A-24-85
Okanagan Helicopters Ltd. (Applicant)
v.
Canadian Helicopter Pilots' Association
(Respondent)
INDEXED AS: OKANAGAN HELICOPTERS LTD. V. CANADIAN
HELICOPTER PILOTS' ASSN.
Court of Appeal, Heald, Hugessen and Stone
JJ.—Vancouver, December 5 and 6; Ottawa,
December 19, 1985.
Judicial review — Applications to review — Labour rela
tions — Dues check off — "Interim" ruling by Canada Labour
Relations Board re applicability of new legislation to existing
collective agreement "decision" within Code s. 120.1(2) and
Act s. 28, and therefore subject to judicial review — As
interest of dissenting bargaining unit members herein with
respect to dues check off different from interest of union,
Board's failure to give said members notice of proceeding
where "interim" ruling made contrary to rules of natural
justice — Dissenting members having sufficient interest to
raise issues in s. 28 application — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Canada Labour Code, R.S.C.
1970, c. L-1, ss. 120.1 (as enacted by S.C. 1977-78, c. 27, s.
42), 162 (as am. by S.C. 1984, c. 39, s. 31), 184 (as enacted by
S.C. 1972, c. 18, s. 1) — Federal Court Rules, C.R.C., c. 663,
RR. 1401(3), 1403(1),(2), 1404, 1405, 1406 (as am. by
SOR/79-57, s. 25), 1409.
Labour relations — Dues check off — Representative role
of union as certified agent for bargaining unit members —
Rights of individual members with respect to Labour Relations
Board "interim" ruling and s. 28 application where members'
interest different from union's — Dissenting members had
right to notice of proceeding wherein "interim" ruling made —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 120.1 (as
enacted by S.C. 1977-78, c. 27, s. 42), 162 (as am. by S.C.
1984, c. 39, s. 31), 184 (as enacted by S.C. 1972, c. 18, s. 1) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
A collective agreement included a "modified Rand" check
off clause whereby employees who did not wish to have their
union dues deducted at source could opt out of the check off.
Before the expiry of that collective agreement, an amendment
to the Canada Labour Code made the check off compulsory if
the union requested it. When the employer refused the union's
request that a Rand formula be included in the existing collec
tive agreement, the union filed a complaint of unfair labour
practice before the Canada Labour Relations Board. The
Board summoned the parties to a hearing to discuss the applic
ability of the new legislation to existing collective agreements.
The Board refused to give notice of that hearing to the
employees at large and, in particular, to those who had opted
out of compulsory check off.
The Board first ruled that the new legislation was applicable
to existing contracts. When the parties failed to settle their
differences in the light of this ruling, it then ruled that the
employer's refusal was an unfair labour practice and ordered it
to retroactively include the compulsory dues check off in the
then expired collective agreement.
This is a section 28 application against both decisions of the
Board, with two dissenting employees intervening.
The first issue is whether the Board's first ruling was a
"decision" within the meaning of section 28 of the Federal
Court Act or only a preliminary or incidental determination or
expression of opinion which have been held not to be
"decisions".
The second issue is whether the question of the absence of
notice to the dissenting employees is properly before the Court.
In this regard, it is argued, firstly, that the employer has no
interest in the absence of notice and therefore cannot be heard
to argue that point and, secondly, that the dissenting employees
have standing only as intervenors and cannot raise a question
which is peculiar to them only.
Held, the application should be allowed.
Section 120.1 of the Code specifically mandates the Board to
make interim decisions which are expressly qualified as "final".
The interim ruling on the applicability of the new legislation to
the existing collective agreement is therefore a decision within
the meaning of section 28 of the Federal Court Act and the
Court has jurisdiction to review it.
The employer cannot invoke the absence of notice to attack
the Board's decisions since the employer was the very person
whose duty it was to give that notice. A denial of natural
justice, caused by a failure to notify an interested person of
proceedings by which his rights may be affected, results in the
ensuing decision being voidable at the instance of that person
only.
The dissenting employees have the necessary standing to
raise a question which is peculiar to them only. The judicial
review provisions of the Act and Rules permit any interested
person, subject to minimal procedural requirements, to partici
pate in the hearing of a section 28 application and to raise
whatever questions he deems proper.
The underlying issue in this case is the representative role of
a trade union as the certified bargaining agent for the members
of the bargaining unit. As a general rule the union acts for or in
conjunction with the employee with respect to collective agree
ments or the enforcement of rights arising thereunder. The
Courts have held, however, that where an employee has a
patrimonial interest which is actually opposed to that of the
union or of other members whose interests the union has chosen
to espouse, such an employee has standing and is a necessary
party to proceedings before the appropriate tribunal. An
employee who has exercised the option to revoke his dues check
off has a vested right not to have his dues checked off and has a
legitimate interest in urging that the legislation revoking that
right is invalid or does not have the effect contended for by the
union, especially when the retroactive application of the Rand
formula to wages already paid is at stake. In those circum
stances, it is beyond dispute that the interests of the union and
those of the dissenting employees were directly opposed to one
another.
The Board therefore ought to have given notice to the
employees before embarking on its enquiry.
CASES JUDICIALLY CONSIDERED
APPLIED:
Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of
Canada Limited, [1983] 2 F.C. 71 (C.A.); Hoogendoorn
v. Greening Metal Products and Screening Equipment
Company et al., [1968] S.C.R. 30; Re Bradley and
Ottawa Professional Fire Fighters Assn., [1967] 2 O.R.
311 (C.A.); Appleton v. Eastern Provincial Airways Ltd.,
[1984] 1 F.C. 367 (C.A.).
DISTINGUISHED:
Attorney General of Canada v. Cylien, [1973] F.C. 1166
(C.A.); B.C. Packers Ltd. v. Canada Labour Relations
Board, [1973] F.C. 1194 (C.A.); Anti-dumping Act (In
re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22
(C.A.); Paul L'Anglais Inc. v. Canada Labour Relations
Board, [1979] 2 F.C. 444 (C.A.); Syndicat des employés
de production du Québec et de l'Acadie v. Canada
Labour Relations Board et al., [1984] 2 S.C.R. 412;
(1985), 55 N.R. 321.
REFERRED To:
General Motors of Canada Ltd. v. Brunet, [1977] 2
S.C.R. 537.
COUNSEL:
Katherine J. Heller for applicant.
James E. Dorsey for respondent Canadian
Helicopter Pilots' Association.
Diane Pothier for respondent Canada Labour
Relations Board.
William C. Kaplan for intervenors Mark Gil-
bert and Jerry Cutler.
SOLICITORS:
Russell & DuMoulin, Vancouver, for appli
cant.
Braidwood, Nuttall, MacKenzie, Brewer &
Greyell, Vancouver, for respondent Canadian
Helicopter Pilots' Association.
Canada Labour Relations Board, Ottawa, on
its own behalf.
Jordan & Gall, Vancouver, for intervenors
Mark Gilbert and Jerry Cutler.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is a section 28 application
against an "interim" decision of the Canada
Labour Relations Board given December 21, 1984.
It was heard at the same time as the section 28
application in Court file No. A-573-85, directed
against a further decision rendered June 18, 1985,
by which the Board purported finally to dispose of
the matter before it. It is convenient to set out the
background to both decisions together.
Canadian Helicopter Pilots' Association (the
union) is the certified bargaining agent for a group
of employees of Okanagan Helicopters Ltd. (the
employer). A collective agreement was entered
into between them for the period February 1,
1983—January 31, 1985. Article 2.03' of that
agreement provided a "modified Rand" check off
clause. The most important feature of that clause
was that it preserved, subject to strict time con
straints, the right of employees who did not wish to
have their union dues deducted at the source to opt
out of the check off. In fact, the record indicates
that considerable numbers of employees exercised
this option and that, in October 1984, only eight
out of eighteen members of the bargaining unit
(44 per cent) were subject to check off. In June
' 2.03 During the term of this agreement, the Company
will deduct from the employees covered by this agree
ment the Association membership dues and initiation
fees in accordance with the terms and procedures below:
a) current employees:
(i) employees currently authorizing dues deduction
may revoke their authorization in writing 30-60
days following the ratification of the agreement
by the parties. Failure to revoke such authoriza
tion will result in the dues deduction becoming
non-revocable,
(Continued on next page)
1984, Parliament amended section 162 of the
Canada Labour Code [R.S.C. 1970, c. L-1 (as am.
by S.C. 1984, c. 39, s. 31)]. The new text, which
was proclaimed in force July 18, 1984, effected an
important change in the law:
Compulsory Check Off
162. (1) Where a trade union that is the bargaining agent for
employees in a bargaining unit so requests, there shall be
included in the collective agreement between the trade union
and the employer of the employees a provision requiring the
employer to deduct from the wages of each employee in the
unit affected by the collective agreement, whether or not the
employee is a member of the union, the amount of the regular
union dues and to remit the amount to the trade union
forthwith.
As can be seen, this new text makes the "Rand
formula" obligatory. All that is required is for a
certified bargaining agent to request it and the
formula
... shall be included in the collective agreement between the
trade union and the employer ....
Almost immediately after the coming into force
of the new legislation, the union requested the
inclusion of a Rand formula in the existing collec
tive agreement. On the employer's refusal, the
union filed a complaint of unfair labour practice
under section 184 [as enacted by S.C. 1972, c. 18,
s. 1]. The Board summoned the parties to a hear
ing in December 1984, at which the single issue
discussed was the applicability of the new legisla
tion to existing collective agreements. Although
requested to do so by the employer, the Board
(Continued from previous page)
(ii) employees not authorizing dues deduction will
sign a form authorizing dues deduction within
28 days of the ratification of the agreement by
the parties. These employees will have a period
of 30-60 days from the time of signing the
authorization to revoke such authorization in
writing. Failure to revoke such authorization
will result in the dues deduction becoming effec
tive following the 60 day period and non-revo
cable,
b) individuals recalled from layoff:
(i) individuals who had previously authorized dues
deduction may revoke their authorization in
writing 30-60 days following their return to
work. Failure to revoke such authorization will
result in the dues deduction becoming non-revo
cable,
refused to give notice of that hearing to the
employees at large and, in particular, to those
employees who had previously opted out of com
pulsory check off.
By its decision of December 21, 1984, the
Board, by a majority, ruled that the new legisla
tion was indeed applicable to existing contracts. It
referred the matter back to the parties with an
exhortation to them to settle their differences in
the light of this ruling. It also arranged for copies
of its decision to be given to all the employees in
the bargaining unit.
The Board's hopes of settlement proved vain
and, in due course, hearings on the original com
plaint were resumed April 30 and May 1, 1985. In
the meantime, two of the dissenting employees,
Messrs. Gilbert and Cutler, who it will be recalled
had been notified of the December 21, 1984 deci
sion but not of the proceedings leading up to it,
intervened and were granted standing in the pro-
ceedings,--before the Board. By its decision of June
18, 1985, the Board found that the employer's
refusal to give effect to the new section 162 con
stituted an unfair labour practice within the mean
ing of section 184. As a remedy, it ordered the
employer to retroactively include compulsory dues
check off in the by then expired collective agree
ment with effect from the end of July 1984.
(Continued from previous page)
(ii) individuals who had not previously authorized
dues deduction will sign a form authorizing dues
deduction at the time of re-employment. These
individuals will have a period of 30-60 days
from the time of signing the authorization to
revoke in writing such authorization. Failure to
revoke such authorization will result in the dues
deduction becoming effective following the 60
day period and non-revocable.
c) newly hired employees within the certifiction (sic) or
employees transferred into the certification will sign
a form authorizing dues deduction at the time of hire
or transfer. These employees will have a period of
30-60 days from the time of signing the authoriza
tion to revoke such authorization in writing. Failure
to revoke such authorization will result in the dues
deduction becoming effective following the 60 day
period and non-revocable.
As indicated at the outset, the employer has
launched section 28 proceedings against both deci
sions of the Board and these proceedings were
heard at Vancouver December 5 and 6, 1985. On
December 3, 1985, the employees Gilbert and
Cutler, who, as already stated, had intervened in
the second set of proceedings before the Board,
filed a notice of motion in this Court pursuant to
Rule 1405(1) [Federal Court Rules, C.R.C., c.
663] seeking leave to be heard on the argument on
the first application (Court file No. A-24-85).
Leave was granted at the opening of the hearing
on December 5 and counsel for Messrs. Gilbert
and Cutler filed a memorandum of fact and law
and were heard.
At the very threshold of these proceedings is the
question as to whether the Board's ruling (to use a
neutral term) of December 21, 1984, was a "deci-
sion" within the meaning of section 28 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10]. As the Board itself said in that ruling, it had
"only clarified the law". No order was made and
the original complaint under section 184 was not
disposed of in any way.
In appearance, the ruling of December 21, 1984
has therefore all the characteristics of the sort of
preliminary or incidental determination or expres
sion of opinion which have been held by this Court
not to be "decisions" within the meaning of section
28. 2 As stated by this Court in Anheuser-Busch,
Inc. v. Carling O'Keefe Breweries of Canada Lim
ited, [1983] 2 F.C. 71 (C.A.) [at page 75], section
28 gives us jurisdiction to review
... only final orders or decisions—that is—final in the sense
that the decision or order in issue is the one that the tribunal
has been mandated to make and is a decision from which legal
rights or obligations flow.
The position of the Board is however, in this
respect, different from that of many, if not most,
2 See, for example: Attorney General of Canada v. Cylien,
[1973] F.C. 1166 (C.A.); B.C. Packers Ltd. v. Canada Labour
Relations Board, [1973] F.C. 1194 (C.A.); Anti-dumping Act
(In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22
(C.A.).
other administrative tribunals. The Board is, by its
constituent statute, specifically mandated to make
interim decisions in the course of deciding any
matter before it, which decisions may deal with
only one or some of the issues before it but are
nevertheless final. Such is the effect of section
120.1 of the Code [as enacted by S.C. 1977-78, c.
27, s. 42]. 3
In the present case, the Board had before it a
complaint of unfair labour practice under section
184. Clearly one of the issues arising from that
complaint was the application of the new text of
section 162 to existing collective agreements.
While the ruling of December 21, 1984, does not
contain or incorporate a formal order or declara
tion, it does resolve that issue in unmistakable
terms:
Parliament has, as of July 18, 1984, created a minimum
standard for the deduction and remittance of union dues for
employees who are affected by a collective agreement in the
federal jurisdiction, to which the Code applies. The only
requirements for that standard to apply are that there is a
collective agreement in force and the trade union which is the
bargaining agent so requests. (Decision, Case, p. 211).
Furthermore this issue was not one on which the
Board was simply, as a preliminary matter, obliged
to take a position without having any power or
jurisdiction to decide it. 4 Rather, it was a matter
which fell squarely within the jurisdiction and
powers of the Board. The Board's decision on such
a matter is, in the words of subsection 120.1(2),
"final". It was treated as such by all concerned
during the second set of hearings, when no submis
sions were sought or made regarding the applica
tion of section 162 to existing agreements.
3 120.1 (1) Where, in order to dispose finally of an applica
tion or complaint it is necessary for the Board to determine two
or more issues arising therefrom, the Board may, if it is
satisfied that it can do so without prejudice to the rights of any
party to the proceeding, issue a decision resolving only one or
some of those issues and reserve its jurisdiction to dispose of the
remaining issues.
(2) A decision referred to in subsection (1) is, except as
stipulated by the Board, final.
(3) In this section, "decision" includes an order, a determina
tion and a declaration.
4 See, for example, Paul L'Anglais Inc. v. Canada Labour
Relations Board, [1979] 2 F.C. 444 (C.A.).
In the circumstances, I am satisfied that the
ruling of December 21, 1984 is a decision within
the meaning of section 28 of the Federal Court
Act, and that we have jurisdiction to review it.
The only serious questions which arise on such
review are those resulting from the failure of the
Board to give notice of the proceedings leading to
its ruling of December 21, 1984 to those members
of the bargaining unit who had elected, under
article 2.03 of the collective agreement, to opt out
of dues check off.
It was suggested in argument that the question
of the absence of notice to the dissenting
employees was not properly before us at all and
therefore should not be considered. The argument
proceeds in two steps:
1. The employer, who initiated the section 28
application, has no interest in and therefore cannot
be heard to argue the absence of notice.
2. The dissenting employees have standing only
as intervenors and therefore cannot raise a ques
tion which is peculiar to them only.
I am prepared to concede the first step. The
proposition that a denial of natural justice, caused
by a failure to notify an interested person of
proceedings by which his rights may be affected,
results in the ensuing decision being voidable at
the instance only of that person seems to me to be
sound. Indeed to hold the contrary could lead to
the absurdity of a decision being set aside on those
grounds at the instance of the very person whose
duty it was to give the notice in question.
The second branch of the argument appears to
me, however, unsupportable. In my opinion, the
whole thrust of section 28 of the Federal Court
Act when read with Division D of Part V of the
Rules is that multiple applications are not
encouraged and that any interested person is at
liberty, subject to minimal procedural require
ments, to participate in the hearing of a section 28
application and to have standing to raise whatever
questions seem to him to be proper. I would refer,
in particular, to Rules 1401(3), 1403(1) and (2),
1404, 1405 and 1406 [as am. by SOR/79-57, s. 25]
and the definition of "interested person" in Rule
1409. That being so, it does not surprise me that
counsel were not able to find any reported case to
support the proposition.
Accordingly, I conclude on this aspect of the
matter that we are properly seized of the question
of the effect of the Board's failure to give notice to
the employees of the proceedings leading up to the
December 21, 1984, decision.
The issue is at bottom that of the representative
role of a trade union as the certified bargaining
agent for the members of the bargaining unit. As a
general rule, the union acts for and binds the
employees, who individually have no standing in
collective bargaining relations with their employer.
Without the support and participation of the
union, an employee cannot pursue grievance proce
dures or even bring action before the courts for the
enforcement of rights arising under the collective
agreement. 5
As an exception to this rule, however, the courts
have held that, where an employee has a
patrimonial interest which is actually opposed to
that of the union or of other members whose
interests the union has chosen to espouse, such an
employee has standing and is a necessary party to
proceedings before the appropriate arbitral or
other tribunal. The leading cases are:
Hoogendoorn v. Greening Metal Products and
Screening Equipment Company et al., [1968]
S.C.R. 30; Re Bradley and Ottawa Profes
sional Fire Fighters Assn., [1967] 2 O.R. 311
(C.A.); and Appleton v. Eastern Provincial
Airways Ltd., [1984] 1 F.C. 367 (C.A.).
In Hoogendoorn, union and company had signed
a collective agreement calling for compulsory
check off. Hoogendoorn refused to authorize such
check off and a wildcat strike ensued. Union and
company then agreed to submit to arbitration the
question as to whether Hoogendoorn was obliged
to authorize the check off or face discharge. Hoo-
gendoorn was not given notice of the arbitration.
5 General Motors of Canada Ltd. v. Brunet, [1977] 2 S.C.R.
537.
Hall J., speaking for the majority of the Supreme
Court, said, at page 39:
The arbitration proceeding was unnecessary as between the
union and the company. Both fully understood and agreed that
the collective agreement required Hoogendoorn to execute and
deliver to the company a proper authorization form for deduc
tion of the monthly union dues being paid by members of the
union. Both the company and the union wanted him to do so.
The arbitration proceeding was not necessary to determine that
Hoogendoorn was required so to do. Both knew he was ada
mant in his refusal. The proceeding was aimed at getting rid of
Hoogendoorn as an employee because of his refusal either to
join the union or pay the dues. It cannot be said that Hoogen-
doorn was being represented by the union in the arbitration
proceeding. The union actively took a position completely
adverse to Hoogendoorn. It wanted him dismissed.
I can come to no other conclusion but that in the circum
stances of this case it was improper for the learned arbitrator to
proceed as he did in Hoogendoorn's absence. (Emphasis
added.)
In Bradley, supra, the employer made certain
promotions consistent with its interpretation of the
seniority provisions of the collective agreement.
The union disputed that interpretation and took
the matter to arbitration on behalf of the
employees who would otherwise have received
those promotions. A necessary consequence of the
union's position was that the first group of
employees should lose the benefit of the promo
tions they had obtained. The members of that
group were not given notice of the arbitration
proceedings. Laskin J.A., as he then was, speaking
for the Ontario Court of Appeal, said, at pages
316 and 317:
A collective agreement is a unique legal institution because,
despite the generality of its terms as part of a bargain made
between a representative union and an employer, its existence
and application result in personal benefits to employees who are
covered by it. Once it is accepted, as it must be, that the
benefits running to employees may differ according to job
classification or seniority ranking (to take two illustrations),
and that the representative union is put to a choice between
employees who competed for the same preferment as to which
it will support against a different choice made by the employer,
substantive employment benefits of particular employees are
put in issue and they are entitled to protect them if the union
will not.
It follows that they are entitled to notice of arbitration
proceedings taken to test their right to continued enjoyment of
the benefits. The fact that particular provision for notice is not
made either in the statute or in the collective agreement is of no
moment. There is a large silence in both—and this is not
limited to collective bargaining relations in fire fighting—so far
as concerns the procedure to be followed in an arbitration. The
common law has been specially sensitive to deprivation of
property or contractual advantages in proceedings of an
adjudicative character without previous notice thereof to per
sons likely to be directly affected, unless there is clear statutory
exclusion of such notice. In the present case, there is none.
Bradley was specifically approved by the
majority of the Supreme Court in Hoogendoorn.
Finally, in Appleton, supra, the employer, fol
lowing the calling of a strike, had employed other
persons to do the jobs of the striking employees.
The union's position, in an unfair labour practices
complaint before the Canada Labour Relations
Board, was that the employer must reinstate the
striking employees even though that might result
in the displacement of the new employees. The
Board accepted that position. Thurlow C.J., speak
ing for the majority in this Court, said, at page
371:
Here the applicants, whether they were employees before the
strike began or were hired after it began, were all members of
the bargaining unit for which CALPA was the recognized
bargaining agent. As members of the unit they would be bound
by the collective agreement which the Board by its order
established. Yet it is obvious that their interests were adverse to
those espoused by CALPA. As members of the unit for whom
CALPA acted they were, in my view, de facto parties and as
persons against whose interest an order was to be made they
were persons who ought to have been given an opportunity to
become parties before such an order was made.
The other point that arises is whether as a matter of natural
justice such pilots were entitled to notice and an opportunity to
be heard before such an order was made. In my opinion, they
were entitled to such an opportunity....
Returning to the facts of the present case, there
can, in my mind, be no doubt that among the
rights accruing to individual employees under the
collective agreement was the right, under article
2.03, to opt out of dues check off.
There can be further no doubt that Parliament,
by adopting the new text of section 162, which
came into force July 18, 1984, has decided that it
is not in the public interest that employees should
be able to opt out of dues check off. A union need
now only request a "Rand formula" clause to be
entitled to get it. Outside the internal politics of
the union's conduct of its own affairs, an individu
al employee has no status to contest the union's
right to require a check off clause. A fortiori, if an
individual is not a member of the union, there is no
forum, domestic or otherwise, in which he may
object.
The issue before the Board, therefore, was plain
ly as to the date on which this important change in
the rights of individual employees, a change, I
repeat, that was decreed in the public interest,
should take effect. The Board well understood this.
At an early stage in the decision, it said:
In this case, it is the rights of the employees to revoke automat
ic check-off of union dues deductions that is at the core of the
employer's position regarding the effect of the proclamation of
section 162 of the Code on July 18, 1984.
I should say as well (and this disposes of many
of the arguments that were urged before us) that
the issue was a real one, that it arose fairly in the
context of the Board's hearing of the union's com
plaint under section 184, that the Board had juris
diction to enter upon the question and that the text
of the new version of section 162 is one which
would support a rational and bona fide decision in
either sense. I, for one, would not have the temeri
ty to suggest that a decision one way or the other
is so patently unreasonable as to amount
... to a fraud on the law or a deliberate refusal to comply with
it. 6
Thus there are two equally legitimate but dia
metrically opposed possible interpretations of the
effect of the new section 162. It was the Board's
duty to pick between them. Clearly the union had
an interest in promoting the interpretation which
would have the new text apply to existing collec
tive agreements. Who has an interest in promoting
the opposite view? Surely not the employer. His
only conceivable interest in opposing compulsory
check off would be a desire to keep the party
whom he must face across the collective bargain
ing table in a state of financial weakness and
insecurity. If that was ever a legitimate interest, it
surely can no longer be so in the face of Parlia-
6 Syndicat des employés de production du Québec et de
l'Acadie v. Canada Labour Relations Board et al., [1984] 2
S.C.R. 412, per Beetz J., at p. 420; (1985), 55 N.R. 321.
ment's clear statement of its view of the public
interest.
The situation is different, however, for the
employee who has exercised the option given to
him under a valid collective agreement to revoke
his dues check off. He surely has a vested right not
to have his dues checked off. That right, to be
sure, may be taken away by legislation but it
seems to me impossible to deny him a legitimate
interest in urging that the legislation is invalid or
does not have the effect contended for by the
union.
It will be recalled that, in the present case, the
Board was dealing not only with the obligation to
pay union dues in the future but with the retroac
tive application of the Rand formula to wages
already paid. It was a necessary consequence of
the union's position that the employees were
obliged to reach into their pockets to pay out sums
of money which had not been deducted at source.
In those circumstances, it seems to me to be
beyond dispute that the interests of the union and
those of the dissenting employees were directly
opposed to one another.
To say that if the union and the employer had
been ad idem on the proper interpretation of sec
tion 162 they could together have executed an
amendment to the collective agreement which
would have the same result as the Board's order is
nothing to the point. The two have not so agreed
and the argument, in any event, begs the question
as to the extent to which the union may affect the
vested rights of individual employees during the
currency of a collective agreement.
I conclude that the Board ought to have given
notice to the employees prior to embarking on its
enquiry.' Since the failure to give such notice was
never waived and the resulting decision never rati-
' I would not, with respect, want to be taken as approving all
that was said by Laskin J.A., as he then was, by way of obiter
in the Bradley case, supra, with regard to the manner of giving
notice. In particular, I do not think notice by personal service or
registered mail is necessary. Section 13 of the Canada Labour
Relations Board Regulations, 1978, (SOR/78-499), contains
detailed rules permitting the posting of notices which would
seem to me to be quite adequate to meet the requirements of
the situation in this case.
fied by the affected employees, it follows that such
decision must be set aside.
I would allow the section 28 application, set
aside the decision under attack and return the
matter to the Board for a new hearing and decision
after proper notice to all interested parties.
HEALD J.: I concur.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.