Date: 20000706
Docket: A-301-99
ISAAC, J.A.
MALONE, J.A.
BETWEEN:
BATON BROADCASTING INCORPORATED, doing business as
CFRN-TV, and BATON BROADCASTING INCORPORATED,
doing business as CFCN-TV
Applicants
- and -
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario on Thursday, July 6, 2000)
LINDEN J.A.
[1] This is an application for judicial review of a decision made by the Canada Industrial Relations Board under s.35(1) declaring the employers of both CFRN-TV and CFCN-TV employees as a single employer.
[2] After this Court ruled out portions of an affidavit that supported an argument on largely factual grounds, counsel for the applicant focussed on one alleged error in the decision. He contended that the Board exceeded its jurisdiction by acting contrary to the policy of the Canada Labour Code and by relying on irrelevant and extraneous material. He relied on subsection 22(1) of the Code and paragraph 18.1(4)(a) of the Federal Court Act as giving this Court the authority to intervene. Citing Padfield v. Minister of Agriculture [1968] 1 all E.R. 694 at p. 699, he contended that the Board"s decision was in conflict with the policy of the Code and, hence, beyond its jurisdiction. Further, he said, it used irrelevant and extraneous material which deprived it of its jurisdiction in accordance with S.E.I.U. v. Nipawin District (1973) 41 D.L.R. (3d) 6.
[3] One of the reasons given by the Board as jeopardising employee rights was that the employees of the Edmonton station would not be able to transfer to the Calgary station without losing their seniority. This was improper, he said, because there was no right of employees to transfer at all prior to the new agreement with the Edmonton station, freely agreed to by employer and the union. By this reasoning, he said, the Board was interfering with free collective bargaining, a bedrock policy of the Canada Labour Code, and basing itself on irrelevant and extraneous material.
[4] We do not agree. In our view, the Board"s decision and its reasoning is unimpeachable. In a 36 page decision, it traced the development of the broadcasting industry, the evolution of these two stations and how they both came to be owned by Baton. Of the five criteria cited in the case of Murray Hill Limousine that the Board must consider prior to exercising its discretion to declare a single employer, three were agreed to. As for the other two, the Board decided that the two stations were "associated and related" and had "common direction or control", conclusions which have not been challenged before us.
[5] After concluding that the five criteria were met, the Board went on to consider whether it should exercise its discretion. In a discussion that went on for 10 pages, it cited the leading authorities, including Prince Rupert Grain, and gave several reasons for exercising its discretion. We have not been persuaded by the excellent argument of counsel for the applicants that they made any jurisdictional error in what they have said or done. The reliance of the Board on the transfer issue, while not worded as precisely as it might have been, is not extraneous but relevant to the future events and opportunities at these two Alberta stations. True, the employer helped to bring about this disparity leading to possible jeopardy and disharmony in the future, but it is nevertheless a legitimate matter to consider in making a determination under s. 35. Moreover, the employer raised this new provision in its favour at the Board but now take the opposite view, contending that it is irrelevant.
[6] Further, we have not been persuaded of any interference with the policy of free collective bargaining and free association embedded in the Code. Just as discretion cannot be untrammelled, so too free collective bargaining is not untrammelled.
[7] In conclusion, we have not been persuaded that the Board exceeded its jurisdiction. The Supreme Court, through Mr. Justice Cory, struck a cautionary note in Prince Rupert Grain Ltd. v. I. L. W. U. [1996] 2 S.C.R., 432, at p. 447, when he stated:
| Quite simply, courts should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction. |
While the older cases may not have been overruled, their influence has certainly been diminished by the recent jurisprudence. We agree with counsel for the Respondent when he said "the Board did not exceed its jurisdiction, it exercised it".
[8] In this case, the Board was operating squarely within its jurisdiction essentially fashioning a new bargaining unit composed of two existing ones. That is a determination that Parliament intended it to make. (See s. 16(p)(v) Code). We can see no reason to interfere with their determination.
[9] The application will be dismissed with costs.
"A. M. Linden"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: BATON BROADCASTING INCORPORATED, doing business as CFRN-TV, and BATON BROADCASTING INCORPORATED, doing business as CFCN-TV |
- and -
| COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA |
DATE OF HEARING: WEDNESDAY, JULY 5, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LINDEN, J.A. |
Delivered at Toronto, Ontario on Thursday, July 6, 2000
APPEARANCES: Mr. Douglas K. Gray, and
Mr. Stephen J. Shamie
Mr. Daniel Rogers
| SOLICITORS OF RECORD: Hicks Morley Hamilton Stewart Storie |
Barristers & Solicitors
Thirtieth Floor
Toronto-Dominion Tower
Box 371, T-D Centre
Toronto, Ontario
M5K 1K8
Barrister & Solicitor
#550, 1199 West Pender Street
Vancouver, British Columbia
V6E 2R1
FEDERAL COURT OF APPEAL
Date: 20000706
Docket: A-301-99
BETWEEN:
| BATON BROADCASTING INCORPORATED, doing business as CFRN-TV, and BATON BROADCASTING INCORPORATED, doing business as CFCN-TV |
Applicants
| COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA |
Respondent
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