Judgments

Decision Information

Decision Content

A-338-91
Canadian Broadcasting Corporation (Applicant) v.
Canada Labour Relations Board, Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk (Respondents)
INDEXED AS: CANADIAN BROADCASTING CORP. V. CANADA (LABOUR RELATIONS BOARD) (CA.)
Court of Appeal, Pratte, Desjardins and Décary JJA. —Montréal, April 1; Ottawa, May 7, 1992.
Labour relations Application to review and set aside CLRB decision CBC violated Canada Labour Code, s. 94(1)(a) in requiring host of national public affairs radio show to resign either as host or as union president after writing article for union publication criticizing Free Trade Agreement then being negotiated CBC's Journalistic Policy requiring employees to avoid publicly identifying themselves with partisan state ments on controversial matters CLRB finding CBC commit ting unfair labour practice contrary to Canada Labour Code, s. 94(/)(a) - Within Board's jurisdiction to consider whether CBC had committed unfair labour practice As prima facie interference with administration of trade union, burden on CBC to show compelling business reasons warranting action Compliance with Journalistic Policy not condition imposed by CRTC for licence Board's decision violation of Journal istic Policy not justifying CBC's action within its jurisdiction and not patently unreasonable.
This was an application to review and set aside a decision of the Canada Labour Relations Board that the CBC had violated Canada Labour Code, paragraph 94(1)(a) when it unlawfully coerced Dale Goldhawk, a CBC broadcast journalist, into resigning his position as president of the respondent union. ACTRA (the union) was a strong opponent of the Free Trade Agreement between Canada and the U.S.A. In 1988, in his capacity as ACTRA president, Goldhawk wrote an article for the union's official publication, which is distributed to mem bers, attacking the Free Trade Agreement then being negoti ated. Canada was in the midst of a general election in which free trade was a central issue. During that same period, Goldhawk hosted a national public affairs radio program on which the free trade issue was regularly discussed. The CBC became concerned that Goldhawk's article and public involve ment as ACTRA president was contrary to its Journalistic Pol icy, which requires that its employees avoid publicly identify-
ing themselves with partisan statements on controversial matters. It required him to resign either as president of ACTRA or as host of the radio show. ACTRA filed a complaint against the CBC, alleging that it had unlawfully interfered with the administration of a union contrary to Canada Labour Code, paragraph 94(1)(a). The CBC argued that because of its man date under the Broadcasting Act (to provide a national broad casting service which makes available a reasonable, balanced opportunity for the expression of differing views on matters of public concern) certain conditions had to be followed to reflect the CBC's policy of impartiality.
The Board found the CBC in violation of paragraph 94(1)(a), holding that that paragraph called for an objective test concerned with the effect of the employer's actions on the legitimate rights of employees or their unions. It found that Goldhawk had engaged in lawful union activity, and held that the CBC did not have compelling business reasons to require him to resign from union office. It had not tried to reconcile its own legitimate business concerns with its employees' statutory union rights and failed to show any convincing causal relation ship between Goldhawk's holding office in ACTRA and the CBC's image of impartiality. The applicant argued that the Board had exceeded its jurisdiction by applying the unfair labour practice provisions of the Code to protect partisan polit ical activities by ACTRA which were wholly divorced from the collective bargaining process, by wrongly interpreting the Broadcasting Act under which the Journalistic Policy was established, by wrongly interpreting its Journalistic Policy, and by giving an unreasonable interpretation to subsection 94(l) in finding that the applicant's requirement of public political neu trality on the part of its journalists was interference with the administration of a union.
Held, the application should be dismissed.
Per Desjardins J.A. (Pratte and Décary JJ.A. concurring): The Board acted within its jurisdiction when it considered whether the applicant had engaged in unlawful union activities. CBC's actions were prima facie interference with the adminis tration of a trade union within paragraph 94(1)(a). The burden therefore rested on the CBC to show compelling business rea sons warranting its action.
It was unclear whether the CBC's Journalistic Policy was mandated by the Broadcasting Act. The CRTC has never made compliance with the Journalistic Policy a condition for the granting of the renewal of CBC's licence. The Journalistic Pol-
icy merely reflects a management directive by the applicant to its employees in an effort to comply with its special mandate.
The test applied by the Board required that a close causal relationship between the employer's reason and action be established. The Board found that the violation of Journalistic Policy did not justify the CBC's action. The Court should not interfere with that decision, which was within the Board's jurisdiction and was not patently unreasonable.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Broadcasting Act, R.S.C., 1985, c. B-9, ss. 3(d), 30(1). Canada Labour Code, R.S.C., 1985, c. L-2, ss. 94(1)(a),(3)(a)(i),(b),(e), 96.
Free Trade Agreement between Canada and the United States of America, being Schedule, Part A of Canada— United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65.
CASES JUDICIALLY CONSIDERED
DISTINIGUISHED:
United Steelworkers of America v. The Adams Mine, Cliffs of Canada Ltd., Manager (1982), 83 CLLC 16,011; 1 C.L.R.B.R. (N.S.) 384; [1982] O.L.R.B. Rep. 1767; Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266; (1990), 74 D.L.R. (4th) 674; 90 CLLC 14,045; 116 N.R. 161 (C.A.); Quan v. Canada (Treasury Board), [1990] 2 F.C. 191; (1990), 90 CLLC 14,006; 107 N.R. 147 (C.A.).
CONSIDERED:
Decision CRTC 79-320: Renewal of the Canadian Broad casting Corporation's Television and Radio Network Licences, April 30, 1979 (CRTC).
APPLICATION to set aside Canada Labour Rela tions Board decision that CBC violated paragraph 94(1)(a) of the Canada Labour Code. Application dismissed.
COUNSEL:
Roy L. Heenan and Thomas Brady for applicant.
H. Scott Fairley and Johanne Tremblay for respondent Canada Labour Relations Board. Paul J. Falzone for respondents Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk.
SOLICITORS:
Heenan, Blaikie, Montréal, for applicant.
Lang, Michener, Lawrence & Shaw, Toronto, for respondent Canada Labour Relations Board.
Pollit, Arnold, MacLean, Toronto, for respon dents Alliance of Canadian Cinema, Television and Radio Artists and Dale Goldhawk.
The following are the reasons for judgment ren dered in English by
DESJARDINS J.A.: The applicant, the Canadian Broadcasting Corporation (the "CBC"), seeks to have reviewed and set aside a decision of the Canada Labour Relations Board, dated December 20, 1990, in which the Board concluded that the CBC violated paragraph 94(1)(a) of the Canada Labour Codel (the "Code") when it unlawfully coerced Mr. Dale Goldhawk, â broadcast journalist of long-standing with the CBC, into resigning his position as president of the respondent union.
Alliance of Canadian Cinema, Television and Radio Artists ("ACTRA"), is a major union organiza tion involved with the scenic arts in English Canada. It is a strong advocate of the Canadian content rule for broadcasters and was a strong opponent of the Free Trade Agreement [between Canada and the United States of America, being Schedule, Part A of the Canada—United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65.] ("FTA") with the U.S.A. Under its by-laws, the president is the official spokesperson of the policies pursued by the union.
In the late summer of 1988, in his capacity as ACTRA president, Mr. Dale Goldhawk wrote an arti cle in the fall issue of the union's official publication ACTRASCOPE which is generally distributed to its members. Under the heading "The President Reports", Mr. Goldhawk took a strong position against the Free Trade Agreement then being negoti ated with the U.S.A. His article, entitled "Election
R.S.C., 1985, c. L-2.
brings the trade debate to a boil", attacked the free trade deal and invited the membership to mount a campaign opposing the deal. The country was then in the middle of a general election where free trade was a central issue. During that same period, Mr. Goldhawk hosted "Cross Country Checkup" a public affairs radio program broadcasted weekly nationwide on the CBC English network where the free trade issue had been regularly discussed.
The existence of Mr. Goldhawk's article came to the attention of the public in early November 1988 in a column by Mr. Charles Lynch appearing in the Ottawa Citizen and in the Vancouver Province. According to Mr. Lynch's column, who described himself as a "disgruntled 30-year member of ACTRA", ACTRA had been campaigning since early 1988 to defeat the Free Trade Agreement and had "been deluging its members with literature urging leadership in the fight (against free trade)". Mr. Lynch commented on Mr. Goldhawk's position with the CBC and with ACTRA in the following way:
But in his role as ACTRA president, he is part of the battle, and it is my submission that the listening public is entitled to disclosure of that fact during the airing of his program and other programs with heavy input from ACTRA members.
He concluded that he opposed his union using his money, he said:
... to bolster the anti-free trade case, and urging us to use all our efforts and all our special access to the channels of,com- muttication .... That includes massive access to the CBC facilities as well as those of the other networks.
Mr. Lynch's article was first brought to the atten tion of Mr. Alex Frame, the area head of current affairs for CBC Radio, by a producer from a CBC affiliate who wished to prepare an item on the inci-
dent with Mr. Goldhawk. This, in turn, prompted a series of meetings between Mr. Goldhawk and CBC representatives to determine the appropriate course of action in the circumstances. The CBC was concerned that Mr. Goldhawk's article in ACTRASCOPE, and more generally his public involvement as chairman of ACTRA, were in violation of the CBC's Journalis tic Policy. Rather than making a decision on the mat ter right away, it was agreed, at Mr. Goldhawk's sug gestion, that Mr. Goldhawk would withdraw from "Cross Country Checkup" until after election day. Mr. Goldhawk simultaneously took leave from any public involvement as chairman of ACTRA for the remainder of the campaign.
The CBC knew that Mr. Goldhawk was the presi dent of ACTRA when they hired him. They did not, however, perceive it as being a problem at the time. Mr. Goldhawk was not the first union president hired as a host and it was only when he publicly identified himself with the controversial matter that the problem arose. The CBC was not concerned with the union taking a position on free trade, hut became concerned when a member of their journalistic unit became a spokesperson on that issue. 2 On November 22, 1988, Mr. Goldhawk, without the official approval of his union, told the CBC he was prepared to give up his duties as public spokesman of ACTRA and remain its president in order to accommodate the CBC. CBC turned down that offer. It considered that Mr. Goldhawk was personally identified with a highly controversial subject that would be associated with his holding of any office in ACTRA. To satisfy the requirements of the CBC's Journalistic Policy, the CBC felt that Mr. Goldhawk had to sever all ties with the management of the union if he were to resume his position as host of "Cross Country Checkup". He was given the following alternatives: keep his office in ACTRA or keep his job as host of his show, but not both. Mr. Goldhawk chose to consult first his union officials and fellow journalists and, on November 23, 1988, Mr. Goldhawk tendered his resignation as ACTRA's president. He was soon called back by the CBC as host of "Cross Country Checkup".
2 A.B., at p. 1329.
ACTRA later filed a complaint against the CBC alleging violations of paragraphs 94(1)(a), 94(3)(b), 94(3)(e), subparagraph 94(3)(a)(î) and section 96 of the Code.
The evidence before the Board
The CBC offered as a defence that, because of its unique mandate under the Broadcasting Act, 3 certain conditions, under which journalism was practised at the CBC, had to be followed so as to reflect CBC's long-standing policy of impartiality and safeguards against any risk of bias or perception of bias by the public. It referred to its Journalistic Policy, currently published in a 130-page manual, which states, inter alia, that the CBC program policy rests on certain premises which express the Corporation's philoso phy, 4 namely that (a) the air belongs to the people, who are entitled to hear the principal points of view on all questions of importance; (b) the air must not fall under the control of any individuals or groups influential because of their special position; (c) the full interchange of opinion is one of the principal safeguards of free institutions; (d) the Corporation maintains and exercises editorial authority, control
s R.S.C., 1985, c. B-9. S. 30(1) reads in part:
30. (1) The Corporation is established for the purpose of providing the national broadcasting service contemplated by section 3, in accordance with the conditions of any licence or licences issued to it by the Commission and subject to any applicable regulations of the Commission, and for that purpose the Corporation has power to .... [Emphasis added.]
S. 3(d) reads in part:
3....
(d) the programming provided by the Canadian broadcas ting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public con cern, and the programming provided by each broadcaster should be of high standard, using predominantly Cana- dian creative and other resources; [Emphasis added.]
Although that Act was repealed by S.C. 1991, c. 11, s. 89, it was the 1985 version that was in force at the time of the deci sion under review.
4 A.B., at p. 1335.
and responsibility for the content of all programs broadcast on its facilities; (e) the Corporation itself takes no editorial position in its programming.
In order to attain balance of fairness in the han dling of information programming, the Journalistic Policy states: 5
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 judi cious and fair manner. [Emphasis added by the Board.]
It requires that, in order to maintain their credibil ity, on-air personnel, as well as those who edit, pro duce or manage CBC programs, must avoid publicly identifying themselves in any way with partisan statements or actions on controversial matters.
The document adds: 6
In an open society, an essential attribute of a journalistic organization is that both it and its journalists be perceived as credible by the public. Credibility is dependent not only on qualities such as accuracy and fairness in reporting and presen tation, but also upon avoidance by both the organization and its journalists of associations or contacts which could reasonably give rise to perceptions of partiality. Any situations which could cause reasonable apprehension that a journalist or the organization is biased or under the influence of any pressure group, whether ideological, political, financial, social or cul tural, must be avoided.
In the engagement and assignment of persons working in information programs, the organization must be sensitive to their published views, their personal involvements and their associations and backgrounds in order to avoid any perception of bias or of susceptibility to undue influence in the execution of their professional responsibilities. [Emphasis added by the Board.]
The Board allowed the filing by the CBC of the testimony given before the CRTC in 1977, by Mr. Marc Thibault, then head of News for Radio-Canada.
5 A.B., at p. 1336.
6 A.B., at p. 1337.
Mr. Thibault's evidence was given in the context of the then upcoming Quebec referendum where the CBC was under fire before the CRTC for a perceived lack of impartiality and the weakness of its journalis tic standards. In his opinion, the Corporation, in its capacity as national broadcaster, was distinct from private broadcasting organizations in many respects. This uniqueness of the CBC was, in Mr. Thibault's view, vested in its governing statute. As Mr. Thibault explained:?
[TRANSLATION] Needless to say, a Corporation journalist is pro hibited from using the network, directly or indirectly, to pro mote his personal views or options. [Emphasis added by the Board.]
Mr. Thibault testified about Radio-Canada's long- standing policy and safeguards against any risk of bias or perception of bias by the public. He told the CRTC about past occurrences involving the policy against the perception of bias and concluded: 8
[TRANSLATION] ... our golden rule: the public perception that our colleagues are impartial was as important to us as the impartiality itself in carrying out their duties on our programs.
The Board heard also witnesses called by ACTRA to comment on journalistic policies and ethics.
The Board's decision
A majority of the Board found the applicant in vio lation of the unfair labour practice provision under paragraph 94(1)(a) of the Code. 9 The majority stated that, under paragraph 94(1)(a), it was not necessary to establish an anti-union animus or an intention to discriminate on the part of the employer. That provi sion called for an objective test first concerned with the effect of the employer's actions on the legitimate
7 A.B., at p. 1340.
A.B., at p. 1342.
9 94. (1) No employer or person acting on behalf of an
employer shall
(a) participate in or interfere with the formation or admi
nistration of a trade union or the representation of
employees by a trade union; ....
rights of employees or their unions. It did not, how ever, impose the burden of proof on the employer.
The majority found that Mr. Goldhawk was engaged in a lawful union activity contemplated by article 8 of the Code when, as president of his union, he wrote his article in ACTRASCOPE.
Two reasons were given.
Firstly, according to earlier decisions of the Board, declarations to the media by union officials were part of union administration and representation. That right, however, was not absolute and had to be exer cised within certain limits which depended on each factual situation. Mr. Goldhawk's article was pub lished in the union's newsletter and was aimed at a limited union readership. It seemed reasonable to assume that under the Code a union president could at least say to his troops, verbally or in writing, what he could say to the public at large." ) Moreover, Mr. Goldhawk's article was published in a union's paper aimed at its membership in a context where he was gathering support within the union for a position it had officially adopted. To find otherwise would imply that the Board was questioning the right of the union to take that position, in the first place, an argu ment that had not even been raised before them.t"
Secondly, relying on section 3 of "Convention No. 87 of the International Labour Organization concern ing Freedom of Association and Protection of the Right to Organize", referred to in the preamble of the Code, the majority concluded that, when a union finds that a government's economic policy such as free trade constitutes a threat or a benefit to its mem bership, an article on that subject appearing in a union publication was a lawful union activity under the Code. It stated: 1 2
10 A.B., at p. 1363.
11 A.B., at p. 1373.
12 A.B., at p. 1384.
For the majority, Mr. Goldhawk's article was related to the interests of the collectivity of the union and was neither reck less nor maliciously untrue so as to lose the Code's protection. To use the words of the International Labour Organization, it did not, exceed "the admissible limits of controversy," which necessarily means that union publications can be controversial.
The majority rejected the CBC's argument that its Journalistic Policy constituted a valid justification for the decision it took vis-à-vis Mr. Goldhawk. The majority recognized that CBC had a legitimate intent to protect its own integrity and impartiality through the implementation of a Journalistic Policy which it characterized as an internal code of behavior. 13 Yet, its particular application ought to be compatible with CBC's statutory obligations found in the Code. 14 The majority stated:l 5
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.
ACTRA, clearly has the right to freely designate who will act on its behalf. CBC's decision practically forced ACTRA to adjust its internal rules according to the Journalistic Policy and to reorganize its affairs. If the unit represented by ACTRA were only composed of on-air journalists, ACTRA would have simply been paralysed. In the instant case, even though ACTRA could operate otherwise, its very definite right to choose its leader was seriously curtailed by CBC's decision. 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 controver sial issue than before. In fact, it could be argued at least in the
13 A.B., at p. 1387.
14 A.B., at p. 1381.
15 A.B., at pp. 1382-1383.
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.
With regard to the effect of the applicant's deci sion, the majority further commented: 16
The effect of CBC's decision with respect to Mr. Goldhawk is to prevent in fact a CBC journalist from chairing ACTRA, insofar as the chairmanship would comprise the duty to act as union spokesperson. That latter responsibility is by definition likely to expose whoever holds i,t to engage or to become involved in controversies of all sorts. If compliance with the Journalistic Policy means never being involved publicly in matters of controversy even in an official union capacity, then it becomes all but impossible, with such a far reaching applica tion, to reconcile that policy with the basic freedom of unions to choose their officials and adopt their statutes and by-laws. With respect, this by itself constitutes a violation of the Code (Maritime Employers' Association, supra). The statutory right of an employer to organize its business cannot be so broadly interpreted as to allow such a direct infringement on the statu tory rights of employees to run their unions without interfer ence.
It added: 17
Failing clear statutory provisions to the contrary, we find CBC employees and their unions have the same rights under the Code as those enjoyed by employees of the other employers governed by the Code.
With respect to the competing legitimate interests to be balanced and the application of the balancing test, the majority stated: 18
Finally, after having considered all the evidence, we do not find that CBC had compelling business reasons to ask Mr. Goldhawk to resign from ACTRA as a condition precedent to his continuing to host "Cross Country Checkup". As shown by its past practice, CBC never considered the statutory rights conferred by the Code. In requiring Mr. Goldhawk's resigna tion from ACTRA, CBC did not try to reconcile its own legiti mate business concerns with its employees' own legitimate statutory union rights. Finally, CBC has failed to show any convincing causal relationship between Mr. Goldhawk's per sonally holding office in ACTRA after November 22, 1988, and the CBC's image of impartiality, given that ACTRA has not changed its position on free trade and is still the bargaining agent of some of CBC's journalists, including Mr. Goldhawk.
16 A.B., at p. 1385.
17 A.B., at p. 1386.
18 A.B., at pp. 1387-1388.
The dissenting member concluded otherwise. She in particular disagreed with the majority on the ques tion of what constituted interference with the activi ties of a trade union. She felt no such interference occurred. The protection afforded by the unfair prac tice provisions of the Code did not extend to all law ful activities of trade unions. In her view, the Board's mandate was derived exclusively from the Code and was restricted to matters involving the Code's collec tive agreement regime and the general relationship between a union, as exclusive bargaining agent for employees, and an employer. The free trade issue concerned the Government of Canada, the political parties and the electorate of Canada. 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. There fore, the activities of ACTRA or its officers, with respect to this political issue, did not enjoy the pro tection of the unfair practice provisions of the Code.
The applicant's submission
The applicant pleads that the Board has exceeded its jurisdiction by applying the unfair labour practice provisions of the Code to protect partisan political activities by ACTRA which were wholly divorced from the collective bargaining process; by wrongly interpreting or by failing to consider or apply the pro visions of the Broadcasting Act under which the Jour nalistic Policy was established; by wrongly interpret ing its Journalistic Policy which was an essential basis for its defence; and by giving an unreasonable interpretation to the provisions of subsection 94(1) of the Code in finding that the applicant's requirement of public political neutrality on the part of its journal ists was either participation in or interference with the formation or administration of a trade union.
In essence, the argument of the applicant is that its Journalistic Policy has been developed in order to fulfill its special mandate under subsection 30(1) of the Broadcasting Act and that, at each renewal of its licence, the CRTC reviews the performance of the CBC in the light of earlier recommendations. The Board failed to give effect to the applicant's statutory duties since it simply considered "management rights" alone as a possible basis for limitations on union activities. It wrongly qualified the Journalistic Policy as the mere corporate code of behavior aimed at helping the applicant to be perceived as an impar tial broadcaster. Moreover, says the applicant, the Code does not apply to all activities which a trade union may lawfully undertake, but only to those activities which relate to the organization of employ ees for collective bargaining with their employer and the negotiations and administration of collective agreements between employers and trade unions. The respondent Goldhawk violated the applicant's Jour nalistic Policy by taking a public partisan position on a controversial political matter which was wholly unrelated to any facets of collective bargaining between the applicant and the trade union of which he was president and official spokesperson. His parti san position was a matter manifestly beyond the scope of the Code. Both United Steelworkers of America v. The Adams Mine, Cliffs of Canada Ltd., Manager 19 and our decision in Almeida v. Canada (Treasury Board) 20 were cited in support of its posi tion.
Analysis
The Board was within its jurisdiction when it embarked on the question as to whether the applicant had engaged in unfair labour practice. 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 admin istration of a trade union within the meaning of para graph 94(1)(a) of the Canada Labour Code. That
19 (1982), 83 CLLC 16,011 (Ont. L.R.B.).
20 [1991] 1 F.C. 266 (C.A.).
being so, and pursuant to the test set by the Board in previous decisions, the burden rested on the CBC to show compelling and justifiable business reasons warranting its action in order to escape paragraph 94(1)(a).
The applicant claims it had no choice except to take the course of action it did on account of its spe cial mandate under the Broadcasting Act. While it is true that the CRTC did comment over the years on CBC's efforts to fulfill its mandate, and again in 1979, at the time of the renewal of the CBC's broad casting licence, 21 it is unclear whether the CBC's Journalistic Policy, as formulated, is mandated by the Broadcasting Act. Furthermore, the CRTC has never made the compliance with the Journalistic Policy a condition for the granting of the renewal of the CBC's licence. The most that can be said about the Journalistic Policy is that it reflects a management directive by the applicant to its employees in an effort to comply with its special mandate.
The test applied by the Board then requires that a close causal relationship between the employer's rea son 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 jus-
21 See "Decision CRTC 79-320: Renewal of the Canadian Broadcasting Corporation's Television and Radio Network Licences" Canadian Radio-television and Telecommunications Commission (April 30, 1979), at pp. 63-64:
SUMMARY OR RECOMMENDATIONS
Objectivity in News and Public Affairs Programming
The public must be able to expect, from its national radio and broadcasting services, a fair, full and objective discus sion of national and international events through a diversi fied news and public affairs program service. Further the public must be able to feel that it has access to, and is heard by, those who make and manage the programs of the CBC. The Commission recommends to the Corporation that it continue its efforts in this direction and strive further to improve its liaison with the Canadian public.
tify 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.
The two cases cited by , the applicant have no bear ing on the issue before us, which is one of a union president vis-à-vis his employer. The first, Almeida v. Canada (Treasury Board) 22 dealt with the nature of messages reproduced on buttons worn by employees on the employers' premises. That case and Quan v. Canada (Treasury Board), 23 commented on in Almeida, stand for the proposition that the nature of the message conveyed has a bearing on whether the wearing of such buttons are lawful activities pro tected under the Public Service Staff Relations Act [R.S.C., 1985, c. P-35]. The second, United Steel- workers of America v. The Adams Mine related to political activities engaged by union members on the employer's premises. The Ontario Labour Relations Board declined jurisdiction to hear an action by the union against the employer, which had prohibited canvassing on company property, because the Board was of the view that, in the circumstances of that case, the activities were too remotely connected, if at all, to the bargaining process. Both cases related to issues of jurisdiction under labour legislation. They involved no balancing of competing legitimate inter ests.
For all these reasons, I would dismiss this applica tion.
DÉCARY J.A.: I agree.
***
The following are the reasons for judgment ren dered in English by
PRATTE J.A.: I have had the privilege of reading the reasons for judgment prepared by my colleague Desjardins J.A. 'I agree with her conclusion.
22 [1991] 1 F.C. 266 (C.A.).
23 [1990] 2 F.C. 191 (C.A.).
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