers, supervisors, charter co-ordinator, administration assistant, district representative, personnel assistant, secretary to the president, secretary to the executive vice-president, secretaries to the senior vice-presidents, confidential stenographer to the comptroller, confidential stenographer to the vice-president of administration, confidential stenographer to the director of personnel, maintenance planner, draftsman, and those employees covered under subsisting collective agreements held by the International Association of Machinists and Aerospace Workers, Canadian Air Line Pilots Association, Canadian Air Line Flight Attendants’ Association, and Canadian Air Line Dispatchers Association.

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It should be noted that the bargaining unit is described in the Board’s order in some detail. This was obviously the result of what went on at the hearings, and I wish to refer to them in this connection. Although the union’s proposed bargaining unit might have given the impression that the union was seeking to represent a very sizable body of employees, its reference to the number of employees whom it was seeking to represent made it very evident that it was a limited unit that it had in mind. Transair was in no way misled because in its reply to the union’s application, after pointing out that it had ongoing collective bargaining relations with other unions and that it sought other exclusions of managerial employees and of some others (including those employed in a confidential capacity in matters relating to industrial relations), it affirmed from its own standpoint the correctness of the union’s estimate that sixty employees were affected by its application.

When the Board announced at the opening of the hearings that, with respect to the number of employees in the proposed bargaining unit, the union had satisfied the Board of its majority membership position, the Board had in hand the report of its investigating officer in which the particular classifications of the employees sought to be covered by the union were enumerated and, further, the number of those employees was found to be sixty-six. Transair, in addition to its reply already referred to, had supplied the Board before the hearing with a “master payroll listing” of all its employees, and the Board also had before it other material relating to existing collective bargaining relations between Transair and other unions.

The Board could have been a little more precise in the way it advised the parties at the hearing that the union had satisfied it of its majority membership position in respect of the unit for which certification was sought. That unit had been assessed by the investigating officer according to job classifications and the parties were aware of this when the Board declared its finding of majority membership position. As I have already noted, no one, certainly not the parties, could have been in any doubt as to the body of employees with which the Board was dealing and, indeed, the

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Board indicated that even if the number were increased to seventy-three, the union’s majority membership position would not have been affected.

What remained at issue was a consideration of exclusions of managerial employees and employees in a confidential capacity in matters relating to labour relations. Beyond this, there was little room left to quarrel about the definition of the bargaining unit; there was only the question of nomemclature in describing the included and excluded classifications, and this the Board did in its formal certification order, having had the benefit of the investigating officer’s report on classifications and Transair’s master payroll listing of its employees. I should add that it was also supplied at the hearing with a chart of Transair’s structure and the functions of its employees and as well with the classifications of those employees who were covered under collective agreements with other unions.

It appeared later that the Board had inadvertently failed to exclude (and it was common ground that they should have been excluded) the secretary and vice-president of administration, the vice-president of sales and marketing, the vice-president of the Eastern Region and the vice-president of operations. When the case was before the Federal Court of Appeal this error was disclosed, and the only remaining question on the scope of the bargaining unit was whether the personnel records clerk should have been excluded. The Federal Court of Appeal directed this exclusion on what appears to have been a mistaken appreciation on its part of the evidence touching the functions of this employee. I find it unnecessary to dwell at any length on this matter, and it is enough to say that it was for the Board, on the evidence before it, to determine whether this job should be included or excluded, and its decision to include this class of work in the unit is not reviewable. This disposes of question 2 which, in relation to the job of personnel records clerk, must be answered in the affirmative.

On the day that the Board made the certification order but before it was issued, notice was received by the Board of a petition of employees of Transair, dated April 16, 1974, objecting to the

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proposed certification. The entitling of the petition as one for decertification is of no moment; the thrust of the petition and the number of signatures make it clear that if it had been taken into consideration, or should have been considered by the Board as a matter of law, the certification order could not properly have been made on April 17, 1974. The Board rejected the petition as untimely and returned it (there were in fact two petitions with a minor variation between them) to the moving party by letter dated April 24, 1974. Reasons for the Board’s certification order were mailed to the parties on April 19, 1974, and the certification order was also mailed on that day. Because of an air strike the order was sent to the parties by telex on April 25, 1974.

So much for the history of the certification application and its eventual termination in a certification order. Transair brought its s. 28 application on May 2, 1974, and it raised as one of its grounds of challenge of the Board’s order the Board’s failure to consider the petition above mentioned. By an order of October 31, 1974, the Federal Court of Appeal directed that the petition be added to the record of the case forwarded by the Board pursuant to Federal Court Rules. The right of Transair to seek the intervention of the Federal Court of Appeal is given by s. 122(1) of the Canada Labour Code which provides that: “Subject to this Part [Part V], every order or decision of the Board is final and shall not be questioned or reviewed in any Court except in accordance with s. 28 of the Federal Court Act.”

The wide powers of the Canada Labour Relations Board in respect of certification of trade unions for collective bargaining are evident from Part V of the Canada Labour Code, and are supported by Regulations made thereunder. Since like powers are found in provincial labour relations legislation with which this Court has had extensive experience, it is unnecessary to expound afresh the statutory policy that underlies such legislation, and it will be sufficient, for present purposes, to refer only to a few key provisions of the Canada Labour

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Code, namely, s. 126 and s. 118(a)(c)(f)(k) and (p). They read as follows:

126. Where the Board

(a) has received from a trade union an application for certification as the bargaining agent for a unit,

(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and

(c) is satisfied that a majority of employees in the unit wish to have the trade union represent them as their bargaining agent,

the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.

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

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;

…

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion the Board sees fit, whether admissible in a court of law or not,

…

(f) to make such examination of records and such inquiries as it deems necessary;

…

(k) to authorize any person to do anything that the Board may do under paragraphs (b) to (h) or paragraph (j) and to report to the Board thereon;

…

(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

(i) a person is an employer or employee,

(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

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

(iv) an organization or association is an employers’ organization, a trade union or a council of trade unions,

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(v) a group of employees is a unit appropriate for collective bargaining,

(vi) a collective agreement has been entered into,

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

(viii) a collective agreement is in operation.

It is common ground that the Board may deal with a certification application without holding a hearing. In addition to its power to certify a union under s. 126, the Board is authorized under s. 127 to order a representation vote to satisfy itself of the wishes of the employees, even though the union may have provided evidence of majority membership; and it is required to direct such a vote if the applicant union’s membership support is under 50 per cent but is not less than 35 per cent of the employees in an appropriate bargaining unit. In the present case the Board, being satisfied of the applicant union’s majority membership position as announced by it at the hearing, chose to certify without ordering a representation vote. It is the contention of Transair that once the Board agreed to hold a hearing, it was obliged to permit cross-examination of witnesses, certainly to the limited extent sought by the respondent, and further that full inquiry had to be permitted as in any adversary proceeding. I shall return to this issue after making reference to the Regulations relevant to the present proceedings.

I need refer only to s. 10 and s. 29(1), (3) and (4) of the Regulations which are in the following terms:

10. (1) A person desiring to intervene in an application to the Board shall

(a) if he has not already received a copy of the application, request the Board to provide him with a copy of the application; and

(b) file with the Board a reply to the application within ten days after the receipt by him of a copy of the application.

(2) if a person desiring to intervene in an application to the Board fails to comply with subsection (1), he shall not, without the consent of the Board, be permitted to make any representations to the Board in relation to the application; and the Board may dispose of the application without notice to that person.

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…

29. (1) For the purposes of an application for certification, evidence that an employee is a member of a trade union shall be in writing and consist of:

(a) evidence that the employee has, within the period commencing on the first day of the third month preceding the calendar month in which the application is made and ending on the date of the application, joined the trade union

(i) by signing an application for membership or other document, acceptable to the Board, and (ii) by paying on his own behalf at least two dollars as the union admission fee or as one month’s dues within the aforementioned period; or

(b) evidence that the employee has been a member of long standing in the trade union and has, on his own behalf, paid not less than one month’s dues in the amount of at least two dollars within the period set out in paragraph (a).

…

(3) Where an employee objects to an application for certification of a trade union or indicates to the Board that he no longer wishes to be represented by the applicant, he shall provide the Board with the following information in writing, signed by him:

(a) his full name, address and occupation;

(b) the date of the application;

(c) the full name and address of the applicant trade union; and

(d) the full name and address of his employer.

(4) Evidence submitted to the Board pursuant to subsection (1) or (2) shall be for the confidential use of the Board and shall not be made public.

In its formal order on the s. 28 application, the Federal Court of Appeal set aside the Board’s certification order and directed the Board to reconsider the application for certification by “reinvestigating and making a new determination concerning the question that arises with reference to the application for certification under paragraph (c) of section 126 of the Canada Labour Code”. The formal order also directed the Board to re-define the bargaining unit to make it clear that it does not include the four vice-presidents (whose exclusion has been agreed upon by the parties, as already noted) and the personnel records clerk, whom I have already dealt with.

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There is no other formal direction with respect to the bargaining unit, but the Federal Court of Appeal’s reasons for remitting the case to the Board (and which must be scrutinized to understand the basis of the remittance directed in the formal order) indicate that another point, that raised in question 1, was material in relation to the bargaining unit and supported the Court’s direction.

The statute makes it clear that what is an appropriate bargaining unit is for the Board to determine. I have no doubt that it would have been open to the Board to determine the appropriate bargaining unit as of the date of the application for certification, but in fact it did not do so. Since the parties were more or less agreed on the number of employees intended to be covered, it was only the classifications to be included and those to be excluded that had to be determined as a basis for assessing the majority membership position among such employees. That was worked out, contingently it seems to me, by the report of the investigating officer; and it was at the hearing that the Board, in the light of the report, was able to speak, with more definiteness than the union’s specification permitted, of the bargaining unit within which the majority membership position had to be established to its satisfaction. In short, I do not agree that the Board determined the bargaining unit as of the date of the application. Indeed, the number in the unit upon which the Board assessed the union’s membership strength was announced at the hearing as sixty-six and not sixty as originally stated by the union and supported by Transair. The determination was either at the date of the hearing or at the date of the certification order, and there is nothing to suggest that anything that happened in the interval, if that is in any way a relevant consideration, had any bearing on the scope of the unit in respect of which the union’s majority membership position was to be assessed by the Board.

There is, accordingly, no substance in question 1 and no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit. Ques-

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tion 5 is, in the light of the foregoing, equally without substance, subject to the effect of the counter-petition which is raised by question 4.

Questions 3 and 4 relate to the principal grounds upon which the Federal Court of Appeal proceeded in setting aside the certification order. What is in issue in question 3 is not a refusal by the Board to hear evidence tendered by Transair on the question of majority membership (it did not tender any), but a refusal to permit counsel for Transair to inquire into the number of employees who were members of the applicant union through cross‑examination of a union witness called, upon invitation of the Board, to establish the status of the union as a qualified bargaining agent. Chief Justice Jackett in his reasons in the Federal Court of Appeal noted that “it is common ground among the parties to this case that vis-à-vis the employer, the identity of its employees who are members of the applicant union is a confidential matter”. Counsel for Transair reaffirmed in this Court that he did not seek to have the identity of those employees disclosed. I may observe that this position is not consistent with his general allegation that the hearing was an adversary process in which the full range of examination and cross-examination must be permitted as at an ordinary trial. Chief Justice Jackett did not expressly find that the Board erred in law in denying cross‑examination as to numbers, unless this can be inferred from his observation that “there was no clear statement by the Board prior to or at the opening of the hearing that investigation as to ‘majority’ was a matter from which the employer was excluded”. The Board did make this clear during the course of the hearing. What Jackett C.J. said specifically with respect to the claimed right of cross-examination as to numbers was that “the feasibility or usefulness of this is something that for the moment escapes me, but I have no doubt as to the sincerity of counsel for Transair in making the distinction [between numbers and identity]”. However, his two fellow members of the Court, Tritschler D.J. and Bastin D.J. did find reversible error in the denial of the claim to cross-examine as to numbers, and it appears that they would have

[Page 741]

allowed an even wider right to cross-examine.

The main submission of counsel for the Board on this phase of the case was that the Board’s function in relation to a certification application was essentially investigatory, and he pointed in this connection to s. 118(a), (c), (k) and (p), emphasizing that it was for the Board to receive and examine evidence solicited by it and to do so without being required to have a hearing, in contrast to the requirement of a hearing under s. 188(1)(b) where an unsettled complaint of an unfair practice is involved. The Board did carry out an investigation through an authorized officer on the question of majority membership and announced that it was satisfied that the union had an absolute majority of membership support in a bargaining unit of sixty-six employees. I think it would have been advisable for the Board to announce the number of supporting members of the union which the investigation revealed but I see no reversible error of law in its failure to do so and I share, in this connection, Jackett C.J.’s opinion, that the usefulness of disclosure of numbers escaped him.

In point of fact, it was the investigating officer and not MacEvoy who had the precise knowledge of the members of the union who were employees in the proposed bargaining unit since it was to him that the Board delegated the duty to ascertain who were the employees who complied with the Regulations respecting proof of union membership. The Board was entitled to act on his report without disclosing it in this respect, having regard to s. 29(4) of the Regulations, once it was clear that he had made the required investigation. Of that there was no doubt in the present case. Indeed, so far as union membership was concerned the union was as much in the hands of the Board as was the employer Transair once it had supplied the Board with its membership data and once the employer had supplied the Board with its employee lists against which to make a check of the union claim.

In my opinion, the Federal Court erred in its view as to the obligation of the Board to permit

[Page 742]

cross-examination as to numbers and, certainly, as to any further inquiries which could only involve identity. Section 29(4) of the Regulations, declaring that evidence submitted to the Board with respect to employee membership in the union was for the confidential use of the Board, is a reinforcement of the policy of the Act with respect to the authority of the Board in the determination of a union’s membership position. There was no such policy delineated as clearly in the legislation which was before the Courts which considered Toronto Newspaper Guild v. Globe Printing Co.[5]. Jackett C.J. remarked in a note to his reasons herein that the Globe case turned on the question whether the particular issue of majority membership support should have been investigated and, if so, how. In Re Jackson and Ontario Labour Relations Board[6], at p. 96, McRuer C.J.H.C. viewed the Globe case as turning on the fact that the Board there had refused to make a necessary inquiry rather than that cross‑examination as such had been refused. The cross-examination would have supplied information which the Board had not obtained and which was a necessary part of an inquiry which it was obliged to but failed to make. That is not this case, apart from the legislative changes since the Globe case was decided. The Board had made an investigation through a delegated officer and it had before it the information upon which it could exercise its statutory power to certify.

There remains for consideration question 4 touching the Board’s refusal to consider the counter-petition of employees, a petition signed by a large enough number as to destroy the union’s claim of majority support. Two things are clear. The Board could, without investigating the genuineness of this eleventh hour petition, have directed a representation vote to satisfy itself of the union’s continued majority support. It was, however, for the Board to decide whether to do this and not for the Court to direct it. Second, the Board could have launched an investigation into the bona fides

[Page 743]

of the petition and into the genuineness of the signatures thereto and could have been guided by the result of the investigation in dealing with the certification application. If the petition had been timely, the Board would have been obligated to consider it, whatever be the weight which it might have attached to it in the light of such consideration. The petition was, however, untimely under the Board’s Regulations, and the question is whether the Board could in law reject it accordingly.

I have no doubt that it could, however unwise I may think it was in doing so. Notice of the union’s application for certification, which was posted in Transair’s premises, carried the information that any intervention by any person must comply with s. 10 of the Regulations, the terms thereof being set out in the posted notice. The posted notice invited intervention by “any employee or group of employees”. The petitioners were plainly out of time in filing their petition about nine months after the application to which it was directed was filed. The hearings on the application had long been terminated. It may be that the Board would have been better disposed toward the petition had it been presented before or at the time of the hearings. That, however, is not this case and the Board was entitled to act on s. 10(2) of the Regulations and refuse consideration of a petition by late would-be intervenors. The Federal Court of Appeal plainly erred in law in requiring the Board to ignore its valid Regulations. Regulation 26 which states that “no proceeding before the Board is invalid by reason only of a defect in form or a technical irregularity” does not apply here.

It is not as if dissident employees are without any remedy. The wishes of employees govern not only the certification of a bargaining agent but also its decertification under the prescriptions of the Canada Labour Code, and ss. 137 and 138 are applicable in this connection.

There is another ground upon which, apart entirely from untimeliness, the Federal Court and this Court may properly refuse to entertain Transair’s attack upon the certification order when

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based on the Board’s refusal to consider the employee petition. This ground is indicated in the judgment of this Court in Cunningham Drug Stores Ltd. v. Labour Relations Board[7], where Martland J., speaking for all but one member of the full Court, said this (at p. 264):

There is a further question which arises in respect of the issue now raised by the appellant, and that is as to its right to seek to set aside the Board’s decision because it alleges that the rights of other parties were not observed. In La Commission des Relations de Travail du Québec v. Cimon Limitée, ([1971] S.C.R. 981) the employer company sought the rescission by the Quebec Labour Relations Board of its order directing a vote on the application of a trade union for certification on the ground that notice of the petition for certification had not been given to another union, whose earlier petition for certification had been rejected following an employee’s vote. The company contended that the unsuccessful union was successor to former unions which had been certified, whose certification had not been cancelled, and that it was therefore entitled to such notice.

The Board ruled that the company was unlawfully pleading on another’s behalf an objection in which it had no legal interest. This position was sustained in this Court, which held that the company was not entitled to invoke the rights of another party before the Board.

True, the issue in the Cunningham case was a different one from that presented here, but only in the fact that the employer there objected to the failure to give employees further notice where a radical change in the bargaining unit was proposed by the Board (they had notice of the original application for certification and no employee had objected) while here the objection of the employer was to the failure to consider a petition of employees who did not themselves in any representative or other capacity seek to intervene in the proceedings. Transair did not make the dissident employees parties to its s. 28 application, nor did it seek to have them joined when the Federal Court of Appeal directed by an order of November 1, 1974, that the petition should be made part of the record “without prejudice as to the rights of the parties as to its relevancy”. If there is any policy in the Canada Labour Code and comparable provin-

[Page 745]

cial legislation which is pre-eminent it is that it is the wishes of the employees, without intercession of the employer (apart from fraud), that are alone to be considered vis-à-vis a bargaining agent that seeks to represent them. The employer cannot invoke what is a jus tertii, especially when those whose position is asserted by the employer are not before the Court.

For the foregoing reasons, I would allow the appeal, set aside the order of the Federal Court of Appeal and reinstate the Board’s certification order but vary it to direct the Board to exclude from the specified bargaining unit the four classes of managerial employees whose exclusion was agreed upon by the parties and to include the personnel records clerk. The Board did not ask for costs and properly so, and hence the appeal should be allowed with the variations above-noted, without costs either here or in the Federal Court of Appeal.

The judgment of Martland, Ritchie and Spence JJ. was delivered by

SPENCE J. (dissenting)—I have had an opportunity to read the reasons of the Chief Justice and I, therefore, need not repeat the factual situation outlined therein; however, I must differ with the Chief Justice’s conclusions.

I refer firstly to the question of the right of the Board to appeal to this Court. I am in agreement with the statement of principle made by the Chief Justice that an administrative tribunal should be made party to certiorari proceedings and has the right of appeal of any other party in order to defend its jurisdiction. I would, however, limit the Board’s right of appeal only to such protection of its jurisdiction. I am of the opinion that this matter was well put by Aylesworth J.A. in International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board[8], at p. 589, when he said:

[Page 746]

Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may present argument to the appellate tribunal. We think in all propriety, however, such argument should be addressed not to the merits of the case as between the parties appearing before the Board, but rather to the jurisdiction or lack of jurisdiction of the Board. If argument by counsel for the Board is directed to such matters as we have indicated, the impartiality of the Board will be the better emphasized and its dignity and authority the better preserved, while at the same time the appellate tribunal will have the advantage of any submission as to jurisdiction which counsel for the Board may see fit to advance.

In coming to that conclusion, Aylesworth J.A. was applying the principle enunciated in this Court by Estey J. in Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd.[9], where he said at p. 344:

The foregoing authorities indicate that over a long period of time it has been recognized that where the jurisdiction of the body, constituted to discharge judicial functions, is questioned in a superior court, it may defend its jurisdiction and, in the event of an adverse judgment, take an appeal therefrom.

The problem, therefore, is whether in the present appeal the Canada Labour Relations Board is appellant solely to protect its jurisdiction. Perhaps the employer’s main attack upon the Board’s exercise of its jurisdiction is the submission that the Board failed to act in accordance with the principles of natural justice in two particulars. Firstly, that it refused to permit counsel for the employer to cross-examine Patrick MacEvoy, the regional vice-president of the Canadian Association of Industrial, Mechanical and Allied Workers, as to the members which the union had at the actual signing of the particular alleged unit, and secondly, in rejecting as untimely a document described therein as a petition and which purported to be signed by a very considerable number of the alleged members of the unit and in which they expressed the desire that the union not be certified. It is true that the finding that an administrative tribunal has not acted in accord with the principles of natural justice has been used frequently to

[Page 747]

determine that the Board has declined to exercise its jurisdiction and therefore has had no jurisdiction to make the decision which it has purported to make. I am of the opinion, however, that this is a mere matter of technique in determining the jurisdiction of the Court to exercise the remedy of certiorari and is not a matter of the tribunal’s defence of its jurisdiction. The issue of whether or not a board has acted in accordance with the principles of natural justice is surely not a matter upon which the Board, whose exercise of its functions is under attack, should debate, in appeal, as a protagonist and that issue should be fought out before the appellate or reviewing court by the parties and not by the tribunal whose actions are under review. In the words of Aylesworth J.A., as quoted above, such a proceeding would not indicate the impartiality of the Board or emphasize its dignity.

The other matters with which the judgment of the Federal Court of Appeal was concerned are essentially supplementary to this issue and certainly do not go to the jurisdiction of the Canada Labour Relations Board. I would, therefore, be of the opinion that the appeal was not properly taken by the Board and I would be prepared to dismiss the appeal for this reason.

There was, however, a proper party who could have applied for leave to appeal and that party is the Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 3, in short, the union. The union did not apply for leave to appeal. Had it done so, its entitlement to such leave would have been given the same consideration as the application by the present appellant, Canada Labour Relations Board. Not having applied for leave to appeal, the unit was simply named as a respondent upon the appeal by the latter Board. This respondent, of course, was entitled to file a factum and to appear before this Court in support of the appeal which was purported to be taken by the Canada Labour Relations Board. Instead, it chose the unusual procedure of having its solicitor file a letter under date December 3, 1975, stating that the union did not intend to file factums or appear by counsel but wished to record its position in this matter as follows:

[Page 748]

The Canadian Association of Industrial, Mechanical and Allied Workers, Local #3 (Respondents) hereinafter called “The Union” will not be filing a factum nor will counsel for the Union be appearing before this Honourable Court to submit oral argument with respect to its position on the appeal. The Union, however, wishes to record its position in this matter, as follows:

1. The Union agrees with and adopts in total, the statement of Facts and Argument, set out in Part One and Part Three respectively, of the factum of the Appellant.

2. The Union joins with the Appellant in respect to the Order desired, namely, that the Judgment of the Federal Court of Appeal should be set aside and the Certification Order of the Canada Labour Relations Board be restored except insofar as the Judgment of the Federal Court of Appeal relates to the exclusion from the bargaining unit of the Secretary, the Vice-President of Administration, the Vice-President of Sales and Marketing, the Vice-President of Eastern Region and the Vice-President of Operations.

In view of the disposition which I propose of the appeal by the Canada Labour Relations Board, I believe that this matter would be best handled by considering the factum of the Board and the argument by counsel for the Board as being in support of the position of the union and I therefore intend to deal with the issue in the questions as to which leave was granted as if the union had been an appellant before this Court. As I have said, the important issue is that in reference to the alleged departure by the Board from the principles of natural justice.

The Chief Justice in his reasons has outlined the facts in reference to this issue. I desire to extend such facts somewhat as follows.

The chairman of the Board at the commencement of the hearing made a statement in which he said, in part:

The Board informs the parties that on the basis of the proposed bargaining unit, the applicant has established an absolute majority character.

Since this was the first appearance of the union before the Labour Relations Board, the Board called upon counsel for the union to establish its

[Page 749]

status as a union. For that purpose, the union called Mr. Patrick MacEvoy who gave evidence in examination by counsel for the union. Counsel for the employer, the respondent here, then attempted to cross-examine Mr. MacEvoy and I repeat hereafter a portion of that attempted cross-examination and the ruling by the chairman:

CROSS-EXAMINATION BY MR. De GRAVES:

Q. Mr. MacEvoy, did you have anything to do with the organization of the preliminary steps involved?

A. Yes, I did.

Q. Were you in attendance at the time of the initial meetings?

A. I was.

Q. And would you mind telling me and the Board as to what numbers that you did, in fact, obtain?

MR. BROWN: A little louder, if you please.

MR. DE GRAVES: I am sorry.

THE WITNESS: I can’t reveal that.

THE CHAIRMAN: I want to get to the full question.

BY MR. DE GRAVES:

Q. Could you let me and the Board know as to the numbers you had at the actual signing of this particular alleged unit?

A. I think it is confidential.

MR. SORONOW: I object.

THE CHAIRMAN: The question is not allowed.

BY MR. DE GRAVES:

Q. How many meetings did you have, did the Applicant have?

A. During the organization drive, we have two or three meetings.

Q. And when did they take place?

A. Well, I don’t know if—

MR. SORONOW: Mr. Chairman, I question the relevance of the present line of questioning. I don’t know that out of all the issues we have before us this is an area upon which we need enter upon or ought to be entering upon.

THE CHAIRMAN: That is possible. I will ask you to establish the relevance of this questioning.

MR. DE GRAVES: It was introduced in evidence, Mr. Chairman and members of the Board, the Constitution.

MR. CHAIRMAN: M—hmm.

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MR. DE GRAVES: And in view of that introduction, I think I am entitled to ask questions concerning it, especially as it pertains to the membership in respect of the number of employees who joined in the application, which I think is relevant to the issue. And how many of these employees have maintained their membership in this particular union pending application for certification.

THE CHAIRMAN: I will just allow[10] all these questions on one basis or two bases. The first basis is that it would be confidential information regarding membership status, and the second reason that I would disallow these questions is that it is already information which is available to the Board. It is part and parcel of our investigation to ascertain many of these things you wish to raise at this stage. I shall allow any questions, however, directed at this witness that would establish that they have not the proper characteristic of a union such as defined under the Labour Code.

MR. DE GRAVES: I recognize your ruling, Mr. Chairman, and, recognizing it, I wish to complete the record and make the company’s position abundantly clear. It is my respectful submission that the questions that I have put to this witness are, indeed, admissible and relevant to the issue. I think the question of membership, of course, is always germain to whether the Applicant union has, in fact, established the majority membership as is required. I recognize that the Board has already gone into its investigation but that does not preclude the company from challenging that. In any event—

THE CHAIRMAN: The challenge will serve one purpose. If the challenge you are raising now inclined the Board to reverify its investigation, we will do so, and then it serves that purpose but, as to the questions, themselves, we won’t allow you in that respect.

MR. DE GRAVES: TO once more make the company’s position clear, this witness then is only being called to establish the status of the union and that is going to be the limitation of the examination and cross-examination.

THE CHAIRMAN: That is correct. Any further questions?

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It is, therefore, apparent that counsel for the respondent sought to cross-examine the witness in order to determine the number of members of the suggested unit who were in favour of its certification. Since that was a matter upon which the union’s right to certification depended and also a matter which the Board had to find in order to determine whether or not it should direct a vote, it was critical to the determination of the Board’s right to make a certification order. It is true that the Board had carried on an investigation and the report of the Board’s officer had been to the effect that a majority did exist but that was only an investigator’s report. What was at issue here was whether or not the Board should so order and once the Board had determined that there should be a hearing then it was the essence of the applications of the principles of natural justice that the Board should hear all relevant evidence upon that subject. Since such evidence was peculiarly within the knowledge of the representatives of the union, it could best be obtained by the cross-examination of the very union officer who had already been sworn and who had given sworn testimony.

The right to cross-examine such an officer on such a topic has already been dealt with by this Court in Toronto Newspaper Guild v. Globe Printing Company[11], where this Court dismissed an appeal from the decision of the Court of Appeal for Ontario which had, in turn, upheld the judgment of Gale J., as he then was, quashing an order for certification. There, at the hearing before the Ontario Labour Relations Board, counsel for the respondents sought to cross‑examine the union secretary to show that since the filling of the application a number of the employees had resigned. On the ground that such evidence was irrelevent, that Board refused permission to so cross-examine, also refused to question the witness on the subject itself or to examine the documents filed or to direct a vote. Reasons for judgment were given by several members of the Court but I wish to quote and adopt the statement made by Kerwin J., as he then was, at p. 23:

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Disregarding paragraph (b), since the Board refused to order a vote as requested by the respondent, this means that the Boards jurisdiction to certify depended upon its being satisfied that the majority of the employees in the Circulation Department were members in good standing of the appellant Union. But the Board said that it was irrelevant whether certain individuals had resigned from the Union and it therefore declined to investigate that all important question. In proceeding to certify, it exceeded its jurisdiction and excess of jurisdiction has invariably been held to be a ground upon which a Superior Court could quash an order of an inferior tribunal.

and also the words of Kellock J. at p. 35:

In the case at bar it was impossible for the board to determine whether any one of the persons alleged to be members of the appellant was in fact a member in good standing if the board refused to enter upon the question as to whether or not, assuming membership to have originally existed, it had continued. This was the very obligation placed upon the board by the statute. By refusing to enter upon it, the board in fact declined jurisdiction. It is well settled that any order pronounced by an inferior tribunal in such circumstances is subject to the supervising jurisdiction of the superior courts, exercisable by way of certiorari.

I wish to quote also the words of Robertson C.J.O. when the case was before the Court of Appeal for Ontario as reported in [1952] O.R. 345 at p. 365:

The Board made its certificate without knowing whether it was true or false. The Board refused to make the inquiry necessary to learn the truth.

It is true that immediately after the Globe and Mail case, the Ontario Labour Relations Board Act was amended by a provision similar in import to s. 29 of the Canada Labour Relations Board Regulations, under the Canada Labour Code, which has been quoted by the Chief Justice so that plainly the material filed by the union upon the question of membership is confidential and no cross-examination should be permitted which dealt with the names of alleged members. However, in the present case, counsel for the appellant was meticulous in specifying to the Board that he did not desire to make any such cross-examination but that he wished only to deal with numbers. The Chief Justice of the Federal Court of Appeal seemed to have some difficulty in understanding relevance or importance of such examination.

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With respect, I differ as I am of the opinion it was the most relevant issue upon which cross‑examination could proceed and the finding of such majority of members in favour of certifying was one of the matters upon which the Board could make a finding before it could make an order for certification.

It has been suggested that the appellant could have required that the investigating officer be required to give testimony in this matter. I do not know why counsel for the appellant could be controlled in the method in which he sought to meet the applicant union’s application for certification and I am very doubtful whether an officer of the Board making a confidential investigation and report to the Board would have been subject to such examination.

I have considered the cases which followed the Globe Printing case and it would seem there has been a certain inclination to narrow its application but, in my view, it is still the ruling decision on the right to ascertain on a hearing before a labour relations board whether or not the applicant union had the necessary majority of members in the proposed unit in favour of certifying. I, therefore, am of the opinion that the Federal Court of Appeal was correct in finding that the refusal to permit the cross-examination which counsel for the respondent here desired to address to the witness for the union was a breach of the principles of natural justice and that, therefore, the certification should be quashed.

I turn next to the issue as to the so-called petition. Again, the facts have been outlined in the reasons for judgment of the Chief Justice and I need not repeat them. I am quite ready to agree that the valid regulations enacted by the Labour Relations Board entitled it to set aside such petition. However, surely in labour relations matters the desire has been to avoid the effect of reliance upon any technicalities and to determine, with as simple a procedure as possible, the rights of the parties in order to avoid industrial strife. This Board was concerned with whether there was a certain majority in favour of certification. Its officer has reported that such a majority existed. Counsel for the respondent had sought in vain to

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cross-examine the witness for the union upon such topic. Then, just before certification was ordered, this petition arrived. It was a graphic illustration of the very considerable possibility that such a majority did not exist. In my view, it was a most deplorable reliance upon technicalities to have simply returned that petition as untimely with no investigation by its own officers or examination in the hearing as to the different position which, at any rate, the petition indicated, and such a course following the Board’s refusal to permit the cross‑examination is again a breach of the principles of natural justice and justifies the decision of the Federal Court of Appeal in quashing the certification order.

It is also noteworthy that the so-called petition was returned to the representative of the union in a letter dated April 24, 1974, which was signed by Marcel Caron, the Secretary of the Canada Labour Relations Board, and that letter read:

The identical submissions which you made under cover of your letter of April 16 and 17, 1974, which you sent by mail and air express, respectively, are not receivable because they are untimely.

Accordingly, all the papers you submitted are returned herewith.

That letter does not indicate that this important matter was ever submitted to the Board for its consideration.

Certain other matters were dealt with by the Federal Court of Appeal in its judgment. Firstly, the Board directed that the unit for certification should exclude the secretary and vice‑president of administration, the vice-president of sales and marketing, the vice-president of the Eastern Region, or the vice-president of operations, and the personnel records clerk. As to all of the persons except the last named, both counsel were in agreement that the certification order had included them by error.

The application for certification had asked for certification of “all office workers of Transair Limited and all related offices except managerial staff”. The formal order for certification was for “all office and clerical employees of Transair Limited including the planning clerk, the technical

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records statistician, and the technical librarian, but excluding” then followed a long list of exclusions which covered such people as the secretaries to the president, the executive vice‑president, senior vice-president, comptroller, etc., but did not cover the vice-presidents referred to above. It is difficult to understand how any such error could be made as would result in the inclusion of such officials as vice-presidents. However, the parties being in agreement as to the propriety of their exclusions, nothing more need be said upon the subject.

The position of the personnel records clerk, however, requires further examination. A perusal of the reasons for judgment delivered by Chief Justice Jackett in the Federal Court of Appeal shows that, in my view, his interpretation of the words of s. 118(p)(ii) of the Canada Labour Code, R.S.C. 1970, c. L-1, i.e.,

a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

accorded with that of the Canada Labour Relations Board, i.e., that the person so to be excluded was one who had confidential knowledge of the conferences of management in reference to industrial relations. The Chief Justice of the Federal Court of Appeal was of the view that the evidence as to the job description of the personnel records clerk brought her within that class. However, the evidence of Mr. L.J. Sinnott for the respondent shows that, in fact, that part of her duties consisted of attending meetings between labour unions and managerial officers, taking minutes of those meetings and distributing them to those who had attended. There could be nothing confidential in that duty as, of course, both management and unions were present at the conferences and the minutes simply stated what had been said and done in the presence of them both. Of course, the duties of this clerk as to personnel records were highly confidential but they were not confidential in reference to industrial relations, only as to personnel relations. Therefore, in my view, there was evidence upon which the Canada Labour Relations Board could properly include the personnel records clerk in the appropriate unit and the

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appeal, considering it as I do as an appeal of the union, should be allowed to the extent that the inclusion of this clerk within the union was appropriate.

I, therefore, would dispose of the appeal as follows.

I would dismiss the appeal of the appellant, Canada Labour Relations Board.

I am somewhat puzzled as to the disposition of costs. The respondent, Transair Limited, has not included any Part IV in its factum and, therefore, I do not find any application for costs in its favour. As the Chief Justice has pointed out in his reasons, counsel for the appellant has not made any application as to costs and, therefore, I have come to the conclusion that I would make no order as to costs in this Court.

I would confirm the order of the Federal Court of Appeal referring the application for certification back to the Canada Labour Relations Board to redefine the bargaining unit to exclude the secretary and the vice-president of administration, the vice-president of sales and marketing, the vice-president of the Eastern Region, and the vice-president of operations, but not the personnel records clerk, and also to reinvestigate and make a new determination concerning the question that arises with reference to the application for certification under para, (c) of s. 126 of the Canada Labour Code.

The judgment of Pigeon and Beetz JJ. was delivered by

BEETZ J.—I have had the advantage of reading the reasons of the Chief Justice and those of Mr. Justice Spence.

I concur with Mr. Justice Spence’s opinion that the appeal was not properly taken by the Canada Labour Relations Board; I would, however, as he does, deal with the questions in issue as if the union instead of the Board had been an appellant before this Court.

I agree with the Chief Justice that there is no substance in the first question of law on which

[Page 757]

leave was granted and that no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit. In view of the wording of the formal judgment of the Federal Court of Appeal, I do not think the question really does arise.

I agree with Mr. Justice Spence’s disposition of the second question and with the Chief Justice’s disposition of the remaining questions.

In the result, I would dispose of the appeal as proposed by the Chief Justice.

Appeal allowed, MARTLAND, RITCHIE and SPENCE JJ. dissenting.

Solicitors for the appellant: Gallagher, Chapman, Greenberg, McGregor & Sheps, Winnipeg.

Solicitors for the respondent, Transair Limited: Christie, Turner, De Graves, McKay, Settle and Kennedy, Winnipeg.

Solicitors for the (respondent), Canadian Association of Industrial, Mechanical and Allied Workers, Local # 3: Nozick & Walsh, Winnipeg.