Supreme Court of Canada
Association Internationale des Commis du Détail FAT-CIO-CTC, local 486 (Union des Commis du Détail) v. Commission des Relations de Travail du Québec et al., [1971] S.C.R. 1043
Date: 1971-04-27
Association internationale des commis du détail FAT—CIO—CTC, local 486, (Union des commis du détail)—(maintenant: Union des employés de commerce, local 500) Appellant;
and
Commission des Relations de Travail du Québec Respondent.
and
Ludovic Laperrière et la Cie Paquet Inc. Mis-en-cause.
1971: February 11; 1971: April 27.
Present: Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Labour relations—Certification—Petition for the employees as a whole—Employees divided into three groups—Certification due for two groups—Question of procedure or of law—Labour Code, R.S.Q. 1964, c. 141, ss. 20, 22, 28, 115, 116.
The appellant submitted a petition for certification as representative of the employees of the company, the mise-en-cause. The Board, having found that the appellant had met all the conditions prescribed for entitlement to certification as representative of two of the three groups into which it decided to divide the company’s employees, denied any certification solely because the appellant’s petition claimed certification for the employees as a whole. The appellant applied to the Superior Court for an order or mandamus requiring the Board to perform its duty of granting certification. A peremptory order was granted, but this judgment was reversed by a majority decision of the Court of Appeal. The Association appealed to this Court.
Held: The appeal should be allowed.
The Board refused to grant what its decision implies the appellant was entitled to. This is not a procedural question, it is undoubtedly a question of law when it is considered decisive on the merits. The Board had, under the provisions of the Labour Code, the authority to grant certification for a por-
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tion of the employees covered by the petition, and this was expressly requested at the hearing.
Argument in support of the decision of the Court of Appeal cannot be based on ss. 115 and 116 of the Code. In this instance, the Board has not prescribed an act or formality: it has decided without doing so. Further, a regulation respecting the form of petitions could not be applied to petitions already received and validly made, so as to invalidate them.
The Board has refused to exercise its jurisdiction by failing to comply with an essential requirement for the exercise of its jurisdiction. The Board has the duty to grant certification when it finds that the prescribed conditions for it have been met.
It is wrong to contend that the decision of the Board ensured that the wishes of the employees to be represented as a single group, were respected. Under the Code, certification is requested not by the group of employees but by the association, which may have much wider membership. Similarly, the resolution accompanying the petition is not that of the group, but of the association.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of Chief Justice Dorion. Appeal allowed.
Philip Cutler, Q.C., and Pierre Langlois, for the appellant.
Maurice Jacques, Q.C., for the respondent.
Guy Letarte, for the mise-en-cause.
The judgment of the Court was delivered by
PIGEON J.—La Cie Paquet Inc., the mise-en-cause, has business premises at four locations in Quebec City and suburbs: two retail stores on St. Joseph Street and at Place Laurier, and two warehouses on Charest Boulevard and Dorchester Street. On September 8, 1964, the appellant Association submitted to respondent, the Quebec Labour Relations Board, a petition for certification as representative of a group made up of all employees of the Company at the aforementioned locations except those holding certain positions
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listed in the petition. This application was opposed, and, nearly four years later, on June 3, 1968, the Board stated:
[TRANSLATION] Appellant has met… all the conditions prescribed by the Code and Regulations for entitlement to certification, at least in respect of the store on St. Joseph Street in Quebec City, and in respect of the employees at the warehouses on Charest Boulevard and Dorchester Boulevard. However, in respect of the employees at the retail store at Place Laurier in Sainte-Foy, appellant does not have the representative character required by the Code.
* * *
WHEREAS three separate groups must exist in this firm, namely the employees at the store on St. Joseph Street in Quebec City, in the first place; the employees at the store at Place Laurier, Sainte-Foy, in the second; and finally, the employees at the Charest Boulevard and Dorchester Street warehouses in Quebec City;
WHEREAS the Board has no authority to divide a petition, or of its own motion to certify an association without a supporting resolution and a petition to this end when the groups concerned are to be divided, even if the petitioning association has an absolute majority as members in some of these groups;
* * *
DISMISSES the petition for certification submitted on September 8, 1964 in view of the inappropriate groups claimed by the said petition, and RESERVES the petitioner’s right to submit new petitions for certification in accordance with the law, if it so desires, based on groups as defined above.
It will be seen that the Board, having found that the Association had met all the conditions prescribed for entitlement to certification as the representative of two of the three groups into which it decided to divide the company’s employees, denied any certification solely because the Association’s petition claimed certification for the employees as a whole; this was so decided notwithstanding the following provisions of the Labour Code:
20. Any association of employees comprising the absolute majority of the employees of an employer is entitled to be certified.
According to the decisions of the Board, such right shall avail all the employees of the employer or
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each group of the said employees which the Board declares is to constitute a separate group for the purposes of this code.
* * *
22. Certification shall be applied for by an association of employees to the Board, by means of a petition authorized by resolution and signed by its authorized representatives.
* * *
28. If after investigation, the Board considers that the petitioning association represents the majority of the whole or of a separate group of the employees of the employer mentioned in the petition, it shall grant certification.
The Board shall render a written decision accordingly and specify the group which the certified association represents.
A copy of such decision shall be sent to the employer.
The Association promptly applied to the Superior Court for an order or mandamus requiring the Board to perform its duty of granting certification to the Association in accordance with the statute. The issuance of the writ with a staying order was granted by judgment of July 3, 1968 and, after a hearing on the merits, a peremptory order was granted by judgment of December 27, 1968. This judgment was reversed on appeal[2] by a decision rendered March 31, 1970, Brossard J. dissenting.
The first reason given by one of the majority judges is that the Board’s decision is not arbitrary or unreasonable, and deals essentially with a question of procedure.
If this were indeed a procedural question I would be in agreement. With respect, however, it is undoubtedly a question of law when it is considered decisive on the merits. The decision of the Board begins by acknowledging that the Association has met all the requirements for entitlement to certification in respect of two of the three groups which it finds are to be regarded as separate, but, solely because certification was sought for the employees as a whole, it refuses to grant what its decision implies the Association was entitled to. The Labour Code in no way makes it necessary to have the Board determine whether the employees of an employer are to con-
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stitute one or several separate groups before presenting a petition for certification. On the contrary, s. 28 expressly provided that certification shall be granted either for the whole or for a separate group of the employees of the employer mentioned in the petition. Of course, under s. 54 of the Interpretation Act (R.S.Q. 1964, c. 1), the singular number in this provision includes the plural.
I really cannot understand how the Board could have held, in view of the above quoted provisions, that it did not have the authority to grant certification for a portion of the employees covered by the petition, i.e. for two of the three groups into which, in its opinion, the whole was to be divided. As Henri Elzéar Taschereau J., later Chief Justice, said in a case (Turcotte v. Dansereau[3]) from which Fauteux J., as he then was, quoted in the Alliance des Professeurs Catholiques de Montréal case[4]:
The insufficiency of a litigant’s allegations may be fatal to his claim, but if he alleged more than is necessary, or adds to a legitimate demand conclusions which he is not entitled to, that is no reason to reject the whole of his demand.
In this case, the transcript of arguments before the Board was put in evidence at the hearing in the Superior Court. It appears that counsel for the Association expressly requested that certification be granted for separate groups if the Board found that the whole was not to be regarded as a single group for such purposes: [TRANSLATION] “Issue one certificate, issue three, issue five, it does not matter.” Moreover, the Board only gave its decision on the division into groups when it disallowed the petition, thereby failing to give the Association an opportunity to amend its petition for certification so as to allow for the division into groups.
What is to be said of the reservation of the Association’s right to submit new petitions? Such reservation is unfortunately as illusory as the reservation of the right to institute a new action
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when the dismissal of a suit is pronounced after the time for prescription has run. At the hearing, counsel for the Board was unable to indicate any provision under which it could be found that the right to certification which the Association unquestionably had when its petition was submitted in 1964, was not extinguished by the dismissal of this petition; he could cite nothing to show that new petitions would not be subject to the rule followed by the Board in matters of certification, whereby a petitioning association must establish its representative character as of the date of its petition.
Argument in support of the decision of the Court of Appeal was then based on s. 115 of the Labour Code, authorizing the Board to make regulations to govern the exercise of its powers, and s. 116, which provides that in the absence of any regulation applicable to a particular case, the Board may, in any matter submitted to it, prescribe any act or formality which could be prescribed by regulation, and with the same effect. The error in this reasoning is that in this instance the Board has not prescribed an act or formality: it has decided without doing so. Further, under the Code what it may prescribe in the absence of a regulation has the same effect as a regulation; but a regulation may not have retroactive effect. It is a fundamental rule that a new requirement does not apply to acts previously accomplished. The legislature may derogate from this rule, not the Board. Consequently, a regulation respecting the form of petitions could not be applied to petitions already received and validly made, so as to invalidate them.
It was then contended that the Board had not refused to exercise its jurisdiction, but has dismissed the petition because of its interpretation of some sections of the Code. If it was wrong in law, we were told, this does not warrant intervention by the Superior Court. Reference was made to the following extract from the reasons of this Court in Komo Construction Inc. et al v. Labour Relations Board[5]:
[TRANSLATION] A body like the Board does not decline its jurisdiction because it applies a legislative
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provision incorrectly; it does so only when it goes beyond its jurisdiction or fails to comply with essentionl requirements for the exercise of its jurisdiction.
As this quotation indicates, it is not enough to show that no more than an error in law is involved in order to establish that the Superior Court cannot intervene, because on that basis it would never be entitled to do so. Consideration must always be given to whether the Board has failed to comply with an essential requirement. To so find, I need only recall that in Smith and Rhuland Limited v. The Queen[6], this Court ordered a board to grant a certification which it has refused without good reason although, in that case, the statute by the word “may” conferred some discretion. The Labour Code, however, is clearly mandatory on this point. The Board’s power of interpreting the statute by which it is governed does not go so far as to authorize it to decline to exercise its jurisdiction, in disregard of its duty; this Court so held in Quebec Labour Relations Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry[7]. Clearly in this case the duty could not be more essential: that of granting certification when the Board finds that the prescribed conditions for it have been met.
Finally, it was contended that the decision of the Board was judicious because it ensured that the wishes of the employees were respected. It was said that as the Association based its petition on a resolution by the employees authorizing an application covering the employees as a whole, it would have been unfair to require such employees, who had demonstrated their wish to be represented as a single group, to be split into separate groups. The flaw in this argument is to regard the petition for certification and the accompanying resolution as the act of the group of employees concerned. Under the Labour Code, certification is requested not by the group of employees but by the association, which may have much wider membership. Similarly, the resolution prescribed is not that of the group of employees, but of the association, which is a totally different matter. The principle of the Labour Code regarding certification is the
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representative character of the employees’ association: to be entitled to certification, it must enlist a majority of the group in question, but it is the association that makes the request, and it is the association, not the group, which by resolution decides to petition.
On this as on the preceding points I think it fitting to quote the following observations of Brossard J., which seem wholly appropriate:
[TRANSLATION] Upon a petition for certification in respect of all the employees, to require as a condition of certification in respect of a separate and limited group, a separate, new and original petition under sections 22 and 23, as the Board appears to have decided, would, contrary to the letter and spirit of sections 20 and 28, and the principles of the Code, establish conditions of certification which are not required by these sections, and which would render their application ineffective or subject to frustrating delays.
In my opinion the Board has by its order, without having the power to do so, erected arbitrary obstacles to the exercise of its jurisdiction under sections 20 and 28, and in so doing has unlawfully refused, by an error of law, to exercise its jurisdiction and to perform its duties. I feel this is a case where the Board’s refusal to exercise its jurisdiction may be inferred from the ratio decidendi of its order, as in the decisions of the Supreme Court of Canada and of this Court in Quebec Labour Relations Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (judgment of the Supreme Court, February 3, 1969, not yet reported, and 1968 Q.B. 199).
The present case illustrates the serious consequences of such refusal in respect of the due protection and safeguarding of employees’ and labour associations’ rights.
Respondent Association applied for certification on September 8, 1964. The petition was held up nearly four years by proceedings instituted by the employer which were held ill‑founded, and which accordingly were so when the petition for certification was submitted; the effect of the Board’s order, made more than four years after this petition, was to irretrievably deprive the Association from the benefit of the petition and to oblige it to start all over again after this length of time, a well-nigh fatal consequence for the purposes of the code, the
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primary purpose of which is to ensure the protection of employees and the prompt settlement of labour disputes. Therefore it appears desirable—if only to demonstrate, on the one hand, the consequences and the grave dangers of an abuse of jurisdiction, or a refusal to exercise jurisdiction, by appellant, and on the other, of the use against precedents of remedies denied by section 121 of the Labour Code—to quote this passage from the judgment of Paul Lesage J. allowing a writ of summons to be issued on the application for a mandamus:
[TRANSLATION] “The decision given on June 3, 1968, is retroactive in effect to September 8, 1964, the date on which the petition was made. One can easily appreciate the difficult situation in which the petitioner is put for all the acts it has performed during four years with respect to the employees whom it was supposed to represent, but if the decision is valid, did not. It is thus easy to understand the petitioning union’s reasons for seeking to establish the validity of its petition for certification, rather than proceed by new petitions in accordance with the reservation made in the majority decision.”
It is my conclusion that the judgment of the Superior Court should be restored. However, it appears to me that the operative part should be rectified. By its petition the Association prayed, in effect, that the Board be ordered to grant it certification as representative of the two groups of employees for which the Board decided it had met all the requirements laid down by the Code and Regulations. Yet the last paragraph of the judgment of the Superior Court reads as follows:
[TRANSLATION] ORDERS the respondent Board to exercise its jurisidiction and to decide on the merits of the petition as regards petitioner’s application for certification, separately for each of the three groups of employees of the mise-en-cause, as described by the respondent in its decision of June 3, 1968.
The Board having determined the composition of the groups, and also having ruled on the Association’s right to certification as representative of two of these groups, had nothing further to decide when the Superior Court action was instituted. All that remained for it to do was to grant certification for the two groups, and this is just what the Association was seeking. It now seems more than ever essential to allow the peti-
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tion in these terms, as the Board was abolished by a 1969 statute (c. 48) which, however, provided as follows:
136b. The chief investigation commissioner shall become a party to every suit to which the Quebec Labour Relations Board was a party on the 29th of August 1969, without proceedings in continuance of suit.
For these reasons I would allow the appeal and reverse the judgment of the Court of Appeal with costs in both courts against respondent, and rectify the judgment of the Superior Court by substituting for the last paragraph of the operative part the following:
ORDERS the respondent Board to grant to the petitioner certification separately for each of the two groups of employees of the mise-en-cause described by the respondent in its decision of June 3, 1968, as to which it found therein that the petitioner had met all the prescribed conditions to be so entitled.
Appeal allowed with costs.
Solicitors for the appellant: Cutler, Langlois, Castiglio & Décary, Montreal.
Solicitors for the respondent: Flynn, Rivard, Jacques, Cimon, Lessard & LeMay, Quebec.
Solicitors for the mise-en-cause: Gagné, Trotier, Letarte, Larue, Royer & Tremblay, Quebec.