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A-303-80
North Canada Air Ltd. (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Ryan and Le Dain JJ. and MacKay D.J.—Calgary, October 17; Ottawa, November 21, 1980.
Judicial review — Labour relations — Application to review and set aside certification of bargaining agent — Union applied for certification as bargaining agent for Norcanair — Board held that bargaining unit was appropriate — Union applied for a declaration that Norcanair and Norcanair Elec tronics were a single employer pursuant to s. 133 of the Canada Labour Code — Board called for a representation vote by employees of Norcanair and Norcanair Electronics, and indicated that ballots of latter employees would remain sealed pending Board's decision on s. 133 declaration — Whether or not Board exceeded its jurisdiction by proceeding on the basis of a vote held prior to the s. 133 declaration — Application dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 118(i),(p)(v), 133.
Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp. [1979] 2 S.C.R. 227, referred to.
APPLICATION for judicial review.
COUNSEL:
D. Laird for applicant.
R. T. G. McBain, Q.C. for respondent Canada Labour Relations Board.
H. Caley for Canadian Air Line Employees' Association.
SOLICITORS:
Cook, Snowdon & Laird, Calgary, for applicant.
Barron, McBain, Calgary, for respondent Canada Labour Relations Board.
Caley & Wray, Toronto, for Canadian Air Line Employees' Association.
The following are the reasons for judgment rendered in English by
LE DAIN J.: This is a section 28 application to review and set aside the decision of the Canada Labour Relations Board on November 6, 1979 certifying the Canadian Air Line Employees' Association ("CALEA") as the bargaining agent for a unit of the employees of North Canada Air Ltd. ("Norcanair") and Norcanair Electronics Limited ("Norcanair Electronics") described as follows:
all employees of North Canada Air Ltd., carrying on business under the trade name and style of "Norcanair" and Norcanair Electronics Ltd. excluding pilots, accounting and secretarial personnel, supervisors, and those above.
In the Board's order of November 6, the certifi cation followed a declaration by the Board, pursu ant to section 133 of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C. 1972, c. 18, s. 1, that Norcanair and Norcanair Electronics were a single employer and a single federal busi ness for all purposes of Part V of the Code. That declaration was attacked by a separate section 28 application in A-302-80, [supra, page 399], chiefly on the ground that Norcanair Electronics was not a federal undertaking or business. The reasons for judgment dismissing that application outline the history of the application for certification and the application for a declaration under section 133 and contain the factual background necessary to an appreciation of the issues raised by this section 28 application.
The applicant attacks the certification order on the ground, broadly speaking, that the Board acted without jurisdiction and denied the applicant natu ral justice by the manner in which it introduced and gave effect to the application for a declaration under section 133 in the certification proceedings. More specifically the applicant contends that the Board exceeded its jurisdiction in certifying the Union as agent for a bargaining unit to include the employees of Norcanair Electronics consequent upon the declaration under section 133 and that in doing so it denied the applicant an opportunity to make representations as to the appropriateness of the bargaining unit. The applicant argues that in
view of the application by CALEA on July 11, 1979 for certification as agent for a bargaining unit consisting of employees of Norcanair alone and the Board's determination on August 10, 1979 of an appropriate unit of such employees, the Board was without statutory authority to permit the employees of Norcanair Electronics to vote at the same time as the employees of Norcanair and to enlarge the bargaining unit to include the employees of Norcanair Electronics as a result of the declaration under section 133. In its reasons for decision issued on December 20, 1979 the Board said that it had treated the application for a declaration under section 133 as in effect an amendment to the application for certification. The applicant denies that the Board had authority to do so. The applicant further argues that in proceeding on the basis of a vote held prior to the declaration under section 133 the Board exceeded its jurisdiction by giving retrospective application to the declaration.
In my opinion the Board did not exceed its jurisdiction by the manner in which it proceeded in this case. It had authority to make the declaration under section 133 and it had authority, as an obvious consequence of that declaration (which was to apply for all purposes of Part V of the Code), to certify the Union as the bargaining agent for a unit that would include the employees of Norcanair Electronics as well as those of Nor- canair. The fact that it called for a vote of the employees of Norcanair Electronics at the same time as the vote of the employees of Norcanair, and prior to the decision under section 133, and that it defined the bargaining unit in two stages are mere matters of procedure that could not deprive it of jurisdiction. The Board had ample authority for both purposes under section 118, paragraphs (1) and (p)(v), of the Code. Given this view of what the Board did in fact, there is in my opinion no merit in the contention that the Board exceeded its jurisdiction by treating the applica tion for a declaration under section 133 as an amendment of the application for certification and by giving the declaration under section 133 an allegedly retrospective effect. None of the appli-
cant's objections to the manner in which the Board proceeded goes to jurisdiction as that concept is to be applied in the light of the decision of the Supreme Court of Canada in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation [ 1979] 2 S.C.R. 227.
Nor in my opinion has the applicant established that the Board denied it natural justice on the question of the appropriateness of the bargaining unit. The implication, for the possible scope of the certification, of the application under section 133 and of the Board's decision that the employees of Norcanair Electronics should vote at the same time as those of Norcanair was perfectly clear. The applicant was afforded a full opportunity by written submissions and the hearing held on November 5, 1979 to make any representations it might choose to make concerning the appropriate ness of a bargaining unit that would include the employees of Norcanair Electronics. In fact, the written submission of the applicant which was filed on September 4, 1979 with reference to the application for a declaration under section 133 appears to have contained an allusion to this issue where it was said: "It is submitted that the employees of North Canada Air Ltd. do not share a community of interest with employees of Nor- canair Electronics Ltd. and without common con trol and direction there is no sound labour rela tions reason to grant the application on the tests found in the Canadian Press decision."
For these reasons I would dismiss the section 28 application.
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RYAN J.: I concur.
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MACKAY D.J.: I concur.
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