Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 SCR 157

Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157

 

Canadian Broadcasting Corporation                                                Appellant

 

v.

 

Canada Labour Relations Board                                                      Respondent

 

and

 

Alliance of Canadian Cinema, Television and

Radio Artists                                                                                      Respondent

 

and

 

Dale Goldhawk            Respondent

 

Indexed as:  Canadian Broadcasting Corp. v. Canada (Labour Relations Board)

 

File No.:  23142.

 

1994:  March 14; 1995:  January 27.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the federal court of appeal

 

                   Labour relations ‑‑ Unfair labour practices ‑‑ Interference ‑‑ Justification ‑‑ CBC forcing journalist to choose between his position as union president and his position as radio host following publication of his article against free trade in union newspaper ‑‑ Canada Labour Relations Board deciding CBC's action constituting unfair labour practice under s. 94(1) (a) of Canada Labour Code  and rejecting CBC's journalistic policy as justification for its action ‑‑ Whether Board's decision should be set aside ‑‑ Standard of review applicable to Board's decision.

 

                   Judicial review ‑‑ Standard of review ‑‑ Interpretation of external statute ‑‑ Standard of review applicable where administrative tribunal interprets external statute ‑‑ Whether administrative tribunal entitled to curial deference.

 

                   The respondent G was the host of a current affairs radio program on CBC and the president of the union which represents writers, journalists and performers.  Under the union's by‑laws, the president is also its official spokesperson.  In the midst of an election campaign in which free trade was a central issue, G wrote an article against free trade in the union newspaper.  The CBC was concerned that his article and his public involvement as president of the union violated the CBC's journalistic policy requiring impartiality of journalists.  It was agreed that, as an interim measure, G would cease hosting his program until after election day.  After the election, G offered to relinquish his duties as the union's spokesperson, while remaining its president, in order to accommodate the CBC's concerns.  The CBC rejected the offer and forced him to choose between his job as host of a radio program and his role as the president of the union.  G resigned as union president and resumed hosting his radio program.  The union filed a complaint with the Canada Labour Relations Board, alleging that the CBC had interfered with the activities of a trade union, contrary to s. 94(1) (a) of the Canada Labour Code .  A majority of the Board upheld the complaint.  The majority found that G's article was a union activity protected by s. 94(1) (a) and concluded that the CBC committed an unfair labour practice in forcing him to choose between the two positions and that the CBC's journalistic policy did not justify its action.  The Federal Court of Appeal dismissed the CBC's application for judicial review.

 

                   Held (McLachlin J. dissenting):  The appeal should be dismissed.

 

                   Per Lamer C.J. and Cory, Iacobucci and Major JJ.: The proper standard of judicial review to be applied to the Board's decision that the CBC had committed an unfair labour practice is one of patent unreasonableness.  The issue of whether there was interference with the administration of a trade union and the representation of employees by that union, when the CBC asked G to choose between his position as union president and his position as radio host, is a question of law that Parliament intended to be answered by the Board, and not by the courts.  It is a central part of the issue of whether there has been an unfair labour practice, and as such forms part of the question which Parliament, through the Code, has given the Board the exclusive jurisdiction to resolve.  This jurisdiction encompasses the authority to develop a test for when such interference is established, and to define the scope of the concepts of "administration" of a union and "representation" of employees.  The test developed by the Board to adjudicate the s. 94(1)(a) claims involves (1) a characterization of the activities of the union and a determination as to whether there has been employer interference with them; and (2), if such interference is made out by the union, whether there was justification for the interference.  To use this analytical framework to segregate the first part of the test and label it jurisdictional ignores the fact that this issue is part of the substance of the s. 94(1)(a) determination.  It is also akin to an endorsement of the preliminary questions doctrine, which this Court in recent decisions has declined to adopt as a useful test for delineating jurisdiction.  Support for the conclusion that this determination is not jurisdictional in nature is found in a functional analysis of the Canada Labour Code  as a whole.  A broad privative clause is combined with wide powers in the Board to deal with questions put before it.  Moreover, the terms at issue in this appeal are not specifically defined in the Code and the Board has developed an extensive jurisprudence to determine whether an allegation of a violation of s. 94(1)(a) has been sustained. By virtue of its specialized expertise, the Board is uniquely suited to that determination and courts should defer to that expertise unless it can be said that the Board's decision was patently unreasonable.

 

                   As a general rule, curial deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation, although in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it, a measure of deference may be appropriate. This does not mean, however, that every time an administrative tribunal encounters an external statute in the course of its determination, the decision as a whole becomes open to review on a standard of correctness.  The tribunal may have to be correct in an isolated interpretation of external legislation, but the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness.  The correctness of the interpretation of the external statute may affect the overall reasonableness of the decision.  Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole.  Here, the fact that the CBC is a creation of, and is governed by, an external statute ‑‑ the Broadcasting Act ‑‑ does not raise the overall standard of review to one of correctness, even though no deference will be shown to the Board in its interpretation of the provisions of that statute. 

 

                   The Board's delineation of the relevance of external statutory imperatives in its s. 94(1)(a) analysis is within its jurisdiction. Moreover, the Board's treatment of the relationship between the Broadcasting Act, or the related journalistic policy, and the obligations imposed on the CBC by the Canada Labour Code  was not in error.  The general requirement in the Broadcasting Act to provide a balanced information service must be interpreted in a way that is consistent with the specific obligations contained in the Code.  The Board's own analytical framework for s. 94(1)(a) contemplates such an accommodation.  The journalistic policy itself, however, does not enjoy the status of legislation.  It is an internal management directive promulgated by the CBC based on its own interpretation of its obligations under the Broadcasting Act.  This policy cannot oust the CBC's legal obligations as found in the Canada Labour Code .

 

                   The Board's decision that the CBC had interfered with the administration of a trade union or the representation of employees by that union was not patently unreasonable.  The Board, while recognizing that s. 94(1)(a) has its limits, found that the publication by a union and its officer of an article in a union newsletter expressing an opinion that a government economic policy constituted a threat or a benefit to its members was protected by s. 94(1)(a).  Given the context, the extension of the content protection was not wholly unwarranted.  The substance of the article was not aimed at the employer, but rather at gathering support from members for the union's official position.  Further, the decision of the majority was arrived at in a principled manner and was not irrational.  The Board was entitled to apply the law as found in existing decisions to new and analogous facts.  It is not unreasonable to find a connection between the collective bargaining relationship and the activities of unions as they relate to external social issues affecting their members.

 

                   Alternatively, the Board also found that the CBC's action in refusing to accept G's offer that he retain his position as union president while no longer serving as its spokesperson had the effect of preventing any broadcast journalist from being the president of the union, and thus affected the right of the union to choose its president from among its entire membership.  This act alone amounted to a violation of the Code.  On any standard of review, the Board was entitled to find that the election of whichever person the union members wish to have as their president is an activity that falls within the concept of "administration" of a trade union or "representation" of employees by that union.

 

                   Finally, the Board's conclusion that the CBC had failed to show a valid and compelling business justification for its interference is not unreasonable.  The Board considered the journalistic policy but did not find that it compelled the CBC to take the action that it did in order to fulfil its requirement of impartiality.  Even if there were obligations relating to impartiality imposed by the Broadcasting Act on the CBC, they were not determinative, given the Board's finding that there was no causal connection between the requirement of impartiality and the continued presidency of G.

 

                   Per Gonthier J.: Subject to the comment of L'Heureux‑Dubé J., the reasons of Iacobucci J. were agreed with.

 

                   Per L'Heureux‑Dubé J.:  Subject to the following comment, Iacobucci J.'s reasons were substantially agreed with.  An administrative tribunal protected by a full privative clause, as is the Board, is entitled to curial deference in its interpretation of an external statute.  The interpretation of an external statute cannot be characterized as a jurisdictional question as such. Consequently, denying curial deference to such a tribunal in this respect seems inconsistent with the jurisprudence of this Court concerning the standard of review of decisions of these tribunals.  The Board's interpretation of an external statute thus has no effect on the appropriate standard of judicial review, which, in this case, is one of patent unreasonableness since the decision reached by the Board is entirely within its jurisdiction.

 

                   Per La Forest J.:  This case raises a very narrow issue.  The alternative ground upon which Iacobucci J. supports the Board's decision is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.

 

                   Per Sopinka J.:  The  pragmatic and functional approach is to be used to ascertain whether Parliament intended that the determination of the matters included within s. 94(1) (a) of the Canada Labour Code  be left to the Board or whether the section was a provision intended to limit the Board's jurisdiction.  In making this determination, the focus is not on whether the union's activity in opposing free trade was intended by Parliament to be included in s. 94(1) (a), but rather on what activity in general Parliament intended to include in the section and its possible reach if not interpreted correctly in accordance with the legislative intention.  Given the range of union activity which could be the subject of a complaint under s. 94(1)(a), much of which has little or nothing to do with the purposes of the Code, Parliament cannot have intended to leave it to the Board to determine which part of this activity can be swept into its jurisdiction so as to enable it to subject an employer to sanctions for engaging in "unfair labour practices".   Accordingly, s. 94(1)(a) is a provision intended to limit the Board's jurisdiction and the standard of review applicable to the Board's decision is correctness.

 

                   The alternative ground upon which Iacobucci J. supports the Board's decision, however, is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.

 

                   Per McLachlin J. (dissenting):  The functional test is question‑specific and must be applied to each question which the Board considered, and the appropriate standard of review must then be applied to its answers.  This requirement is not obviated by the fact that a question is part of the substance of the dispute, nor by the fact that it may be "preliminary" or jurisdictional.

 

                   The first question the Board was required to consider was whether the union's statements on political matters outside the collective bargaining context were protected by s. 94(1) (a) of the Canada Labour Code .  A functional analysis clearly demonstrates that the interpretation of the ambit of s. 94(1)(a) lies at the core of the Board's mandate and was intended by Parliament to be left to the Board, notwithstanding that the question goes to the Board's power or "jurisdiction".  A court can therefore only interfere with the Board's conclusion that G's statements were protected by the Code if its conclusion is patently unreasonable.  This conclusion is patently unreasonable from the perspective of both the purpose of the Code and the authorities.  The purpose of the Code is to promote and preserve the collective bargaining system and the protection provided by s. 94(1)(a) to employees who speak out is confined to that purpose.  Thus, only union statements relating to the collective bargaining process fall within the ambit of s. 94(1)(a) protection; statements made for personal or political reasons are not protected.  The courts have made the same distinction.  In arriving at the conclusion that all statements of union officials are protected by the Code, except those which are abusive, the majority of the Board failed to address the real issue and made an unsupportable conclusion.  The inclusion of all non‑abusive union statements within the ambit of s. 94(1)(a) is not a rational extension of the law into analogous areas but rather an attempt to take protection into areas where there is neither precedent nor practical justification for protection.

 

                   On the question of interference with a union activity, the applicable standard of review is also patent unreasonability.  Had the CBC's action in putting G to a choice between continuing as union president and continuing as host of his program been in response of a statement made by G in the course of collective bargaining, it would clearly have constituted interference with a union activity under s. 94(1)(a).

 

                   Finally, assuming the CBC interfered with a union activity protected by the Code, the standard of review applicable to the Board's conclusion on the question of the justifiability of the CBC's conduct under its statutory regime is correctness.  This question is outside the special competence of the Board, which has no expertise in interpreting this Broadcasting Act or its regulatory regime.  Given the CBC's obligation under the Broadcasting Act to maintain the perception of impartiality in its public affairs broadcasts, the majority of the Board erred in finding that the legislation, policy and administrative review process governing the CBC did not justify it in interfering.  In treating the CBC as a private enterprise governed only by a flexible management directive which must yield to the superior legal demands of s. 94(1)(a), the Board failed to consider the special obligation imposed on the CBC by law.  The CBC policy was capable of being considered a "compelling reason" for interfering with the activity of the union.

 

Cases Cited

 

By Iacobucci J.

 

                   Distinguished: Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266; Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384; referred to:  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canadian Broadcasting Corp. (1991), 86 di 92; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Haldimand‑Norfolk Regional Board of Commissioners of Police v. Ontario Nurses' Association (1990), 41 O.A.C. 148; McLeod v. Egan, [1975] 1 S.C.R. 517; Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Wentworth County Board of Education v. Wentworth Women Teachers' Assn. (1991), 80 D.L.R. (4th) 558; Ontario Nurses' Assn. v. Etobicoke General Hospital (1993), 14 O.R. (3d) 40; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Quan v. Canada (Treasury Board), [1990] 2 F.C. 191; McDonnell Douglas Canada Ltd., [1988] O.L.R.B. Rep. May 498; Canada Post Corp. (1987), 71 di 215; Canada Post Corp. (1988), 75 di 189.

 

By L'Heureux‑Dubé J.

 

                   Distinguished:  McLeod v. Egan, [1975] 1 S.C.R. 517; referred to:  Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.

 

By Sopinka J.

 

                   Referred to:  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.

 

By McLachlin J. (dissenting)

 

                   U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384; MacMillan Bloedel Ltd. v. British Columbia Hydro & Power Authority (1992), 72 B.C.L.R. (2d) 273; British Columbia Hydro & Power Authority and Int'l Brotherhood of Electrical Workers, Locals 258 and 213, [1976] 2 C.L.R.B.R. 410; Re Inco Ltd. and United Steelworkers of America, Local 6166 (1978), 86 D.L.R. (3d) 407 (Man. C.A.), aff'g (1977), 81 D.L.R. (3d) 469 (Man. Q.B.); Health Labour Relations Association and Hospital Employees' Union, Local No. 180 (1983), 3 C.L.R.B.R. (N.S.) 390; Metro Transit Operating Co. v. Independant Canadian Transit Union, Local 3, 83 C.L.L.C. ¶ 16,054; Re United Glass & Ceramic Workers of North America and Domglas Ltd. (1978), 85 D.L.R. (3d) 118; British Broadcasting Corp. v. Hearn, [1978] 1 All E.R. 111; Mercury Communications Ltd. v. Scott‑Garner, [1984] 1 All E.R. 179 (C.A.); Associated Newspapers Group Ltd. v. Flynn (1970), 10 K.I.R. 17; Luce v. London Borough of Bexley, [1990] I.R.L.R. 422; Canada Post Corp. (1987), 71 di 215; Québecair/Air Québec (1987), 72 di 44; Canada Post Corp. (1988), 75 di 189; Wardair Canada Inc. (1988), 76 di 103; Cadillac Fairview Corp. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206; McLeod v. Egan, [1975] 1 S.C.R. 517; Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Re Canadian Broadcasting Corp. and National Association of Broadcast Employees and Technicians (1973), 4 L.A.C. (2d) 263.

 

Statutes and Regulations Cited

 

Broadcasting Act, R.S.C., 1985, c. B‑9, s. 3.

 

Canada Labour Code , R.S.C., 1985, c. L‑2 , Part I "preamble", ss. 8(1), 18, 22 [am. 1990, c. 8, s. 56], 94(1)(a), (3), 96, 97(1), 98(1), (4), 99.

 

Federal Court Act , R.S.C., 1985, c. F‑7 , s. 18.1(4) (c) [ad. 1990, c. 8, s. 5].

 

Authors Cited

 

Adams, George W.  Canadian Labour Law, 2nd ed.  Aurora, Ont.:  Canada Law Book, 1993 (loose‑leaf).

 

Arthurs, Harry William, et al.  Labour Law and Industrial Relations in Canada, 4th ed.  Markham, Ont.: Butterworths, 1993.

 

Bryden, Philip L.  "Administrative Law ‑‑ Review for Jurisdictional Error ‑‑ Labour Board Decision Held to be Patently Unreasonable:  United Association of Journeymen and Apprentices of the Pipefitting Industry v. W.W. Lester (1978) Ltd." (1992), 71 Can. Bar Rev. 580.

 

Citrine's Trade Union Law, 3rd ed.  By M. A. Hickling.  London:  Stevens & Sons Ltd., 1967.

 

Gall, Peter A.  "Judicial Review of Labour Tribunals:  A Functional Approach", in Proceedings of the Administrative Law Conference, held at the University of British Columbia, Faculty of Law, on October 18 and 19, 1979.  Vancouver:  U.B.C. Law Review, 1981, 305.

 

MacLauchlan, H. Wade.  "Reconciling Curial Deference with a Functional Approach in Substantive and Procedural Judicial Review"  (1993), 7 C.J.A.L.P. 1.

 

Sweet & Maxwell's Encyclopedia of Employment Law, vol. 2.  London:  Sweet & Maxwell, 1992 (loose‑leaf).

 

Weiler, Paul.  Reconcilable Differences. Toronto:  Carswell, 1980.

 

                   APPEAL from a judgment of the Federal Court of Appeal, [1992] 2 F.C. 665, 92 D.L.R. (4th) 316, 141 N.R. 116, 92 C.L.L.C. ¶ 14,035, dismissing a CBC's application to review and set aside a decision of the Canada Labour Relations Board (1990), 83 di 102, 91 C.L.L.C. ¶ 16,007.  Appeal dismissed, McLachlin J. dissenting.

 

                   Roy L. Heenan and Tom Brady, for the appellant.

 

                   Peter C. Engelmann and Johane Tremblay, for the respondent the Canada Labour Relations Board.

 

                   Paul J. Falzone and Aubrey E. Golden, Q.C., for the respondents the Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk.

 

                   The judgment of Lamer C.J. and Cory, Iacobucci and Major JJ. was delivered by

 

1                 Iacobucci J. -- The Canadian Broadcasting Corporation ("CBC") seeks judicial review of the decision of the Canada Labour Relations Board that the CBC interfered with the activities of the respondent trade union, the Alliance of Canadian Cinema, Television and Radio Artists ("ACTRA"), in contravention of s. 94(1) (a) of the Canada Labour Code , R.S.C., 1985, c. L-2 .

 

I.  Facts

 

2                 The membership of ACTRA is divided into three guilds:  writers, journalists and performers.  ACTRA, like many unions, takes official positions on various issues.  For example, it supports the Canadian content rule for broadcasters.  It apparently also opposes free trade.  ACTRA has an official newsletter, ACTRASCOPE, which is distributed to its 10,000 members across Canada.

 

3                 ACTRA's by-laws provide that the president of ACTRA is also to be its official spokesperson.  In 1988 the president of ACTRA was a journalist, Dale Goldhawk.  Goldhawk had been hired by the CBC in January 1988 to host a national weekly open-line current affairs radio program, Cross Country Checkup.  At the time of his hiring, the CBC was aware that he was the president of ACTRA.

 

4                 In the late summer of 1988, Goldhawk wrote an article in "The President Reports" column of the fall issue of ACTRASCOPE.  Under the title "Election brings the trade debate to a boil", he took a strong position against the Free Trade Agreement then being negotiated with the United States.  In the article he attacked the agreement and invited membership of ACTRA to mount a campaign in opposition.  At the time of the publication of the article, the country was in the midst of an election campaign in which free trade was a central issue.

 

5                 In November 1988, the existence of Goldhawk's column was made known to the general public in a newspaper article written by Charles Lynch, a journalist and long-standing member of ACTRA.  Lynch's article, entitled "Free trade:  foes are alive and well and working for the CBC", was published in the Ottawa Citizen and the Vancouver Province.  In his article, Lynch argued that the listening public was entitled to on-air disclosure of Goldhawk's role in ACTRA and the union's position on free trade.

 

6                 Lynch's article was brought to the attention of the area head of current affairs for the CBC Radio.  This prompted a series of meetings between Goldhawk and representatives of the CBC to determine the appropriate course of action.  At issue was whether Goldhawk's article, and his public involvement as president of ACTRA, violated the Journalistic Policy of the CBC.  It was agreed that, as an interim measure, Goldhawk would cease hosting Cross Country Checkup until after election day.  Goldhawk simultaneously withdrew from any further public involvement on behalf of ACTRA.

 

7                 After the election, Goldhawk offered to relinquish his duties as ACTRA's spokesperson, while remaining its president, in order to accommodate the concerns of the CBC.  This offer was rejected.  The CBC told Goldhawk that he had to choose between his job as host of Cross Country Checkup and his role as the president of ACTRA.  Goldhawk resigned as ACTRA president and resumed hosting his radio program.

 

8                 The union filed a complaint with the respondent Canada Labour Relations Board, alleging violations by the CBC of ss. 94(1)(a), 94(3)(a)(i), 94(3)(b), 94(3)(e) and 96 of the Code.  A majority of the Board found that the CBC had violated s. 94(1) (a) of the Canada Labour Code , and a declaration to that effect was issued:  (1990), 83 di 102, 91 C.L.L.C. ¶ 16,007.  The Federal Court of Appeal unanimously dismissed the CBC's application for judicial review:  [1992] 2 F.C. 665, 92 D.L.R. (4th) 316, 141 N.R. 116, 92 C.L.L.C. ¶ 14,035.  The CBC now appeals to this Court.

 

II.  Relevant Statutory Provisions

 

Canada Labour Code , R.S.C., 1985, c. L-2 

 

     8. (1) Every employee is free to join the trade union of his choice and to participate in its lawful activities.

 

 

     22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act  on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

 

     (2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall

 

(a) be questioned, reviewed, prohibited or restrained, or

 

(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

 

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

 

 

                          94. (1)  No employer or person acting on behalf of an employer          shall

 

                   (a)  participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union;

 

                                                                   . . .

 

                          (3)  No employer or person acting on behalf of an employer shall

 

(a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person

 

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of a trade union or participates in the promotion, formation or administration of a trade union,

 

                                                                   . . .

 

(b) impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred on him by this Part;

 

                                                                   . . .

 

(e) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a trade union. . . .

 

 

                   96. No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union.

 

98. . . .

 

                          (4) Where a complaint is made in writing . . . in respect of an   alleged failure by an employer or any person acting on behalf of an      employer to comply with subsection 94(3), the written complaint is      itself evidence that such failure actually occurred and, if any party to                                           the complaint proceedings alleges that such failure did not occur, the    burden of proof thereof is on that party.

 

III.  Judgments Below

 

Canada Labour Relations Board  (1990), 83 di 102

 

                   Majority (Vice-Chairman Serge Brault and Member Linda Parsons)

 

9                 At the outset of their extensive reasons, the majority stated that the issue to be decided was whether the Canada Labour Code  was violated when Goldhawk was asked to choose between his position as a radio host and his position as president of the union.

 

10               On the issue of the burden of proof, the majority noted that s. 98(4) of the Code placed the onus of proof on the employer in respect of all of the sections invoked except ss. 94(1)(a) and 96.  The majority pointed out that a distinction could also be drawn between s. 94(1)(a), and the other sections invoked by the union, in respect of the issue of motive.  To succeed under s. 94(1)(a), it was not necessary for a complainant to establish anti-union animus on the part of the employer.  Rather, this provision called for an objective test which focused on the effect of the employer's actions on the legitimate rights of employees or their unions.

 

11               The majority added, however, that not every difficulty encountered by a union in its formation and administration would give rise to a finding that s. 94(1)(a) had been violated.  The Board would instead apply a balancing test, which considered whether the adverse impact on union activity was counterbalanced by a "sufficient or legitimate managerial, entrepreneurial, or collective bargaining justification" (p. 128).  In cases where the balance was equal, motive would be the determining factor.

 

12               In defining what amounted to a "legitimate management interest", it was clear that the detrimental effect on entrepreneurial interests had to be real and to constitute more than a minor annoyance or inconvenience to the employer.  The majority summarized the test to be applied under s. 94(1)(a) in the following terms (at p. 131):

 

     In brief, under the Canada Labour Code , an employer's actions that actually interfere with employee solicitation on the job will indeed be subject to a balancing test and will be found illegal pursuant to section 94(1)(a) unless compelling and exceptional circumstances justify such bans.  Other kinds of employer's decisions that actually interfere with the rights protected under section 94(1)(a) will be assessed on the basis that the Code takes precedence over any employer rule. . . .

 

13               The majority considered whether Goldhawk was engaged in a lawful union activity contemplated by the Code when he signed his article in ACTRASCOPE.  The majority recognized that s. 94(1)(a) could not serve as an umbrella for all union activities.  The activity in which Goldhawk participated was the signing of an article in a union newspaper as spokesperson for that union.  It was the role of the Board to decide whether ACTRA as a union and Goldhawk as a union official were entitled to statutory protection in this situation.  The majority answered this question in the affirmative, and commented (at p. 133):

 

In the instant case, Mr. Goldhawk's article was published in the union's newsletter and was aimed at a limited union readership.  It seems reasonable to assume that under the Code a union president may at least say to his troops verbally or in writing what he can say to the public at large.

 

 

14               The majority noted that the Broadcasting Act, R.S.C., 1985, c. B-9 (as it then read), provided that Goldhawk was not a public servant.  His labour relations were to be governed by the same provisions of the Code as those of persons working for private broadcasters.  After reviewing numerous previous decisions of the Board, the majority (at p. 137) referred to Canada Post Corp. (1988), 75 di 189, where the Board set out the following guidelines on the right of a union officer to speak publicly:

 

[The statement] would have to be relevant to the policies, interests and concerns of the union as such, although it would not have to be something virtually scripted by the union and followed slavishly by the officer.  The protection of the Code would not extend to a union officer who used his or her position to make public comments concerning an employer in furtherance of a personal or other objective which could not be linked to the interests of the collectivity.

 

Statements which were malicious or recklessly untrue would lose the protection of the Code.

 

15               The majority noted that all but one of the decisions cited by the parties dealt with public statements aimed directly at the employer.  They made it clear that the right of union officials to make such statements flowed from the Code, and that officials acting in good faith could expect statutory protection that was not necessarily granted to all employees.  This jurisprudence, however, was of limited application in the present case, since it concerned an article published by a union official in a union newspaper in a context where he was gathering support within the union for a position it had officially adopted.  The majority concluded (at pp. 144-45):

 

                   When a union finds that a government economic policy such as free trade constitutes a threat or a benefit to its membership, an article on that subject appearing in a union publication is indeed a lawful union activity under the Code.

 

     For the majority, for a union of artists and performers who work in an often highly subsidized industry to take a position on a Free Trade Agreement is as legitimate as it is for the Teamsters Union to express their opinion on deregulation in the transportation industry.

 

     Further, the fact that Mr. Goldhawk's role as a spokesperson was determined by ACTRA in its by-laws is protected under the right of unions to adopt their own constitutions and rules protected by section 94(1)(a) of the Code. . . .

 

16               The majority found that the choice given to Goldhawk, to resign his post with ACTRA or to lose his job with the CBC, was not tainted with anti-union animus, and therefore no violation of ss. 94(3)(a)(i), 94(3)(e) or 96 could be established.  ACTRA does not dispute this finding.

 

17               Turning to the justification part of the s. 94(1)(a) test, the majority noted that the question was not whether the CBC's Journalistic Policy was reasonable, as arbitration boards in other situations had found, but whether it was legal to apply it to Goldhawk in the circumstances.  The particular application of the Policy had to be compatible with the CBC's statutory obligations under the Code.  The majority considered whether the CBC had shown compelling business reasons for its decision.  They noted that if the bargaining unit represented by ACTRA had been composed solely of on-air journalists, the union would have been paralysed.  In holding that a violation of s. 94(1)(a) had been established, the Board concluded (at pp. 147-48):

 

Past experience within the CBC shows that other means, such as on-air disclosure, were used to ensure the public's right to impartiality.  Further, we do not see how Mr. Goldhawk's forced resignation made him less identifiable with a controversial issue than before.  In fact, it could be argued at least in the eyes of some, that he was sacrificed to free trade and in that sense that he is still very much identified with the issue, regardless of his resigning his union office.

 

 

18               The majority found that Mr. Goldhawk's article was related to the interests of the collectivity of the union and was neither reckless nor maliciously untrue.  The effect of the CBC's decision was to prevent a CBC journalist from being the president of ACTRA.  That alone constituted a violation of the Code.  Moreover, on an application of the balancing test, it was clear that the CBC did not try to reconcile its own legitimate business interests with those of Goldhawk as a union member.  It failed to show any convincing causal relationship between its image of impartiality and Goldhawk's continuing to hold office as ACTRA president.  The majority found a violation of s. 94(1)(a) of the Code, and issued a declaration and accompanying cease and desist order.

 

                   Dissent  (Member Evelyn Bourassa)

 

19               The dissenting member agreed with the factual findings of the majority, including the finding of an absence of anti-union animus.  However, she disagreed with the conclusion of the majority that the CBC had interfered with the activities of a trade union.  The protection afforded by the unfair labour practice provisions of the Code did not extend to all lawful activities of a trade union, and she would have characterized the activities for which the union sought protection as purely political activities.  The free trade debate was not an issue between ACTRA and the CBC in the context of their collective bargaining relationship or their general labour relations.

 

20               The dissenting member noted that the Canada Labour Relations Board had jurisdiction over the activities of trade unions in so far as those activities concerned the union's role as bargaining agent for employees involved in federal works, undertakings or businesses.  Trade unions themselves were not federal undertakings.  Therefore, an interpretation of the Code that would extend its application to activities outside of the collective bargaining relationship seemed to her unwarranted in light of the constitutional uncertainty surrounding the authority of Parliament and of the federal Board over trade unions per se.

 

21               The dissenting member asserted that the position of the majority ignored the reality of today's unions, which involve themselves in many situations that do not relate to collective bargaining.  Such activities were legitimate, in the sense that they were not illegal, but they were not protected by the Code.  She distinguished the cases cited by the majority, and noted that even these cases pointed out that the public statements under scrutiny had to relate to collective bargaining matters.  As for the Canada Post Corp. cases ((1987), 71 di 215 and (1988), 75 di 189), they did not involve an employer who was involved in the sensitive areas of communications and broadcast journalism.

 

22               The dissenting member therefore declined to deal with the complaint on the merits, but did note that the concern of the CBC regarding its impartiality was not just a legitimate concern, it was a matter with which it had to be concerned.  Its unique role as a broadcaster with a mandate to promote national unity, and its role as a public broadcaster receiving a significant portion of its budget from public funds, demanded that the CBC maintain the highest standards of impartiality.  She would have dismissed the complaint.

 

Federal Court of Appeal, [1992] 2 F.C. 665 (Pratte, Desjardins and Décary JJ.A.)

 

 

23               Desjardins J.A. set out the findings of the Board and noted that the applicant's position was that the Board had exceeded its jurisdiction by applying the unfair labour practice provisions of the Code to protect political activities by the union that were wholly divorced from collective bargaining, by wrongly interpreting or failing to apply the provisions of the Broadcasting Act and of CBC's Journalistic Policy, and by giving an unreasonable interpretation to s. 94(1)(a).

 

24               Desjardins J.A. held that the Board was within its jurisdiction when it embarked on its consideration of whether the CBC had engaged in an unfair labour practice.  She stated (at p. 678):

 

The act of coercing the president of a union to resign because of statements made in his capacity as president and spokesperson of that union can reasonably be viewed prima facie as an act of interference with the administration of a trade union within the meaning of paragraph 94(1) (a) of the Canada Labour Code .

 

Therefore, the burden shifted to the CBC to show that there were compelling and justifiable business reasons warranting its action.

 

25               In the view of Desjardins J.A., it was at best unclear whether the CBC's Journalistic Policy, as formulated, was mandated by the Broadcasting Act.  The CRTC had never made compliance with this policy a condition of the renewal of the CBC's licence.  The most that could be said about the Journalistic Policy was that it represented a management directive from the CBC to its employees in an effort to comply with its special mandate.

 

26               Desjardins J.A. concluded (at pp. 679-80):

 

     The test applied by the Board then requires that a close causal relationship between the employer's reason and action be established.  In the case at bar, the reasons advanced by the CBC, namely the violation of its Journalistic Policy, were canvassed by the Board, a majority of which found that it did not justify the action taken by the CBC.  Whether or not I agree with the view of the majority, it is one which was within its domain to reach and which was not reached in a patently unreasonable manner.

 

 

She distinguished the cases cited by the appellant as relating to the issue of jurisdiction under labour legislation, not to the balancing of competing legitimate interests, and dismissed the appeal.

 

IV.  Issues

 

27               There are basically two issues in this appeal.  The first concerns the scope of the Board's jurisdiction in the application of s. 94(1) (a) of the Canada Labour Code .  The second is whether the Board committed a jurisdictional error in holding that the actions of the CBC amounted to an unjustified interference with the administration of a trade union in violation of s. 94(1) (a).  While the appellant alleges that the Board's interpretation and application of the Broadcasting Act and the Journalistic Policy of the CBC was improper, this issue is subsumed within, and can be considered in the context of, these broader questions.

 

V.  Analysis

 

A.  The Standard of Review

 

1.  General Principles

 

28               The first step in the judicial review of an administrative tribunal's decision is to determine the appropriate standard of review.  As was noted in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at pp. 589-90:

 

There exist various standards of review with respect to the myriad of administrative agencies that exist in our country.  The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal.  In answering this question, the courts have looked at various factors.  Included in the analysis is an examination of the tribunal's role or function.  Also crucial is whether or not the agency's decisions are protected by a privative clause.  Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.

 

 

 

Having regard to these and other factors, the courts have developed a spectrum that ranges from the standard of patent unreasonableness at one extreme to that of correctness at the other.  In this regard see generally:  H. Wade MacLauchlan,  "Reconciling Curial Deference with a Functional Approach in Substantive and Procedural Judicial Review" (1993), 7 C.J.A.L.P. 1.

 

29               Generally speaking, where the tribunal whose decision is under review is protected by a broad privative clause, its decision is subject to review on a standard of patent unreasonableness.  However, this is only true so long as the tribunal has not committed a jurisdictional error.  Jurisdictional questions addressed by the tribunal are independently reviewed on a correctness standard.  An error on such a jurisdictional question will result in the entire decision of the tribunal being set aside.

 

30               In distinguishing jurisdictional questions from questions of law within a tribunal's jurisdiction, this Court has eschewed a formalistic approach.  Rather, it has endorsed a "pragmatic and functional analysis",  to use the words of Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.  In that decision Beetz J. noted, at p. 1088, that it was relevant for the reviewing court to examine:

 

. . . not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.

 

The goal is to determine whether the legislature intended that the question in issue be ultimately decided by the tribunal, or rather by the courts.

 

                   2.  Application of General Principles to this Appeal

 

31               This framework has been applied by this Court in the labour relations context in numerous decisions, including:  Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 ("PSAC No. 1"); CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; and Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 ("PSAC No. 2").  The labour relations tribunal, in its federal and provincial manifestations, is a classic example of an administrative body which is both highly specialized and highly insulated from review.  Decisions of the federal Board are protected by a broad privative clause, found in s. 22 of the Code.  The Canada Labour Relations Board must develop a coherent and workable structure for the application of the numerous statutory provisions which govern the labour relations of the employers and employees whose operations fall within federal jurisdiction.  In order for these workers and their employers to receive rapid resolution of their disputes in a manner which can be rationalized with their other rights and duties under the Canada Labour Code , the decisions of the Board cannot routinely be overturned by the courts whenever they disagree with the Board's treatment of an isolated issue.  Thus the applicable standard of judicial review is one of patent unreasonableness so long as the Board has not committed a jurisdictional error. 

 

32               The appellant CBC argued before this Court that the decision by the Board that employer restrictions on the purely political speech of an employee, in his capacity as a union official, could give rise to a finding of an unfair labour practice within s. 94(1)(a) of the Code, was a jurisdiction-limiting decision that should be reviewed on a standard of correctness.  In my view, however, this is too narrow a characterization of the question before the Board, and casts the issue in a way which pre-determines certain aspects of it.  The Board itself characterized the issue before it in much simpler and, I believe, more accurate, terms (at p. 124):

 

What is in question is whether the Code was violated when, on or about November 22, 1988, Mr. Goldhawk was asked to choose between his position as host of "Cross Country Checkup" and his position as president of ACTRA.  That is the issue.

 

 

33               In its s. 94(1)(a) determination, the Board was first required to decide whether the activities of the union that were affected by the ultimatum given to Goldhawk that he resign as president or lose his job as an on-air host were part of the administration of a trade union or representation by the union of its members.  The question is not whether purely political statements by a union constitute administration of, or representation by, a union.  The question is whether the ability of the union to elect from its entire membership the person who would be its president and its spokesperson on political as well as collective bargaining issues was part of the administration of, or representation of employees by, a trade union.

 

34               With this in mind, we are asked to decide, in the face of the appellant's admission that the Board had jurisdiction in the narrow sense to enter into an inquiry as to whether the CBC had committed an unfair labour practice, whether the interpretation and definition of the concepts of "administration" and "representation" were jurisdictional questions.  The starting point in this analysis must be the recognition that, when dealing with a tribunal as specialized as the Canada Labour Relations Board, inherent in whose functioning is the need to resolve disputes quickly and with finality, courts should be reluctant to characterize a provision as jurisdictional unless it is clear that it should be so labelled:  Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("CUPE"), at p. 233.

 

35               It is instructive to compare the situation in this appeal with that facing the Board in PSAC No. 1, supra, where the proper standard of review was squarely in issue.  That case concerned a decision of the Public Service Staff Relations Board that certain teachers working in a federal penitentiary were "employees" of the Public Service within the meaning of the Public Service Staff Relations Act .  Sopinka J., for the majority, concluded that the interpretation of the term "employees" contained in s. 33 of that Act was intended by Parliament to be a provision limiting the Board's jurisdiction.

 

36               As support for this conclusion, Sopinka J. relied on the fact that the term "employees" was expressly defined in the statute, rather than left to the Board to resolve using general principles.  This clear definition was an indication by Parliament that this issue was not to be resolved by reliance on the specialized expertise of the Board.  Also, unlike in several provincial labour codes, there was no provision giving the Board exclusive jurisdiction over this issue.  Moreover, public servants were considered by Parliament to be a special class of employee; this distinction formed the very basis for the creation of a separate Act governing their labour relations.

 

37               Sopinka J. asked whether Parliament intended to confer jurisdiction on the Board with respect to the labour relations of employees who were not members of the Public Service.  If one frames the issue in the appeal in the manner suggested by the appellant, namely as purely political activities, it is clear that Parliament did not intend to confer jurisdiction over those activities because they do not form part of the administration of a trade union or the representation of employees by a trade union.

 

38               Taking a pragmatic and functional approach to the characterization of the issue facing the Board, I conclude that the first part of the s. 94(1)(a) test, which requires the Board to determine whether the actions of the CBC amounted to a prima facie interference with the administration of a trade union or the representation of employees by that union, is not jurisdictional in nature.  Therefore, it need not be independently reviewed on a correctness standard and this Court should only interfere if the decision of the Board is patently unreasonable.  I reach this conclusion for several reasons.

 

39               First, if the determination under s. 94(1)(a) as to whether the employer had prima facie interfered with the administration of a trade union is characterized as jurisdictional, virtually every unfair labour practice complaint under this section, and therefore virtually every unfair labour practice complaint not involving allegations of anti-union animus, would be subject to review by the courts on a standard of correctness.  The Board has relied on its expertise in the area of labour relations to develop a two-part test in the adjudication of claims under s. 94(1)(a).  The first part of the test involves a characterization of the activities of the union and a determination as to whether there has been employer interference with them.  If such interference is made out by the union, the Board goes on to consider the second part of the test:  whether there was justification for the interference.  In my view, the analysis of whether there has been interference with union activities as listed in the section goes to the heart of the Board's jurisdiction.  To use the analytical framework developed by the Board to segregate the first part of the test and label it jurisdictional ignores the fact that this issue is part of the substance of the s. 94(1)(a) determination and is therefore clearly within the jurisdiction of the Board.  It is also akin to an endorsement of the preliminary questions doctrine, which this Court has in recent decisions declined to adopt as a useful test for delineating jurisdiction:  see CUPE, supra, at pp. 233-34; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412, at pp. 421-22 ("SEPQA"); Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230, at p. 253.  The pivotal distinction between matters of law and matters of jurisdiction does not depend on which question a tribunal chooses to answer first. 

 

40               Support for the conclusion that this determination is not jurisdictional in nature is found in a functional analysis of the Canada Labour Code  as a whole.  The Code contains, in s. 22 , a broad privative clause, which limits judicial review only to those errors which amount to a loss or excess of jurisdiction.  It is worth reproducing this provision:

 

                   22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act  on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

 

                   (2) Except as permitted by subsection (1), no order, decision         or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall

 

(a) be questioned, reviewed, prohibited or restrained, or

 

(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

 

                   on any ground, including the ground that the order, decision or        proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason   exceeded or lost its jurisdiction.

 

41               This broad privative clause is combined with wide powers in the Board to deal with questions put before it.  The jurisdiction of the Board to hear and resolve all unfair labour practice complaints is founded in ss. 97(1) and 98(1).  Section 99 of the Code bestows on the Board wide remedial powers to address any violation of the Code which it finds.  The powers of the Board also include an internal appeal procedure pursuant to s. 18 of the Code.  In fact, the Board considered an application by the CBC under this section for review of its decision, but concluded that the matters which it raised were not such as to require a review by the full Board:  Canadian Broadcasting Corp. (1991), 86 di 92. 

 

42               Moreover, unlike in PSAC No. 1, supra, the terms at issue in this appeal are not specifically defined in the Code.  In fact, the Board has developed an extensive jurisprudence relating to the tests to be used in determining whether an allegation of a violation of s. 94(1)(a) has been sustained.  By virtue of its specialized expertise, the Board is uniquely suited to the determination of whether an employer has interfered with a protected interest.  After all, this determination requires an application of the objects and purposes of the Code in the larger context of labour relations.

 

43               The situation in this appeal is akin to that in SEPQA, supra, where Beetz J. found that the question of whether the activity of the union amounted to a strike was within the Board's jurisdiction.  It was an integral part of the question of whether there had been an unlawful strike, the principal problem for which the Board alone was responsible for settling.  I conclude that the issue of whether there was interference with the administration of a trade union and the representation of employees by that union, when the CBC asked Goldhawk to choose between his position as ACTRA president and his job as host of Cross Country Checkup, is a question of law that Parliament intended to be answered by the Board, and not by the courts:  see Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 772.  It is a central part of the issue of whether the appellant has committed an unfair labour practice, and as such forms part of the question which Parliament, through the Code, has given the Board the exclusive jurisdiction to resolve.  Therefore, this Court should defer to that expertise unless it can be said that the decision of the Board was patently unreasonable.

 

44               The appellant argues that the existence of the Broadcasting Act and the Journalistic Policy of the CBC indicate that the standard of review should be one of correctness.  The appellant relies on the principle that, in interpreting legislation outside its constituting statute, an administrative tribunal will be held to a standard of correctness, and cites in this regard the decision of the Ontario Court of Appeal in Haldimand-Norfolk Regional Board of Commissioners of Police v. Ontario Nurses' Association (1990), 41 O.A.C. 148.

 

45               The proposition that the standard of review of the interpretation by a tribunal of a statute other than its constituent legislation is one of correctness, appears to find its source in the concurring reasons of Laskin C.J. in McLeod v. Egan, [1975] 1 S.C.R. 517.  The issue in that case was whether the employer could require an employee to work hours in excess of 48 per week.  The arbitrator found that the collective agreement contained a provision which was sufficient to meet the consent requirement for employer-imposed overtime, as required by s. 11(2) of The Employment Standards Act.  Laskin C.J. (Spence and Beetz JJ. concurring) agreed with the majority that the collective agreement contained no such consent.  In arriving at this result, he remarked (at pp. 518-19):

 

Although the issue before the arbitrator arose by virtue of a grievance under a collective agreement, it became necessary for him to go outside the collective agreement and to construe and apply a statute which was not a projection of the collective bargaining relations of the parties but a general public enactment of the superior provincial Legislature.  On such a matter, there can be no policy of curial deference to the adjudication of an arbitrator. . . .

 

 

46               In the subsequent decision of the Saskatchewan Court of Appeal in Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260, Vancise J.A. concluded that this principle should apply equally to the interpretation of general statutes by independent tribunals, since they would be in no different position from the arbitrator.  In this regard see also United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 336, and Peter A. Gall, "Judicial Review of Labour Tribunals:  A Functional Approach", in the 1979 Proceedings of the Administrative Law Conference, 305, at pp. 333-36.

 

47               The statement of Laskin C.J. in McLeod, supra, was considered by the Ontario Court of Appeal in Haldimand-Norfolk, supra.  There the tribunal had to decide whether police officers were "employees" of the Region.  In the course of its decision, it considered sections of the Police Act and the Regional Municipality of Haldimand-Norfolk Act.  The Court of Appeal rejected the contention that the fact that these statutes had been scrutinized by the tribunal meant that the decision had necessarily to be set aside if the tribunal erred in so doing.  The Court of Appeal stated (at p. 149):

 

The majority of the Tribunal perforce had reference to those statutes in the course of the analysis of the problem set for the Tribunal to solve.  In our view, McLeod v. Egan means only that in interpreting an outside statute the Tribunal will receive no curial deference.  If the statute is controlling, it may resolve the essential question to be resolved.  But the issue always remains:  is the eventual conclusion, bearing in mind the interpretation of the statutes examined and applied, one that is patently unreasonable?  If it is, the decision will be set aside;  if it is not, the application for judicial review will be dismissed.

 

A similar approach was taken in Wentworth County Board of Education v. Wentworth Women Teachers' Assn. (1991), 80 D.L.R. (4th) 558 (Ont. Div. Ct.), and in Ontario Nurses' Assn. v. Etobicoke General Hospital (1993), 14 O.R. (3d) 40 (Div. Ct.).

 

48               As a general rule, I accept the proposition that curial deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation, although I would leave open the possibility that, in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it, a measure of deference may be appropriate.  However, this does not mean that every time an administrative tribunal encounters an external statute in the course of its determination, the decision as a whole becomes open to review on a standard of correctness.  If that were the case, it would substantially expand the scope of reviewability of administrative decisions, and unjustifiably so. Moreover, it should be noted that the privative clause did not incorporate the error of law grounds, s. 18.1(4) (c) of the Federal Court Act , R.S.C., 1985, c. F-7  (as amended by S.C. 1990, c. 8, s. 5).  This tends to indicate that some level of deference should be provided.

 

49               While the Board may have to be correct in an isolated interpretation of external legislation, the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness.  Of course, the correctness of the interpretation of the external statute may affect the overall reasonableness of the decision.  Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole. 

 

50               The Board in this case has the exclusive jurisdiction to determine if the appellant has committed an unfair labour practice, and specifically if it has interfered with the administration of a trade union or the representation of employees by that union.  That decision will only be interfered with by this Court if it is patently unreasonable.  The appellant argues, however, that the Broadcasting Act required the CBC to take the action that it did in order to fulfil its requirement of impartiality. 

 

51               I cannot find any provisions in the Broadcasting Act that expressly or impliedly impose an obligation on the CBC to restrict the ability of any of its employees to hold the position of union president so as to fulfil its statutory mandate.  The most relevant of the sections referred to by the appellant provides:

 

                   3.  It is hereby declared that

 

                                                                   . . .

 

(c) all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable statutes and regulations, is unquestioned;

 

(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern. . . .

 

                                                                   . . .

 

(f) there should be provided, through a corporation established by Parliament for the purpose, a national broadcasting service that is predominantly Canadian in content and character;

 

(g) the national broadcasting service should

 

(i) be a balanced service of information, enlightenment and entertainment for people of different ages, interests, and tastes covering the whole range of programming in fair proportion. . . .  

52               The proper interpretation of the statutory requirement to provide "a balanced service of information", as found in s. 3(g)(i) of the Broadcasting Act, is relevant to the final part of the analytical framework developed by the Board for use in a s. 94(1)(a) complaint.  This part of the test considers whether the CBC had a valid and compelling business justification for its actions.  The Board, apparently in response to the approach taken by the parties, focused on the Journalistic Policy as "the counterpart" of the provisions in the Act, and found that it did not provide such justification.

 

53               The Journalistic Policy is a comprehensive document which covers numerous diverse aspects of the CBC's operations in the area of information programming.  It sets out guidelines for dealing with, for example, matters of program content and censorship; production of programs; rights of program participants and the legal aspects of broadcasting.  The portions of the Policy most relevant to this appeal are found in "Section I:  Principles and Standards", which provides at pp. 7 and 15:

 

BALANCE

 

                                                                   . . .

 

Journalists will have opinions and attitudes of their own.  But the proper application of professional standards will prevent these opinions and attitudes from leading them into bias or prejudice.  It is essential that their reporting is done in a judicious and fair manner.

 

                                                                   . . .

 

PERSONNEL

 

On-air personnel, as well as those who edit, produce or manage CBC programs, have privileged access to an influential medium and therefore their performance is of critical importance for the maintenance of journalistic principles and the CBC's policies in relation to these principles.  In order to maintain their credibility, they must avoid publicly identifying themselves in any way with partisan statements or actions on controversial matters.

 

54               The following statement of the Board applies equally to the dictates of the Act as it does to their attempted application in the Journalistic Policy (at p. 147):

 

                   Assuming, for the purpose of this discussion, that CBC could, albeit indirectly, regulate the content of a union newsletter, according to the Board's jurisprudence, CBC would still need to show compelling business reasons warranting such actions in order to escape section 94(1)(a).  Further, the Board would need to be convinced that in the circumstances of this case, for Mr. Goldhawk to have remained in office in ACTRA after November 22nd while remaining an on-air journalist with CBC, would have had such a detrimental effect on CBC's image as the public broadcasting agency and on its obligation to provide balanced information, that it warranted his removal from ACTRA.  Finally, CBC would need to show that the facts surrounding CBC's decision to ask Mr. Goldhawk to step down as president of ACTRA genuinely warranted the effects of such a decision.

 

55               This delineation of the relevance of external statutory imperatives to the Board's s. 94(1)(a) analysis is within the Board's jurisdiction.  The Board's findings of fact which led them to the conclusion that compelling business reasons were absent in this case are similarly not unreasonable.  Moreover, the decision of the Board does not, in my view, err in its treatment of the relationship between the Broadcasting Act (or the related Journalistic Policy) and the obligations imposed on the appellant CBC by the Canada Labour Code .

 

56               The general requirement in ss. 3(d) and 3(g)(i) of the Broadcasting Act to provide a balanced information service must be interpreted in a way that is consistent with the specific obligations contained in the Code.  The Board's own analytical framework for s. 94(1)(a) contemplates such an accommodation, providing a balancing test in which legitimate management interests, such as compliance with other statutory requirements, permit conduct that would otherwise amount to interference with a union within the terms of s. 94(1)(a).  As stated above, I am of the view that neither the test applied nor the result reached is patently unreasonable.

 

57               As for the Journalistic Policy of the CBC itself, this document does not enjoy the status of legislation.  It is an internal management directive promulgated by the CBC based on its own interpretation of its obligations under the Broadcasting Act.  This Policy cannot oust the legal obligations of the CBC as found in the Canada Labour Code .  The fact that the Policy has been upheld by arbitrators who have attested to the good faith of the CBC is irrelevant.  Even the most admirable policy cannot permit an employer to amend unilaterally the scope of union rights provided for by statute.  Therefore, any conflict between the dictates of the policy and the directives of the Code, as interpreted by the Board as discussed above, must be resolved in favour of the Code.  In the words of the majority of the Board (at p. 147):

 

                   CBC certainly has a legitimate interest and right to protect its own integrity and impartiality through the implementation of a journalistic policy.  However, CBC must show more than a broad legitimate concern for a strong journalistic policy. . . . [I]ts particular application must be compatible with CBC's statutory obligations found in the Code.

 

58               To summarize my conclusions to this point, the proper standard to be applied to judicial review of the Board's decision that the appellant had committed an unfair labour practice is one of patent unreasonableness.  The Board has the exclusive jurisdiction to determine whether there has been an unfair labour practice by the interference with the administration of a trade union or the representation of employees by that union, in contravention of s. 94(1)(a).  This jurisdiction encompasses the authority to develop a test for when such interference is established, and to define the scope of the concepts of "administration" of a union and "representation" of employees.  The fact that the employer in this case is a creation of, and is governed by, an external statute, does not raise the overall standard of review to one of correctness, even though no deference will be shown to the Board in its interpretation of the provisions of that statute.  In this case the Board did not err in concluding that the existence of statutory obligations on the appellant was relevant to the issue of whether a compelling business justification existed for the appellant's actions.  For the appellant to succeed, then, requires a finding that the ultimate decision that no such justification had been made out was an unreasonable one on the evidence before the Board.  I now turn to that issue.

 

B.  Reasonableness of the Decision

 

59               The question which this Court must address is whether the decision of the Board that the appellant had interfered with the administration of a trade union or the representation of employees by that union was patently unreasonable.  The concept of patent unreasonableness was adopted by Dickson J. in CUPE, supra, as the proper standard of review of the decision of an administrative tribunal protected by a privative clause and made within the limits of its jurisdiction.  Dickson J. stated that the reviewing court was to ask itself (at p. 237):

 

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

 

60               This formulation has been reaffirmed numerous times in subsequent cases.  Its rationale was identified by L'Heureux-Dubé J. in the recent case of Domtar Inc., supra, in which she stated (at pp. 774-75):

 

                   The patently unreasonable error test is the pivot on which judicial deference rests.  As it relates to matters within the specialized jurisdiction of an administrative body protected by a privative clause, this standard of review has a specific purpose:  ensuring that review of the correctness of an administrative interpretation does not serve, as it has in the past, as a screen for intervention based on the merits of a given decision.  The process by which this standard of review has progressively been accepted by courts of law cannot be separated from the contemporary principle of curial deference, which is, in turn, closely linked with the development of extensive administrative justice. . . .

 

61               The reasons of Cory J. in PSAC No. 2, supra, contain a comprehensive summary of the jurisprudence of the Court on this topic.  In considering what is meant by the term "patently unreasonable", Cory J. stated (at pp. 963-64):

 

                   It is said that it is difficult to know what "patently unreasonable"  means.  What is patently unreasonable to one judge may be eminently reasonable to another.  Yet any test can only be defined by words, the building blocks of all reasons.  Obviously, the patently unreasonable test sets a high standard of review.  In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly."  "Unreasonable" is defined as "(n)ot having the faculty of reason; irrational. . . .  Not acting in accordance with reason or good sense".  Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction.  This is clearly a very strict test.

 

62               When deciding whether the decision of a tribunal is patently unreasonable, the interpretation by the tribunal of its constating legislation will not be disturbed if the approach taken by the tribunal is a reasonable one and the meaning given is one which the words of the statute can reasonably bear.  Statutory language is often ambiguous and open to differing interpretations.  It is therefore for good reason that the courts will defer to the definition favoured by the tribunal, which can bring to bear on the determination its specialized expertise and knowledge of the overall statutory framework within which the provision operates.

 

63               To determine whether the decision of the Board in this case was patently unreasonable, it is first necessary to identify with some precision what the Board actually decided.  As noted above, the contested issue in this appeal is whether the activities of the respondent ACTRA which were affected by the ultimatum given by the appellant CBC to Goldhawk, were within the scope of s. 94(1)(a).  The appellant argues that the Board, in extending protection to purely political activities, committed a patently unreasonable error.

 

64               In general, the issue as defined by the Board was whether s. 94(1)(a) was violated when Goldhawk was asked to choose between his position as a radio host and his position as president of the union.  This ultimatum affected two identifiable and discrete activities of the union.  First, the CBC's action was specifically a response to the publication by Goldhawk of the article in ACTRASCOPE.  In this sense the ultimatum, if left unchallenged, precluded future articles by the union president in the union news magazine on issues such as free trade, if that president belonged to the subset of ACTRA members who were CBC journalists.  Second, the ultimatum affected the ability of the union members to choose an on-air journalist as their president at all.  It must be remembered that the Board found that Goldhawk had offered the appellant a compromise in which he would step down as spokesperson, but would remain union president.  This compromise was rejected by the appellant. 

 

65               In short, both the ability of the union to choose an on-air journalist as president, and the ability of the union to have the person whom it chose as president also act as its spokesperson, were circumscribed by the actions of the appellant.  The task of the Board was to determine if these two activities were part of the administration of a trade union or the representation of employees by a trade union.  The task of this Court is to determine whether the conclusions of the Board in this regard were "so patently unreasonable that [they] cannot be rationally supported by the relevant legislation".

 

66               The Board considered whether the signing of the article in ACTRASCOPE by Goldhawk as a union spokesperson was a lawful union activity contemplated by the Code.  In a more general sense, the question was whether s. 94(1)(a) protected the publication by a union and its officer of an article in a union newsletter expressing an opinion that a government economic policy constituted a threat or a benefit to its members.  The Board answered this question in the affirmative.

 

67               The appellant argues that in making this decision the Board held that the purely political activities of unions were entitled to the protection of s. 94(1)(a).  However, this describes the Board's finding too narrowly.  The Board considered the specific act of this union in context.  It recognized that s. 94(1)(a) has its limits.  The existing jurisprudence of the Board had already made it clear that in order for s. 94(1)(a) to apply prima facie, public statements by union officials had to relate to the interests of the union as a collectivity, and not to the personal concerns of the union official.  Nor could such statements be reckless or maliciously untrue.

 

68               The Board recognized that its previous jurisprudence was in a sense distinguishable, as these cases dealt with public statements aimed directly at the employer.  This case concerned an article published in a union newsletter and directed at union members.  This is not the same sort of public statement that was at issue in the previous cases.  Moreover, the substance of the article was not aimed at the employer, but rather at gathering support from members for the union's official position.  The Board held that, in this situation, the Code should also apply.  In my view, given this context, the extension of the content protection was not wholly unwarranted.  The distinguishing features of this fact situation must be recognized in any consideration of whether the decision was unreasonable.

 

69               The decision of the majority was arrived at in a principled manner and was not irrational.  The Board set out the established analytical framework for a s. 94(1)(a) determination, considered its existing jurisprudence, recognized the differences between this case and those it had discussed, and gave rational reasons why those principles could be by analogy applied to this case.  The Board was entitled to apply the law as found in existing decisions to new and analogous facts.  As Professor Philip L. Bryden points out in his case comment at (1992), 71 Can. Bar Rev. 580, at p. 585, on W.W. Lester (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644:

 

Doubtless the Board majority was seeking to extend the reasoning employed in previous decisions, and the appropriateness of this extension was a matter of controversy even within the Board itself.  Were this enough to render a decision "patently unreasonable", however, the capacity of administrative tribunals to develop the law in the areas for which they are responsible would be drastically curtailed, something that would seem to be inconsistent with the Supreme Court's own recent pronouncements on the desirability of deference to expert administrative tribunals.

 

70               The comments of Wilson J. in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, relating to the characterization of union participation in activities beyond the workplace are, although obiter, further indication that the Board's conclusion on this point is a rational one.  In Lavigne the issue was whether the s. 2(b) and (d) Charter rights of a union member were violated when his compulsory union dues were directed to causes which were not directly related to his employment context, such as the campaign opposing construction of the Skydome.  Wilson J. (L'Heureux-Dubé and Cory JJ. concurring), while finding that neither section had been infringed, nonetheless went on to consider, in obiter, whether any such violations could be justified under s. 1 of the Charter.  In dealing with whether there was a rational connection between the Rand formula mandating compulsory payment of union dues which could then be used to advance "political" matters unrelated to contract negotiation, and the government objective of the promotion of industrial peace through the encouragement of free collective bargaining, Wilson J. stated at p. 291:

 

Whether collective bargaining is understood as primarily an economic endeavour or as some more expansive enterprise, it is my opinion that union participation in activities and causes beyond the particular workplace does foster collective bargaining.  Through such participation unions are able to demonstrate to their constituencies that their mandate is to earnestly and sincerely advance the interests of working people, to thereby gain worker support, and to thus enable themselves to bargain on a more equal footing with employers.  To my mind, the decision to allow unions to build and develop support is absolutely vital to a successful collective bargaining system.

 

71               La Forest J. (Sopinka and Gonthier JJ. concurring), while finding that a s. 2(d) infringement was made out, held that the breach was justified under s. 1.  In discussing the objective of giving the union complete discretion as to how its dues are spent, La Forest J. noted (at p. 334):

 

                          The first [objective] is to ensure that unions have both the resources and the mandate necessary to enable them to play a role in shaping the political, economic and social context within which particular collective agreements and labour relations disputes will be negotiated or resolved.  The balance of power between management and labour at any given time or in any particular industry or workplace is a product of many factors.

 

These comments indicate that it is not unreasonable to find a connection between the collective bargaining relationship and the activities of unions as they relate to external social issues affecting their members.

 

72               Additionally, even if it can be said that the decision of the Board relating to the signing of the article in the newsletter is either patently unreasonable, or a decision going to jurisdiction that is incorrect, this does not affect the result.  It must be remembered that the Board identified two union activities that were affected by the actions of the appellant.  In addition to the signing of the article, the Board also found that the actions of the CBC had the effect of preventing any broadcast journalist from being the president of ACTRA.  This was so because the appellant refused to accept the compromise suggested by Goldhawk that he retain his position as ACTRA president while no longer serving as its spokesperson. 

 

73               The Board found, and was rationally justified in finding, that this act alone amounted to a violation of the Code.  On any standard of review, it is clear that the Board was entitled to find that the election of whichever person the other union members wish to have as their president is an activity that falls within the concept of "administration" of a trade union or "representation" of employees by that union.  This conclusion is not in error.

 

74               Finally, the two authorities most heavily relied on by the appellant before this Court are, in my view, simply not on point.  The employees in Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266 (C.A.), were suspended for wearing on their uniforms buttons issued by the union that sported messages opposing a reduction in staffing levels and supporting the passage of certain proposed legislation.  The workers sought judicial review of the dismissal by the adjudicator of their grievances of the suspensions.  The section of the Public Service Staff Relations Act  relied upon by the grievors protected the participation of employees in the lawful activities of the union. 

 

75               Heald J.A. held that the adjudicator did not commit a reviewable error in dismissing the grievances.  MacGuigan J.A., dissenting, held that the message on the button clearly related to union business.  Relying on Quan v. Canada (Treasury Board), [1990] 2 F.C. 191 (C.A.), he held that the employer had failed to show a serious possibility of a detrimental effect on its business or reputation.  Pratte J.A., who concurred with Heald J.A., was the only judge to draw a distinction between the types of messages that might be worn by employees on a button.  He stated (at p. 270):

 

. . . an employer would have the right to object, without having to prove any detrimental effect, to the wearing by his employees during working hours of union buttons manifesting their opposition to some proposed piece of legislation that the employer may happen to support.  Otherwise, the employer would, in a sense, be forced to collaborate to the dissemination of ideas of which he disapproves.

 

76               Leaving aside the correctness of the majority decision, the result in Almeida can be explained in part by the fact that the statements were made to the general public during working hours on the employer's property.  Such a situation would be akin to one in which Goldhawk, while on the air, exhorted his listeners on Cross-Country Checkup to join with ACTRA in opposing free trade.  Clearly, different considerations would apply in such a case. 

                  

77               Moreover, the decision of the majority in Almeida focuses on damage to the employer, and the justification of the employer for its actions, on the particular facts of the case.  Heald J.A. held that the adjudicator was justified in concluding that the message on the buttons could well have drawn the grievors into a heated public debate with persons passing through customs.  These considerations are akin to those which occur at the second stage of the test used by the federal Board in its s. 94(1)(a) analysis, which deliberates the existence of a valid employer justification.  They are not relevant to the question of whether the activities of the union that were curtailed by the appellant attract the protection of s. 94(1)(a).

 

78               The second case relied upon by the appellant is Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384 (Ont.).  There the union, which was affiliated with the federal New Democratic Party ("NDP"), posted notices on union bulletin boards on company premises identifying the workers who were canvassers on behalf of the NDP in an upcoming by-election.  The canvassers distributed literature to the employees on company premises during non-working hours.  The employer told the union that there was to be no political campaigning on company property at any time.

 

79               The union filed an unfair labour practice complaint.  The employer argued that the Labour Relations Act did not apply, such that the Ontario Labour Relations Board was without jurisdiction to hear the complaint, because the political canvassing put forward the interests of the NDP and not the collective bargaining interests of the union.  Therefore s. 3 of the Act, which stated that every person was free to participate in the lawful activities of a trade union, had no application.

 

80               George W. Adams, Q.C. (as he then was), Chairman, for the majority, dismissed the union's complaint.  While recognizing that the jurisprudence of labour boards in the rest of Canada and in the United States was not universally supportive of such a distinction, Chairman Adams nonetheless concluded (at pp. 400-401):

 

In a mixed economy any attempted demarcation between collective bargaining and politics may lack economic reality and not sufficiently acknowledge the impact of governments on the workplace. . . .  On the other hand, there are clear institutional differences between collective bargaining activity and political action.  Whatever the general economic relationship of these two processes, the principal institutions operate at different levels and are distinct.

 

81               On the facts before him, Chairman Adams noted that it was important that the canvass was conducted in conjunction with the NDP in the context of a federal election campaign, and concluded (at p. 406):

 

On considering the material as a whole, we have come to the conclusion that in the circumstances of this case the activity is too remotely connected to the dominant purpose of the Labour Relations Act to attract the right asserted by the applicant.  In our view, the communications in issue before us are not as connected to concerns of the bargaining unit employees as employees as they are to their concerns as voters.  The complainant is therefore not communicating to bargaining unit employees primarily because of its status as their exclusive bargaining representative but rather as an affiliate or supporter of a political party seeking the electoral support of certain employees.  In this context, the trade union canvasser is no different than any other political canvasser.  A trade union should not be able to use its certified bargaining agent status to capture an audience for its political canvassing activities.

 

82               Member H. Kobryn dissented, and stated that the provisions of the Act, taken together with a common sense understanding of labour relations, demonstrated that the activities of the union in this case were protected.  The real issue was whether the complainant was entitled to distribute the materials on the employer's premises during non-working hours.

 

83               This decision can be distinguished on that ground alone, in that the location of the expression was the workplace itself.  I note that Wilson J. distinguished the case on this ground in her reasons in Lavigne, supra, at p. 288, and was of the view that the decision was best understood as one dealing specifically with the issue of union canvassing or solicitation.  Moreover, the activity in issue in Adams Mine was more clearly "political"; it was a joint effort with the NDP to campaign for a particular party in an election.  Finally, it must not be forgotten that on the facts of the appeal now before this Court the Board was provided with an independent legitimate union activity; the right to choose a president.  That this is union interference has also been accepted by the Ontario Labour Relations Board:  see McDonnell Douglas Canada Ltd., [1988] O.L.R.B. Rep. May 498.

 

84               In general, the majority in Adams Mine contemplates a broad scope for the application of labour relations legislation.  While Chairman Adams describes the Act as dealing with "a restricted but vital area of trade union interests -- the collective bargaining process", he goes on to state (at p. 399):

 

 

It is this dominant purpose of the statute and all related activity necessarily incidental to this purpose which demarcate the Board's jurisdiction. 

 

                   This observation with respect to the fundamental purpose and scope of the Act does not minimize the Board's role in the labour relations community nor does the observation decide this case.  There is much related activity that is necessary incidental to the Act's dominant purpose.

 

It was not unreasonable for the Board in this case to conclude that included in the dominant purpose of the Canada Labour Code , or necessarily incidental to that purpose, was the right of the union president to communicate to union members in a union publication on issues of importance to the members in their capacity as journalists, writers and performers.  The same can be said for the right of the union to choose its president from among its entire membership and not from a subset circumscribed by the employer.

 

85               The appellant also argues that it was patently unreasonable for the Board to find that, if the appellant did interfere with the administration of a trade union, it did not have a valid justification for so doing.  In this regard the appellant once again points to the provisions of the Broadcasting Act and their interpretation in the Journalistic Policy of the CBC.  As noted above in my discussion on jurisdiction, I am of the view that there are no grounds for interfering with the Board's decision in this regard.

 

86               The Board considered the portions of the Journalistic Policy that the appellant argued were mandated by the Broadcasting Act, but did not find that they compelled the appellant to take the position that it did.  The Board pointed out that in the past the CBC had used other methods, such as on-air disclosure, to respond to the perceived appearance of bias.  The Board was also of the opinion that requiring Goldhawk to resign may well have served only to identify him more closely with the issue.  Therefore, even if there were obligations relating to impartiality imposed by the Act on the CBC, they were not determinative, given the Board's finding that there was no causal connection between this requirement and the continued presidency of Goldhawk.  The Board found that the CBC failed to try and reconcile its own interests with those of Goldhawk as a union member.  To paraphrase the Board (at p. 151), the appellant failed to show any convincing causal relationship between its image of impartiality and Goldhawk's continuing to hold office as ACTRA president.  The conclusion of the Board that the appellant had failed to show a valid and compelling business justification for its interference is not unreasonable.

 

VI.  Conclusion and Disposition

 

87               For the foregoing reasons, I would dismiss the appeal with costs to the respondent union.

 

                   The following are the reasons delivered by

 

88               La Forest J. -- As I see it, this case raises a very narrow point and I prefer to confine myself to that point.  It is enough, therefore, to say that I agree with the last paragraph of Justice Sopinka's reasons and accordingly I would dispose of the case in the manner proposed by Justice Iacobucci.

 

                   The following are the reasons delivered by

 

89               L'Heureux-Dubé J. -- I agree with my colleague Iacobucci J. that this appeal should be dismissed with costs to the respondent union.  I also agree in substance with my colleague's reasons to this effect.  However, I do not fully agree with his discussion of the standard of review where an administrative tribunal interprets an external statute. 

 

90               Iacobucci J. concludes that "curial deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation" (although he leaves open the possibility that some measure of deference may be appropriate "in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it") (p. 000).  He notes that this proposition finds its source in the concurring reasons of Laskin C.J. in McLeod v. Egan, [1975] 1 S.C.R. 517.  In McLeod, Laskin C.J. stated (at pp. 518-19):

Although the issue before the arbitrator arose by virtue of a grievance under a collective agreement, it became necessary for him to go outside the collective agreement and to construe and apply a statute which was not a projection of the collective bargaining relations of the parties but a general public enactment of the superior provincial Legislature.  On such a matter, there can be no policy of curial deference to the adjudication of an arbitrator. . . .

 

91               However, McLeod related to the decision of an arbitrator appointed pursuant to a collective agreement.  Such an arbitrator was not protected by a broad privative clause as is the Canada Labour Relations Board under the Canada Labour Code , R.S.C., 1985, c. L-2  (see Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230).  No decision of this Court since McLeod appears to have applied Laskin C.J.'s statement to a tribunal protected by a full privative clause.  Furthermore, the interpretation of an external statute cannot, in my view, be characterized as such as a jurisdictional question.  Consequently, denying a tribunal protected by a full privative clause curial deference with respect to the interpretation of an external statute seems inconsistent with the jurisprudence of this Court concerning the standard of review of decisions of such tribunals (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, and U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048).

 

92               Accordingly, I conclude that the fact that the Board interpreted an external statute has absolutely no effect on the appropriate standard of judicial review, which, in this case, is one of patent unreasonableness since the decision reached by the tribunal is entirely within its jurisdiction.

 

93               With the exception of the above comment, I agree substantially with the reasons of my colleague Iacobucci J. and like him would dismiss this appeal with costs to the respondent union.

 

                   The following are the reasons delivered by

 

94               Sopinka J. -- I have read the reasons of my colleagues McLachlin and Iacobucci JJ.  While I agree with the result reached by Iacobucci J., I cannot agree that the scope of s. 94(1) (a) of the Canada Labour Code , R.S.C., 1985, c. L-2 , with respect to the range of union activity which is protected is a matter committed by Parliament to the jurisdiction of the Board.  In my opinion this would mean that the Board could expand the nature of the activity which is intended to be covered by the subsection to include matters not related to labour relations.  Accordingly, the provision is one intended to limit jurisdiction and therefore the decision is reviewable to a standard of correctness.

 

95               The question which must be answered is whether Parliament intended that the determination of the matters included within the provision be left to the Board or whether it was a provision intended to limit the jurisdiction of the Board in respect of which the Board had to be right.  The  pragmatic and functional approach referred to in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, is to be used in seeking to ascertain the intention of the legislature but it is the intention of the legislature, once ascertained, that prevails.  This is fundamental to a system which adheres to the rule of law. 

 

96               In making this determination the focus is on the scope of the provision under which the specific question before the tribunal arises and not on that very question.  Relating this to this case we should not focus on whether Parliament intended that ACTRA's activity in opposing free trade was intended by Parliament to be included in the words of s. 94(1)(a) but rather on what activity in general did Parliament intend to include in the subsection and what is the possible reach of that provision if not interpreted correctly in accordance with the legislative intention.  To state the specific question narrowly and then to ask whether Parliament intended this question to be committed to the Board would mean that the issue of the Board's jurisdiction would have to be determined anew with respect to each new fact situation.  Surely the jurisdiction of the Board under s. 94(1)(a) must be determined once and for all.  Either it has jurisdiction to determine what activity is included in s. 94(1)(a) or it does not.  As stated in Bibeault, supra, at p. 1086:

 

                   It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

 

                          1.  . . .

 

                   2.if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.  [Emphasis added.]

 

97               Given the range of union activity which could be the subject of a complaint under the subsection, much of which has little or nothing to do with the purposes of the Code, I cannot accept that Parliament intended to leave it to the Board to determine which of this activity can be swept into its jurisdiction so as to enable it to subject an employer to sanctions for engaging in "unfair labour practices".  My colleague Iacobucci J. appears to accept that purely political activity was not intended to be covered by the subsection, and yet, if the interpretation of the key words of the subsection is committed to the Board, then the Board can decide that it is.  This would contradict the intention of Parliament.

 

98               I do, however, agree with the alternative ground upon which Iacobucci J. supports the decision of the Board.  This is based on the actions of the Canadian Broadcasting Corporation in refusing to accept the compromise suggested by Goldhawk that he retain his position as ACTRA president while no longer serving as its spokesperson.  With respect to this ground, Iacobucci J. states (at pp. 198-99):

 

                   The Board found, and was rationally justified in finding, that this act alone amounted to a violation of the Code.  On any standard of review, it is clear that the Board was entitled to find that the election of whichever person the other union members wish to have as their president is an activity that falls within the concept of "administration" of a trade union or "representation" of employees by that union.  This conclusion is not in error.

 

I agree with this statement and with his conclusion that there is no reason to interfere with the Board's finding with respect to the absence of justification.  This is sufficient to dispose of the appeal and I would do so in the manner proposed by Iacobucci J.

 

                   The following are the reasons delivered by

 

99               Gonthier J. -- I agree with Justice Iacobucci, subject to the comment of Justice L'Heureux-Dubé.

 

                   The following are the reasons delivered by

 

100             McLachlin J. (dissenting) -- In 1989 a federal election was held in Canada.  The main issue was free trade with the United States.  The Alliance of Canadian Cinema, Television and Radio Artists, ACTRA, was opposed to free trade.  Its president, Dale Goldhawk, wrote an article against free trade which was published in the union newsletter, urging members to vote against the party that espoused it.  Mr. Goldhawk was the host of a public affairs radio program produced by the Canadian Broadcasting Corporation ("CBC") called Cross Country Checkup.  CBC policy dictated that the hosts of its public affairs programs must appear to be neutral and impartial.  Mr. Goldhawk's statements on election issues on behalf of ACTRA violated this policy.  So the CBC  gave him a choice.  He could give up his presidency of the union, and remain as host of Cross Country Checkup, or he could continue as president of the union and do other work for the CBC. ACTRA alleged that this constituted unfair interference with union activities contrary to the Canada Labour Code,  R.S.C., 1985, c. L-2 , and a majority of the Canada Labour Relations Board agreed:  (1990), 83 di 102.

 

101             The question before us is whether the decision of the Board should be maintained.  This requires us to determine the appropriate standard of review and to apply it to the decision  of the Board on the issues before it: (1) whether the activity in question fell under the Canada Labour Code , s. 94(1) (a); (2) if so, whether the choice the CBC put to Mr. Goldhawk amounted to interference with union activities; and (3) if interference with a union activity was made out, whether it was justified.  Iacobucci J., applying the standard of patent unreasonability    to all three questions, concludes that the Board's conclusion was not patently unreasonable and hence should not be overturned.  I respectfully differ.  I agree that the standard of review on questions (1) and (2) is patent unreasonability; however, I view the Board's conclusion that the union's activities fell within the ambit of the Canada Labour Code  as patently unreasonable. On question (3) I take the view that the Board was required not only to be reasonable but correct, and that it erred. In the result, I would allow the appeal.

 

Analysis:  The Standard of Review

 

102             At the heart of this appeal lies the degree of deference to be accorded to the decision of the Canada Labour Relations Board. Must the reviewing court defer to the opinions of the Board, interfering only if it is patently unreasonable?  Or can the court revise the Board's conclusions if it considers them incorrect? I agree with my colleague Iacobucci J. that in determining this the Court should apply the functional test set out in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, which directs the court to ask the question, what did the legislator intend?

 

103             I cannot agree, however, with the manner in which my colleague applies this test.  He finds that the same standard of review -- patent unreasonability -- must apply globally to all issues, save for those which are clearly jurisdictional.  While conceding that issues which are clearly jurisdictional or involve statutory interpretation must be judged by the more stringent standard of correctness, he nevertheless goes on to suggest that the standard for "the decision as a whole" must be patent unreasonability.  I, on the contrary, see the functional test as question-specific.  A single case may present several issues.  On some, the legislator may have intended courts to defer to the Board; on others not.  In my view, the functional test must be applied to each question which the Board considers, and the appropriate standard of review must be applied to its answers.

 

104             The question-specific nature of the functional test for the standard of judicial review follows from the test itself.  That test requires the reviewing court to consider:  (1) the statute which empowers the board, including the purpose of the board, the scope of its powers, the breadth of language used and the presence or absence of a privative clause; (2) the board whose decision is impugned, including whether it possesses a developed jurisprudence, how its members are selected, how they participate in decision-making, and experience or context which gives them special advantages or insights; and (3) the nature of the problem under consideration, including whether it falls squarely or by implication within the powers of the board, whether its answer requires specialized knowledge, and whether it is a question of general application which a court is equally or better suited to answer:  Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 605-6, per L'Heureux-Dubé J. (dissenting, but not on this point); see also Bibeault, supra.

 

(a)Whether the Activity in Question Falls under the Canada Labour Code, Section 94(1) (a)

 

105             The first question which the Board was required to consider was whether the conduct at issue fell within s. 94(1) (a) of the Canada Labour Code , which provides:

 

                   94. (1)  No employer or person acting on behalf of an employer shall

 

(a)  participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union;

 

106             Unions undertake many activities. Not all are protected by the Code.  This raises the question of whether the activities of the union at issue in this case were protected by the Code. The majority of the Board answered this question in the affirmative.

 

107             Iacobucci J. does not address this as a separate issue. He sees this question as an inseparable part of the larger issue of whether interference under s. 94(1)(a) is made out.   Reasoning that the question of interference lies at the heart of the Board's jurisdiction, he concludes that the standard of review is patent unreasonability and that the conclusion of the majority of the Board that the CBC interfered with the union's activity should be sustained.  He argues that to treat the question of whether the union conduct is protected by s. 94(1) (a) of the Canada Labour Code  as a distinct issue is wrong because this "ignores the fact that this issue is part of the substance of the s. 94(1) (a) determination" and smacks of the "preliminary questions" approach to judicial review (p. 187).

 

108             I cannot agree with this analysis.  The Bibeault test requires the court to consider each question under review in determining the standard of review.  If the question of whether the activity in question is covered by the Canada Labour Code  arises on the facts, then the court must address the degree of deference the legislator intended the court to accord to the Board's decision on that question.  This requirement is not obviated by the fact that an issue is part of the substance of the dispute, nor by the fact that it may be "preliminary" or jurisdictional: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("CUPE"), per Dickson J., at p. 236; and Bibeault, supra, per Beetz J., at pp. 1086-89.

 

109             In this case, the first question the Board was required to consider was whether the union conduct which gave rise to the grievance was protected by the Canada Labour Code , s. 94(1) (a).  The majority said it was.  In reviewing that decision, the court must treat it as a distinct question.

 

110             What standard of review is applicable to this question?  The statute, the nature of the Board, and the problem under scrutiny suggest that Parliament intended this question to be decided by the Board: Bibeault, supra, and Mossop, supra.  The problem  -- whether union statements on political matters outside the collective bargaining context are protected by the Code -- arguably lies within the expertise of the Board. The governing statute, the Canada Labour Code , confers broad decision-making powers on the Board and insulates it with a strong privative clause.  Finally, the tribunal, the Canada Labour Relations Board, has long functioned in a policy-making capacity and has developed an important body of jurisprudence.  Viewing these matters together, I am persuaded that the interpretation of the ambit of s. 94(1)(a) lies at the core of the Board's mandate and was intended by Parliament to be left to the Board, notwithstanding that the question goes to the power or "jurisdiction" of the Board.  I therefore conclude that this Court can interfere with the Board's conclusion that the statements here in issue were protected by the Canada Labour Code  only if the Board's conclusion is patently unreasonable.

 

111             This brings us to the critical issue -- whether the Board's conclusion that the grievance concerned a protected union activity within the jurisdiction of the Board was patently unreasonable.  The majority of the Board took the view that only statements which can be described as abusive -- "extreme", "false and very unfair", "blatantly false", "made maliciously" or "in reckless disregard of the truth" -- fall outside the Code's protection and hence outside the ambit of the Board's consideration.  Since the statements here at issue were not abusive, the majority concluded that they were protected.  The dissenting member disagreed; in her opinion, the protection offered by the Code and Board's mandate "is restricted to matters involving the Code's collective bargaining regime and the general relationship between a union, as exclusive bargaining agent for employees, and an employer" (p. 153).

 

112             The conclusion of the majority that all statements of union officials are protected by the Code except those which are abusive, is, in my respectful view, patently unreasonable, from the perspective of both the purpose of the Canada Labour Code  and the authorities.

 

113             I turn first to the purpose of the Code.  A decision which extends protection to areas where it serves no purpose may be unreasonable; hence the need to consider the purpose of the Code.  The purpose of s. 94(1)(a) may be inferred from the preamble to Part I of the Code, in which it is found, entitled "Industrial Relations".  It is to encourage "free collective bargaining and the constructive settlement of disputes"; to support "freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations"; to aid in the development of "good relations and constructive collective bargaining practices".  (Emphasis added.)

 

114             If the purpose of Part I of the Code is to promote and preserve the collective bargaining system, the purpose of the s. 94(1) protection in particular is to preserve the integrity of the collective bargaining system by avoiding situations in which employees might be deterred from speaking frankly on collective bargaining matters for fear of discipline or changes to their jobs.  Section 94(1) confers an extraordinary protection, in the sense that it may override the usual rights and policies of the employer. This is justified by the need to preserve the integrity of the collective bargaining process.  If employers could discipline or remove employees because of statements made in the collective bargaining process, the process itself would be threatened.  Union members and spokespersons might be silenced.  This would be contrary to the purposes of the Code.

 

115             Political statements by union representatives unrelated to the collective bargaining process do not raise the same considerations.  Such statements do not touch the purpose of the Code, that is, the promotion of effective collective bargaining. The union representative making a political statement unrelated to collective bargaining is for practical purposes in the same position as a non-union person making a similar statement.  Since the matter does not touch collective bargaining issues, there is no justification for treating the union person differently.  If the statement puts the employee in a situation where the employer's policy necessitates taking some action, then there is no reason why the employer should not do so since the employee's activity does not come within the ambit of s. 94(1)(a) protection.

 

116                    A rational system of labour law must recognize that the protection of labour statutes and codes for employees speaking out on behalf of unions is confined to the purposes for which those statutes are enacted -- the protection of the integrity of the collective bargaining process.  Unions are legally entitled to take any number of actions and stances which can put the employees who take them in conflict with legitimate job requirements.  If the opinion of the majority of the Board is affirmed, protection will be extended to all union and employee statements which are not abusive.  Wearing buttons printed with anti-employer statements in offices; carrying political signs while on the job; proselytizing in hospitals for or against euthanasia or abortion; slogans on uniforms for or against the current political regime or its policies -- these are but a few examples of statements which would be deemed protected when made under the union aegis.  The employer who attempts to limit such statements would be found to have interfered with union activities. The employer could thus be forced to participate in the dissemination of ideas of which it disapproved, a result which was rejected by the Federal Court of Appeal in Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266, per Pratte J.A., at p. 270.  The onus would shift to the employer to justify its attempt to curtail such statements.  As the Board's decision in the present case illustrates, this may be difficult to do, even in cases where there is an apparent link between the employer's business and the need to limit a particular kind of union speech.

 

117             Paul Weiler, the former Chairman of the British Columbia Labour Relations Board and a noted labour relations specialist, discusses the distinction between protected activities related to collective bargaining and non-protected activities falling outside this sphere, in his book Reconcilable Differences (1980). While acknowledging the right of unions to take political action, including a political "day of protest", he concludes (at p. 59) that "this exotic form of political job action was simply never intended to be controlled by a labour statute and a labour board established to regulate the collective bargaining relationship between the employer and the trade-union".  (Emphasis in original.)

 

118             I turn from the purpose of s. 94(1)(a) to the authorities.  The distinction between protected union activities related to collective bargaining and lawful but unprotected union activities, affirmed by this Court in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, constitutes a fundamental tenet of Canadian labour law, frequently endorsed by courts and tribunals.

 

119             Consider Almeida, supra, a case raising issues similar to those at bar.  At issue was the employer's right to discipline customs inspectors who refused to remove buttons from their uniforms urging passage of a controversial bill then before Parliament.  Passage of the bill could have had a favourable impact on the employees' job security.  The court held that wearing such buttons was beyond the scope of union activities protected under s. 6  of the Public Service Staff Relations Act , R.S.C., 1985, c. P-35 , which speaks in terms similar to those of s. 8  of the Canada Labour Code , on the ground that "the message conveyed by the union button is in no way related to [the] bargaining process" (p. 270).  (Emphasis added.)

 

120             Similarly, in Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384, the Ontario Labour Relations Board held that the employer's refusal to permit political campaigning or canvassing on company property by union officials and employees at any time was not a violation of the Ontario Labour Relations Act, R.S.O. 1980, c. 228, on the ground that a union's social and political goals do not constitute rights under the Act unless they are necessarily incidental to collective bargaining. See also G. W. Adams, Canadian Labour Law (2nd ed. 1993), at para. 10-640; H. W. Arthurs et al., Labour Law and Industrial Relations in Canada (4th ed. 1993), at pp. 272 and 297; and Weiler, supra, at pp. 58-60.

 

121             Courts and tribunals have made the same distinction in holding that work stoppages for wholly political purposes are not "strikes" under the definition in provincial labour relations statutes: see MacMillan Bloedel Ltd. v. British Columbia Hydro & Power Authority (1992), 72 B.C.L.R. (2d) 273 (C.A.), at pp. 279-82; British Columbia Hydro & Power Authority and Int'l Brotherhood of Electrical Workers, Locals 258 and 213, [1976] 2 C.L.R.B.R. 410 (B.C.); Re Inco Ltd. and United Steelworkers of America, Local 6166 (1978), 86 D.L.R. (3d) 407 (Man. C.A.), at pp. 408-410, aff'g (1977), 81 D.L.R. (3d) 469 (Man. Q.B.), at pp. 478-79; Health Labour Relations Association and Hospital Employees' Union, Local No. 180 (1983), 3 C.L.R.B.R. (N.S.) 390 (B.C.); and Metro Transit Operating Co. v. Independant Canadian Transit Union, Local 3, 83 C.L.L.C. ¶ 16,054 (B.C.L.R.B.). Only where the governing statute clearly extends the term "strike" beyond a work stoppage related to relations between the employer and employee and the collective bargaining process, is the result otherwise: Re United Glass & Ceramic Workers of North America and  Domglas Ltd. (1978), 85 D.L.R. (3d) 118 (Ont. Div. Ct.), at pp. 125-28.

 

122             The line is drawn at the same point in the United Kingdom.  British courts have declined to extend the protection of labour legislation from actions in tort to the political activities of unions: British Broadcasting Corp. v. Hearn, [1978] 1 All E.R. 111 (C.A.); Mercury Communications Ltd. v. Scott-Garner, [1984] 1 All E.R. 179 (C.A.), at pp. 203-4, 211-13 and 217-18; Associated Newspapers Group Ltd. v. Flynn (1970), 10 K.I.R. 17 (Ch. D.); Luce v. London Borough of Bexley, [1990] I.R.L.R. 422 (E.A.T.), at p. 425.  British scholars agree.  Citrine's Trade Union Law (3rd ed. 1967) states that a strike, "whether general or not, is outside that protection [of tort immunity] if its real object is a political one" (p. 620).  And Sweet & Maxwell's Encyclopedia of Employment Law (1992), vol. 2, stipulates that "[d]isputes which are judged to be furthering a `political' or other non-industrial purpose will have no immunity [in tort]" (para. 1-8419).

 

123             These authorities demonstrate a clear consensus in the labour law of this country and abroad that the special protections accorded unions to enable them to carry out their role as collective bargaining representatives should only apply when they act in this capacity.  Unions have every right to engage in purely political activities.  But such activities do not attract the special protection conferred by labour legislation to the end of ensuring the integrity of the collective bargaining process.

 

124             The majority of the Board adverted neither to the purpose of the protection conferred by s. 94(1)(a) nor to the well-established legal distinction between collective bargaining activities of a union and political statements of a union and its members.  Instead, it referred to four of its own decisions for the proposition that declarations to the media by a union official are part of union administration and representation (p. 133 et seq.).  With respect, those decisions do not detract from the general rule that political statements by unions and their members are not protected by the Code.  None of them involved political statements.  The three cases in which the complaints were upheld all involved activity related directly to collective bargaining, strikes, or workplace conditions at issue in collective bargaining.  In Canada Post Corp. (1987), 71 di 215, the activity consisted of statements made during collective bargaining criticizing Canada Post's plan for rural services and the job losses which could result.  In Québecair/Air Québec (1987), 72 di 44, the issue was the dismissal of a union spokesperson for statements made during a lawful strike.  In Canada Post Corp. (1988), 75 di 189, the issue was suspension of the leader of a local of the union for critical comments made in the course of a union campaign to persuade the public that "super mail boxes" would lead to abandonment of door-to-door delivery of mail, an issue at stake in the ongoing collective bargaining between Canada Post and its union.  The focus in these cases was not whether the Canada Labour Code  protected the activity, but rather whether the acknowledged protection had been lost because the activity went over the line.  In the fourth case, Wardair Canada Inc. (1988), 76 di 103, the Board dismissed the complaint on the ground that the "complainant's conduct was isolated from the collective bargaining process and did not relate to any strike situation" (83 di 102, at p. 139).  A final case cited by the majority of the Board, Cadillac Fairview Corp. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206 (C.A.), concerned events during a certification drive, an activity at the core of the union's collective bargaining function.

 

125             In summary, the cases cited by the majority of the Board are consistent with the principle that the special protection which the Code provides to employees who speak out extends only to statements relating to the collective bargaining process.  None support the proposition that statements made in the union context for personal or political reasons are protected.  In relying on those cases to arrive at the conclusion that such statements were protected, the majority of the Board failed to address the real issue and made an erroneous and irrational leap to an unsupportable conclusion.  The new doctrine formulated by the majority -- that all non-abusive union statements are protected -- is not a rational extension of the law into analogous areas but rather an attempt to take protection into areas where there is neither precedent nor practical justification for protection.  To use the words of Dickson J. in CUPE, supra, at p. 237, the Board "embark[ed] on an inquiry" and "answer[ed] a question not remitted to it" -- the enquiry of whether the words were abusive or not.  The Board's "construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review".

 

(b) Interference with a Union Activity

 

126             If the union's activities were protected by the Canada Labour Code , the question would arise as to whether the conduct of the CBC, in putting Mr. Goldhawk to a choice between continuing as union president and continuing as host of Cross Country Checkup, amounted to interference with union activities.  I readily concede that it would.  Had the CBC action been in response to a statement made by Mr. Goldhawk in the course of collective bargaining, for example, it would clearly have constituted interference with the union's activities under s. 94(1)(a).  Indeed, the appellant did not take issue with this proposition.

 

(c) Justification of the CBC's Actions

 

127             The final question before the Board was whether, assuming the union's conduct was protected by the Canada Labour Code  and the CBC's conduct could be seen as interference with a union activity, the Board erred in finding that the legislation, policy and administrative review process governing the CBC did not justify the CBC in so interfering.

 

128             Iacobucci J. accepts that the CBC is governed by another statutory regime and that the standard of review on a tribunal's interpretation of a statute or regime other than its constitutive legislation is not patent unreasonability, but rather correctness: McLeod v. Egan, [1975] 1 S.C.R. 517, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. MacDonalds Consolidated Ltd. (1985), 43 Sask. R. 260 (C.A.), and United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 336.  However, having accepted that on such matters the Board is not entitled to deference, he goes on to state that "[w]hile the Board may have to be correct in an isolated interpretation of external legislation, the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness" (pp. 198-88).  My colleague appears to apply the functional test to the question of interpreting an external statute, concluding that the standard of review is correctness, but then he effectively rejects this result and applies a standard of patent unreasonability to the decision of the Board globally.

 

129             At this point, I part company with my colleague.  In my view, there is only one standard of review applicable to the issue of the obligation on the CBC under the Broadcasting Act, R.S.C., 1985, c. B-9, and that is correctness.  My first difficulty is that although the question of interpretation of an external statute would ordinarily be reviewed on a standard of correctness, under my colleague's analysis, the standard would be effectively downgraded, in a global sense, to patent unreasonability.  Errors on questions outside a tribunal's jurisdiction would be subsumed and discounted under such an approach. 

 

130             My second difficulty is a matter of logic.  If the Board's decision regarding the obligations of the CBC under its statute is incorrect, it follows that its conclusion that the CBC committed an unfair labour practice must be patently unreasonable and the Board's decision on this question cannot be sustained.  It cannot be reasonable to find a body guilty of an unfair labour practice when in fact its conduct was justified under another statute.  Being based on a false premise, such a conclusion would be unprincipled and irrational.  The conclusion that the CBC was not justified in its actions is essential to the ultimate conclusion of interference.  It follows that in this case, error on the question of the statutory obligations on the CBC should not be remedied by some ultimate or global review for patent unreasonability.

 

131             The functional test suggests that the Board must be correct on the question of the justifiability of the CBC's conduct under its statutory regime. The question is one outside the special competence of the Board. In dealing with the CBC's obligations under the Broadcasting Act and its regulatory regime, the Board was not dealing with a question at the heart of its mandate. The Board possesses no specialized knowledge in broadcasting.  It has no expertise in interpreting the Broadcasting Act or regulations.  The question of the standards of conduct of the CBC is a matter of general public importance far transcending the interest or expertise of the Canada Labour Relations Board.  An error in interpretation of the obligations on the CBC under its statute and administrative regime could have far-reaching consequences in many areas other than labour law.  If the Board makes an error in this important area which is beyond its field of expertise, the courts should be able to set it right.  Parliament cannot be presumed to have intended anything else.

 

132             The remaining question is whether the majority of the Board was correct in concluding that the CBC was not justified in putting Mr. Goldhawk to a choice between continuing as union president and host of Cross Country Checkup pursuant to its policy.  The majority did not consider the precise ambit of the obligation of impartiality which lies on the CBC.  Its first position seems to have been that the CBC's obligation must always yield to the demands of the Canada Labour Code ; its second that even if this were not the case, greater accommodation was required than was demonstrated in this case.  While the wording of the majority judgment is somewhat opaque,  the reasons taken together with the conclusion indicate that the Board treated the CBC's duty as a mere internal directive -- a management right or corporate code of behaviour over which the Canada Labour Code  takes precedence for purposes of applying s. 94(1)(a) of the Code.  In short, no credit was given for any statutory or regulatory obligations on the CBC (see pp. 148-51).  Rather, the CBC was held to the standard of a private business.

 

133             In my view, the Board's failure to consider the special obligation imposed on the CBC by the law was an error.  The CBC's constituting statute does not expressly impose a duty of impartiality upon the CBC.  However, the need for impartiality can be inferred from s. 3 of the Broadcasting Act and in particular from the requirements that the CBC "be a balanced service of information, enlightenment and entertainment" (s. 3(g)(i)) and that it "contribute to the development of national unity" (s. 3(g)(iv)).  Parliament has charged the CRTC with the duty of supervising the CBC.  Any doubt about the obligation of the CBC to function as an impartial, unbiased source of information in fact and in perception, was removed by the CRTC in 1979, when in renewing the CBC's licence, it affirmed that "[t]he public must be able to expect, from its national radio and broadcasting services, a fair, full and objective discussion of national and international events through a diversified news and public affairs program service" (Decision CRTC 79-320:  Renewal of the Canadian Broadcasting Corporation's Television and Radio Network Licences, April 30, 1979, at p. 38).

 

134             The imperative on the CBC to maintain impartiality in its public affairs programming was affirmed in Re Canadian  Broadcasting Corp. and National Association of Broadcast Employees and Technicians (1973), 4 L.A.C. (2d) 263, at pp. 270-71.  Pointing out that the CBC's position is quite different "from the normal manufacturing plant", the arbitration board emphasized that "in presenting a news broadcast whether by radio or television, the CBC must be conscious of its impartiality, and it is therefore of legitimate concern that the person communicating the news maintain an integrity that neither impairs the CBC's attempts at impartiality, nor its image of impartiality". (Emphasis added.)  Taking the hypothetical case of a newscaster who becomes a candidate for a political party, the arbitration board asserts that "[e]ven assuming that such a person was capable of presenting an objective news broadcast with respect to the election in which he was a candidate, it would be open to the employer to take some action with respect to that particular person because audience confidence in the integrity of his news broadcast would be impaired".  (Emphasis added.)  The same applies to a current affairs program like Cross Country Checkup.

 

135             Given the obligation on the CBC to maintain the perception of impartiality in its public affairs broadcasts, it follows that the majority of the Board erred in treating the CBC as a private enterprise governed only by a flexible management directive which must yield to the superior legal demands of s. 94(1) of the Code.  Contrary to the majority's conclusion on this point, the CBC policy was capable of being considered a "compelling reason" for interfering with the activities of the union and Mr. Goldhawk, assuming such activities were protected by the Code.

 

Disposition

 

136             I would allow the appeal and set aside the decision of the majority of the Canada Labour Relations Board.

 

 

 

                   Appeal dismissed with costs to the respondent union, McLachlin J. dissenting.

 

                   Solicitors for the appellant:  Heenan Blaikie, Montreal.

 

                   Solicitors for the respondent the Canada Labour Relations Board:  Caroline, Engelmann, Gottheil & Lynk, Ottawa.

 

 

                   Solicitors for the respondents the Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk:  Pollit, Arnold, MacLean, Toronto; Golden, Green & Chercover, Toronto.