A-493-86
Grain Workers' Union Local 333, C.L.C. (Appli-
cant)
v.
Prince Rupert Grain Ltd., Y. F. Simmons, R.
Alderdice, D. Bartko, D. Gamble, D. Shuttleworth
and B. J. Hyland (Respondents)
INDEXED AS: G. W. U. LOCAL 333 v. PRINCE RUPERT GRAIN
LTD.
•
Court of Appeal, Mahoney, Stone and Lacombe
JJ.—Vancouver, April 7; Ottawa, May 20, 1987.
Labour relations — Application to review and set aside
Canada Labour Relations Board decision excluding certain
positions from bargaining unit — Board finding transfer of
operations from old to new grain elevator terminal constituting
technological change, but reserving jurisdiction on exclusion
issue — Different quorum deciding exclusion issue —
Application dismissed — No breach of natural justice rule "he
who decides must hear" — Two hearings severable as dealing
with separate issues based on different evidence — Inference in
Labour Code s. 120.1, permitting Board to split issues arising
from application for purpose of separate adjudications, that
jurisdiction reserved to Board and not individual members of
quorum — Union objecting to constitution of quorum only
after adverse decision — Failure to object to quorum in timely
manner constituting waiver of right to have case decided by
same quorum — Canada Labour Code, R.S.C. 1970, c. L-1,
ss. 118(k) (as am. by S.C. 1972, c. 18, s. 1), (p)(ii),(v) (as am.
idem), 119 (as am. idem), 121 (as am. idem), 1 (as enacted by
S.C. 1977-78, c. 27, s. 42), 149 (as am. by S.C. 1972, c. 18, s.
1), 150 (as am. idem; S.C. 1984, c. 39, s. 29), 151 (as am. idem;
S.C. 1984, c. 39, s. 30).
Judicial review — Applications to review — Canada
Labour Relations Board deciding issue of technological
change, but reserving jurisdiction on exclusion of members
from bargaining unit — Different quorum hearing exclusion
issue — No breach of natural justice rule "he who decides
must hear" — Inference from Code, s. 120.1 that different
quorum may hear remaining issue in special circumstances —
Union objecting to constitution of quorum only after adverse
decision — Failure to object to quorum before Board giving
rise to inference parties treating proceedings as separate and
constituting waiver of right to same quorum — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Canada Labour
Code, R.S.C. 1970, c. L-1, s. 120.1 (as enacted by S.C.
1977-78, c. 27, s. 42).
This is an application to review and set aside a Canada
Labour Relations Board decision excluding certain positions
from a bargaining unit. In 1984, the Board had held that the
commencement of operations at a new grain elevator terminal
would constitute a technological change. It reserved jurisdiction
on the potential exclusion from the bargaining unit of certain
employees who would be employed at the new terminal. In
1986, the Union applied for a determination of the exclusion
issue, and other matters which the Board held were outside the
jurisdiction flowing from its previous decision. Prior to the
hearing, the parties were informed of the composition of the
quorum that would hear the matter. One member of the Board
was new. The parties were afforded full opportunity to call
evidence on the question of inclusion or exclusion. The Union
seeks to set aside the Board's order on the ground that it
exceeded its jurisdiction and failed to observe a principle of
natural justice in changing the composition of the quorum of
the Board which had retained jurisdiction. The applicant relied
on the rule of natural justice "he who decides must hear."
Held, the application should be dismissed.
The hearings conducted by the Board in 1984 and 1986 are
completely severable since it dealt with two separate issues, on
evidence and submissions which differed completely from one
hearing to the other. The 1986 reasons for the order contain no
indication that, in reaching their decision, the members of the
quorum relied on, or even considered, any evidence that was not
adduced at the 1986 hearing or that they were influenced in
any way by what was said or done at the 1984 hearing. The
parties fought the issue of inclusions or exclusions from the
bargaining unit strictly on fresh submissions. All three mem
bers of the quorum heard all the pertinent evidence. The
requirements of the rule "he who decides must hear" had been
observed.
Section 120.1 of the Labour Code authorizes the Board to
split the issues arising from an application for the purpose of
separate adjudications thereon. Although there usually would
be no alteration of the quorum, there may be special circum
stances permitting a remaining issue to be decided by a differ
ent quorum without regard to the evidence and representations
which were made for the resolution of the initial issue. Section
120.1 provides that the Board may "reserve its jurisdiction to
dispose of the remaining issues." The jurisdiction is thus
reserved to the Board itself, and not to the individual members
of the quorum that made the initial decision.
In any case, the applicant cannot now complain about the
composition of the quorum when no objection was taken before
the Board. It can be inferred from the failure to object to the
constitution of the quorum either before, at the commencement
of, or during the hearing that the parties had decided to treat
the two hearings as separate proceedings, and had concluded
that the members would not have to refer to any evidence
adduced during the first hearing to decide the issue. It was only
after an adverse decision had been rendered that the Union
raised this issue. That was an unacceptable position. While the
Union did not waive its right to have its case decided in
conformity with the "he who hears must decide" rule, it had
waived its right to have its case decided by the same quorum in
failing to object in a timely manner.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ex Parte Pratt (1884), 12 Q.B.D. 334 (C.A.); Doyle v.
Restrictive Trade Practices Commission, [1985] 1 F.C.
362 (C.A.).
REFERRED TO:
The King v. Huntingdon Confirming Authority. Ex parte
George and Stamford Hotels, Ld., [1929] 1 K. B. 698
(C.A.); Merh v. Law Society of Upper Canada, [1955]
S.C.R. 344; Re Ramm and The Public Accountants
Council for The Province of Ontario, [1957] O.R. 217
(C.A.).
COUNSEL:
James E. Dorsey for applicant.
R. Alan Francis and E. J. Harris for Prince
Rupert Grain Ltd.
Peter R. Sheen for Canada Labour Relations
Board.
SOLICITORS:
Braidwood, MacKenzie, Brewer & Greyell,
Vancouver, for applicant.
Campney & Murphy, Vancouver, for Prince
Rupert Grain Ltd.
Russell & DuMoulin, Vancouver, for Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
LACOMBE J.: This is a section 28 [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10]
application to review and set aside a decision and
order of the Canada Labour Relations Board (the
Board), dated July 21, 1986, excluding certain
positions from the bargaining unit for which the
applicant (the Union) was the certified bargaining
agent. The main issue raised in the present
application is whether the same quorum of the
Board must hear and determine any matter on
which it has previously reserved jurisdiction.
By order of the Board dated April 29, 1980, the
Union had been certified as the bargaining agent
for "all employees employed by the employer at its
Prince Rupert elevator excluding foremen, plant
superintendent, office manager and those above."
The employer was then operating a grain eleva
tor (colloquially known as PRG1) in Prince
Rupert, British Columbia. It decided to build a
new "state of the art" fully computerized grain
elevator terminal on nearby Ridley Island, to be
operational by the year 1985; this implied the
concomittant closing of the old PRG1 elevator in
Prince Rupert, massive lay-offs of personnel at
that location and a sizeable reduction in the labour
force needed to operate the new terminal facilities
at Ridley Island (referred to as PRG2).
On December 12, 1984, after a public hearing
held on November 26 and 27, 1984, the Board, on
the Union's application filed on August 16, 1984,
held inter alia that the commencement of opera
tions at the new PRG2 would constitute a techno
logical change within the meaning of sections 149,
150 and 151 of the Canada Labour Code (PART V
- INDUSTRIAL RELATIONS), R.S.C. 1970, C. L-1,
as amended [S.C. 1972, c. 18, s. 1; S.C. 1984, c.
39, ss. 29, 30], and determined that the Union's
certification for employees at PRG1 extended to
employees at the new PRG2 terminal. It also
amended the certification order to reflect the
change in the corporate name of the employer,
which issue was no longer in contention when the
hearing commenced. However, it reserved jurisdic
tion on the potential exclusion from the bargaining
unit of certain employees who would be employed
at the new terminal, in case the parties were
unable to resolve this issue through negotiations.
The passage of the Board's decision reserving
jurisdiction reads as follows:
One last issue need be resolved and that issue relates to the
claimed exclusions by the employer from the bargaining unit of
employees at PRG 2. It was suggested to the Board by the
employer that the parties wait a period of six months before
determining the question of inclusions and exclusions regarding
the employees who will be working at PRG 2. The Board does
not intend at this time, on the basis of the evidence it has before
it, to make any decisions regarding the question of exclusions
and inclusions. It is, we feel, a matter that initially should be
addressed directly by the parties. The Board will remain seized
of the matter to the extent that a further modification to the
certification order may be required to formalize the structure of
the bargaining unit. We will await the submissions of the
parties in this regard.
On February 10, 1986, the Union applied to the
Board for a determination of the issue on which it
has reserved jurisdiction and some other matters
still outstanding between the parties and arising
out of the technological change. After receiving
the employer's submissions in reply, the Board
advised the parties by letter, on March 20, 1986,
as follows:
The Board has considered the submissions of the parties and
has determined that its jurisdiction flowing from Board Deci
sion 491 issued 12th day of December 1984 is limited to dealing
with the question of inclusions in and exclusions from the
bargaining unit. Any new issue the parties may wish to bring
before the Board would have to be done by means of a new
application.
Prior to the hearing, the Board sought and
received submissions from the employees affected
by their eventual inclusion in or exclusion from the
bargaining unit, who became intervenors in the
proceeding. It received additional submissions
from the parties. It appointed, pursuant to para
graph 118(k) [as am. by S.C. 1972, c. 18, s. 1] of
the Canada Labour Code, a Labour Relations
Officer to investigate and report on the parties'
contentions.
Some five days prior to the hearing, the parties
were informed by the Board of the composition of
the quorum that would hear the matter.
At the public hearing held on July 8 and 9,
1986, the Board followed its usual practice of
imposing on the employer the onus of proving the
exclusion of the disputed positions. It afforded the
parties full opportunity to call whatever evidence
they wished to tender on the question of inclusion
or exclusion of employees from the bargaining
unit. The Board also conducted a view of part of
the installations at the new terminal PRG 2.
On July 21, 1986, the Board issued its unani
mous decision, excluding from the bargaining unit
and as advocated by the employer, the positions of
Terminal Secretary, Operation Foremen and Pro
cess Systems Supervisor, and it amended the cer
tification order accordingly.
By its application made pursuant to paragraph
28(1)(a) of the Federal Court Act, the Union
seeks to set aside the last-mentioned decision and
order of the Board, on the ground that it acted
beyond its jurisdiction and failed to observe a
principle of natural justice in changing the compo
sition of the quorum of the Board, which had
retained jurisdiction, on December 12, 1984, to
review the Union's certification authority over cer
tain categories of employees. The quorum of the
Board was then composed of Vice-Chairman
Keller and Members Gannon and Parent; for the
1986 hearing, Vice-Chairman Brault replaced
Member Parent on the panel.
Counsel for the applicant invoked the rule of
natural justice "he who decides must hear." In his
submission, the question of inclusion or exclusion
of employees had to be heard by the same quorum
of the Board that decided to remain seized of this
issue. Counsel further submitted that, the hearing
of July 8 and 9, 1986 being a continuation of the
proceeding commenced in August 1984, Vice-
Chairman Brault could not be said, in law, to have
heard, and did not in fact hear, all of the evidence
which led to the impugned decision. In any event,
said counsel, there was a breach of natural justice
since the new member of the quorum did not have
the benefit of the additional background knowl
edge on the issue he had to decide, which the
others had acquired as a result of their participa
tion in the earlier proceeding.
In my view, the latter submissions rest on mere
assumptions, which are not supported by the
record and involve, in addition, a misconception of
the rule "he who decides must hear".
The record clearly shows that the hearings con
ducted by the Board in 1984 and in 1986 are
completely severable since, on these two occasions,
it dealt with and disposed of two separate issues,
on evidence and submissions which differed totally
from one hearing to the other.
In 1984, the Board exercised the jurisdiction
conferred by section 151 [as am. by S.C. 1972, c.
18, s. 1; S.C. 1984, c. 39, s. 30]' of the Canada
Labour Code and held that the transfer of the
employer's operations from the old to the new
terminal facilities would constitute a technological
change. That issue was spent as a result of the
Board's decision of December 12, 1984.
' 151. (1) Where a bargaining agent alleges that
(a) sections 150, 152 and 153 apply to an employer in
respect of an alleged technological change, and
(b) the employer has failed to comply with section 150,
the bargaining agent may, not later than thirty days after the
bargaining agent became aware, or in the opinion of the Board
ought to have become aware, of the failure of the employer to
comply with section 150, apply to the Board for an order
determining the matters so alleged.
(2) Upon receipt of an application for an order determining
the matters alleged under subsection (1) and after affording an
opportunity for the parties to be heard, the Board may, by
order,
(a) determine that sections 150, 152 and 153 do not apply
to the employer in respect of the alleged technological
change; or
(b) determine that sections 150, 152 and 153 apply to the
employer in respect of the alleged technological change and
that the employer has failed to comply with section 150 in
respect of the technological change.
(3) The Board may, in any order made under paragraph
(2)(b), or by order made after consultation with the parties
pending the making of any order under subsection (2),
(a) direct the employer not to proceed with the technologi
cal change or alleged technological change for such period,
not in excess of one hundred and twenty days, as the Board
considers appropriate;
(b) require the reinstatement of any employee displaced by
the employer as a result of the technological change; and
(c) where an employee is reinstated pursuant to paragraph
(b), require the employer to reimburse the employee for any
(Continued on next page)
In the 1986 proceeding, pursuant to paragraphs
118(p)(ii) and (v) and sections 119 [as am. by
S.C. 1972, c. 18, s. 1] and 121 [as am. idem] 2 of
the Canada Labour Code, the Board was called
upon to decide whether certain individuals working
at the new PRG2 terminal were employees and
could appropriately be included in the bargaining
unit, as claimed by the Union in its February 10,
1986 application and subsequent submissions.
That issue was gone into by the parties and by the
Board only during the course of the 1986
proceeding.
The reasons for the order of the Board, dated
July 21, 1986, contain no indication whatever that,
in reaching their decision, the members of the
quorum relied on or even considered any evidence
that was not adduced at the hearing held on July 8
(Continued from previous page)
loss of pay suffered by the employee as a result of his
displacement.
(4) An order of the Board made under paragraph (2)(b) in
respect of an employer is deemed to be a notice of technological
change given by the employer pursuant to section 150 and the
Board shall concurrently, by order, grant leave to the bargain
ing agent to serve on the employer a notice to commence
collective bargaining for the purpose referred to in subsection
152(1).
2 118. The Board has, in relation to any proceeding before
it, power
(p) to decide for all purposes of this Part any question that
may arise in the proceeding, including, without restricting
the generality of the foregoing, any question as to whether
(ii) a person performs management functions or is
employed in a confidential capacity in matters relating to
industrial relations,
(v) a group of employees is a unit appropriate for collective
bargaining,
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
121. The Board shall exercise such powers and perform
such duties as are conferred or imposed upon it by, or as may
be incidental to the attainment of the objects of, this Part
including, without restricting the generality of the foregoing,
the making of orders requiring compliance with the provisions
of this Part, with any regulation made under this Part or with
any decision made in respect of a matter before the Board.
and 9, 1986, or that they were influenced in any
way by what was said and done at the previous
1984 hearing. Before this Court, counsel for the
applicant failed to establish that the evidentiary
basis for the Board's order and decision has been
secured, even in part, elsewhere or otherwise than
during the course of the 1986 hearing. On the
contrary, it appears from the record that the par
ties fought the issue of inclusions or exclusions
from the bargaining unit strictly on fresh submis
sions and new evidence, which were complete and
sufficient in themselves to lead the Board to its
decision.
On the material submitted to the Court, the
conclusion is inescapable that all three members of
the quorum heard all the pertinent evidence and
representations which were necessary to dispose of
the issue they were called upon to decide. It fol
lows that the requirements of the rule "he who
decides must hear" have been observed in fact by
the panel of the Board that conducted the 1986
hearing.'
However, the Board decided in December 1984
to remain seized of the issue, which was the
subject-matter of its subsequent decision and
order. In his main submission, counsel for the
applicant argued that since Vice-Chairman Brault
was not a member of that quorum, he, as a conse
quence, cannot be held to have heard all the
evidence leading up to the decision in which he
participated. I am of the opinion that this submis
sion cannot be accepted in view of the particular
circumstances under which jurisdiction has been
reserved and has been exercised in the present
case, despite the existence of the rule that a matter
of which a Court or a tribunal has remained seized
must be adjudged by the same member or mem
bers of the Court or tribunal that has decided to
reserve jurisdiction.
The King v. Huntingdon Confirming Authority. Ex parte
George and Stamford Hotels, Ld., [1929] 1 K. B. 698 (C.A.);
Merh v. Law Society of Upper Canada, [1955] S.C.R. 344; Re
Ramm and The Public Accountants Council for The Province
of Ontario, [1957] O.R. 217 (C.A.); Doyle v. Restrictive Trade
Practices Commission, [1985] 1 F.C. 362 (C.A.).
Counsel for the Board submitted that section
120.1 [as enacted by S.C. 1977-78, c. 27, s. 42] 4 of
the Canada Labour Code confers on the Board
statutory authority, in a case involving multiple
issues, to have any of these issues decided by
different quorums, subject only to being satisfied
that the rights of the parties will not thereby be
prejudiced. On its face, the section does not explic
itly say that; it authorizes the Board to split the
issues arising from an application or complaint for
the purpose of separate adjudications thereon. In
most, if not practically all cases contemplated by
this provision, sheer common sense if not natural
justice would dictate that there be no alteration of
the quorum to hear the remaining issues on which
the Board has reserved jurisdiction. This will
obtain, for example, where all the issues arising
from an application or complaint are inextricably
linked together or where the remaining issues
stand to be decided on the same evidence as for the
issue already disposed of or on additional evidence
or upon further argument or supplementary
investigation.
There may be special circumstances permitting
a remaining issue to be disposed of by a differently
constituted quorum where, for example, it is of
such a nature that it can be decided without
regard to the evidence and representations which
were made for the resolution of the initial issue. It
may be inferred from the wording of section 120.1
of the Canada Labour Code that, in such circum
stances, the remaining issue may be assigned for
decision to a different quorum. The section specifi
cally provides that the Board may "reserve its
jurisdiction to dispose of the remaining issues".
[Emphasis added.] The jurisdiction is thus
^ 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 proceedings, 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 determi
nation and a declaration.
reserved to the Board itself, qua Board, and not to
the individual members of the quorum that made
the initial decision. However, it is not necessary to
come to a definite conclusion on this point since, in
my view, the applicant cannot complain in this
Court about the composition of the quorum he did
not object to before the Board.
The exact circumstances under which the issue
of inclusions or exclusions of employees actually
arose do not clearly appear from the passage of the
Board's decision reserving jurisdiction. It did not
stem from the Union's application of August 19,
1984 for a determination of the issue of technolog
ical change. It was raised by the employer during
the course of that hearing. The Board ruled that
"on the basis of the evidence it has before it", it
did not intend at the time to make any decision
thereon. This could mean that there was some
evidence or none at all on the subject-matter.
However, since the Board felt that this was "a
matter that initially should be addressed directly
by the parties" (emphasis added), and since the
Union did not even attempt to show before this
Court that the Board actually received any evi
dence on this topic, this would indicate that none
was tendered by the parties before the Board at
that time. In any event, the parties knew whether
and to what extent any evidence tendered at the
first hearing, if, in fact, some had been made,
would be necessary to permit a proper resolution
of the issue on which the Board had reserved
jurisdiction.
It must be recalled that the parties were advised
by the Board, prior to the hearing, that Messrs.
Keller, Brault and Gannon, and not Messrs.
Keller, Gannon and Mrs. Parent, would hear the
matter of which the Board had remained seized.
The parties and, in particular, the applicant Union
did not object to the constitution of the quorum,
either before, at the commencement of or during
the hearing. It can be inferred from such conduct
that the parties themselves had decided to treat the
two hearings as separate proceedings altogether
and had concluded that the members of the
quorum would not have to refer at all to any
evidence adduced or to anything done during the
first hearing, in deciding the issue they were called
upon to determine. In the mind of the Union, the
fact that Vice-Chairman Brault had not par
ticipated in the earlier decision of the Board
reserving jurisdiction was irrelevant at that time
and would not prevent him from doing full justice
to its case. It is only after an adverse decision had
been rendered that the Union raised this issue as
going to the jurisdiction of the Board. This is an
unacceptable position.
In Ex Parte Pratt (1884), 12 Q.B.D. 334
(C.A.), Bowen L.J. said, at page 341:
There is a good old-fashioned rule that no one has a right so to
conduct himself before a tribunal as if he accepted its jurisdic
tion, and then afterwards, when he finds that it has decided
against him, to turn round and say, "You have no jurisdiction."
You ought not to lead a tribunal to exercise jurisdiction
wrongfully.
In Doyle v. Restrictive Trade Practices Com
mission, [1985] 1 F.C. 362 (C.A.), the Commis
sion conducted hearings into the affairs of Mr.
Doyle who, while absent himself, was represented
by counsel. They withdrew after awhile. Some
members of the Commission were absent for all or
part of the hearings. A majority of this Court set
aside the report issued by the Commission against
Mr. Doyle. Pratte J. held, at page 368, that the
rule "he who decides must hear" is not only "a
corollary of the audi alteram partem rule" but
"actually affects the judge's jurisdiction" with the
result that a party may, by his conduct, waive the
right to be heard, but "does not, however, waive
the right to be judged by a judge who has heard
the evidence."
Applying this principle to the case at bar, I
would hold that the applicant, assuming but not
deciding that it had such right, waived its right to
have its case decided by the same quorum of the
Board that had reserved jurisdiction, by not object
ing in a timely manner to the presence of Vice-
Chairman Brault on the panel. It did not, of
course, waive or lose its right to have its case
decided in conformity with the rule "he who
decides must hear." If one member of the quorum
had been absent at any sitting of the Board where
the case was being heard or considered or if the
Board had rested its decision on evidence that was
not adduced at the hearing but was tendered at the
previous hearing, it is obvious that such a breach
of the rule would have been amenable to judicial
review in this Court.
For these reasons, this section 28 application
should be dismissed.
MAHONEY J.: I agree.
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.