Supreme Court Judgments

Supreme Court of Canada

Tomko v. Labour Relations Board (N.S.) et al., [1977] 1 S.C.R. 112

Date: 1975-12-19

Alex Tomko Appellant;

and

Labour Relations Board (Nova Scotia); Canatom Mon-Max; Labourers’ International Union of North America, Local 1115; and the Attorney General of Nova Scotia Respondents;

and

Alex Tomko Appellant;

and

John F. MacDonald, Donald C. MacNeil and The Attorney General of Nova Scotia Respondents;

and

The Attorney General of Canada, the Attorney General of Ontario, The Attorney General of Quebec, The Attorney General of British Columbia, The Attorney General of Alberta and The Attorney General of Saskatchewan (Intervenors)

1975: October 9, 10; 1975: December 19.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Constitutional law—Distribution of powers—Validity of provincial legislation empowering provincial labour relations board to issue ‘cease and desist’ orders—Distinction between ‘cease and desist’ order and injunction—British North America Act, 1867, s. 96—Trade Union Act, 1972 (N.S.), c. 19, s. 49.

Administrative law—Labour relations board—Validity and regularity of interim order—‘Cease and desist’ order—Administrative character of such order—British North America Act, 1867, s. 96—Trade Union Act, 1972 (N.S.), c. 19, s. 49.

Respondent employer lodged a complaint with the Labour Relations Board and requested a cease and desist order. It named as respondents the union with which it had a collective agreement, the union’s business agent Tomko and employees who were union members

[Page 113]

and taking part in an allegedly illegal work stoppage. The chief executive officer of the Board received the complaint and in informing the members of the Construction Industry Panel by telephone said that he would report back further after making an investigation. He contacted the manager of the project where the strike was and then telephoned Tomko to inform him of the complaint though without reading the whole document to him. Thereafter he talked with two other union officials and then without further communication with Tomko contacted the chairman of the Board and similarly the two other persons who with the chairman acted as members of the Construction Industry Panel and reported orally on his inquiries. The Panel that same day issued an interim cease and desist order of which the parties were informed by telephone. A copy of the complaint and of the interim order were mailed to Tomko. Three days later Tomko was served with a summons charging him with a failure to comply with the interim order. Tomko brought certiorari proceedings to have the order quashed and also sought prohibition against a magistrate to enjoin him from hearing the charge of failure to obey the interim order. Both proceedings were reserved for consideration by the Appeal Division which in a unanimous judgment dismissed both applications. Two questions were raised on subsequent appeal, a constitutional one relating to s. 96 of the B.N.A. Act in its bearing on the Trade Union Act, 1972 (N.S.), c. 19, particularly s. 49, and an administrative one concerning the validity and regularity of the interim order.

Held (de Grandpré J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.: The contention was made by the appellant and by the Attorney General of Canada that the power to issue cease and desist orders and allied mandatory orders is equivalent to a power to grant an injunction which has been traditionally a power of a Superior Court. However, the Board, or Panel, does not approach the issue of a cease and desist order in the same way as a Court approaches the issue of an injunction. The Board, or Panel, makes its own investigations of the issues raised by a complaint and decides on its own findings whether an interim order should issue.

The character of the Board is that of a non-legal but specialized agency having a limited discretionary power

[Page 114]

to apply remedies to support the precepts of the legislation. The added power thought necessary to enable such an administrative agency to deal with illegal strikes or lockouts (viz. the authority to induce or compel a settlement on the cease and desist order) and given to the Board by s. 49 of the Trade Union Act does not offend s. 96 of the B.N.A. Act.

The emergency nature of the s. 49 proceeding is clear. Section 49(2) permits the Board or Panel to issue an interim order if satisfied after investigation of a complaint that s. 48 has not been complied with “nothwithstanding any provision of this Act.” An administrative agency which has not been clearly charged to conduct an investigation itself can do so through its officers especially in the exercise of an emergency authority to make an interim order. As s. 49(2) empowers the Board (or Panel) to direct an interim order to “any person” and against “any activity or action”, the terms of the order did not require to be limited to the exact requests for relief sought in the complaint.

Per de Grandpré J. dissenting: The power vested in the Board under s. 49 to issue an order to cease and desist is in substance a power to issue an injunction; such a power, by its nature, is vested in the Superior Courts in s. 96 of the B.N.A. Act and may not be conferred on a body the members of which are not appointed in the manner provided in that section, even though the particular type of injunction, in this case an injunction in labour law, was unknown in 1867. The similarity between the order in question and an injunction is apparent from the very words used by the Board and by s. 49(8) of the Trade Union Act. The Board is not a s. 96 Court as such but s. 49 gave it a function to perform which, by its nature, belongs to the courts described in s. 96. The function is not incidental to the administrative function of the Board, since the Board operated until 1968 without it and since the ordinary courts retain a parallel jurisdiction.

[Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134; Tremblay v. La Commission des Relations de Travail du Québec, [1967] S.C.R. 697 followed; Dupont v. Inglis, [1958] S.C.R. 535; A.G. (Ont.) and Display Services Co. Ltd. v. Victoria Medical Building, [1960] S.C.R. 32; Brooks v. Pavlick, [1964] S.C.R. 108; International Brotherhood of Electrical Workers v. Winnipeg Builders Exchange, [1967] S.C.R. 628; Re Polymer Corp. (1961), 26

[Page 115]

D.L.R. (2d) 609, aff’d. (1961), 28 D.L.R. (2d) 81, aff’d. [1962] S.C.R. 338 referred to.]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], in the matter of applications for orders of the nature of certiorari and prohibition reserved for the consideration of the Appeal Division pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2 by Cowan C.J.T.D. Appeal dismissed, de Grandpré J. dissenting.

Sydney L. Robins, Q.C., Raymond Koskie, and Joel Pink, for the appellant.

Kenneth A. MacInnis, Graham Stewart, and Mary Clancy, for the respondents, Labour Relations Board (N.S.), the Attorney General of Nova Scotia, John F. MacDonald and Donald C. MacNeil.

Merlin Nunn, Q.C., and Gregory North, for the respondent, Canatom Mon-Max.

T.B. Smith, Q.C., for the Attorney General of Canada.

D.W. Mundell, Q.C., and Lorraine E. Weinrib, for the Attorney General of Ontario.

Ross Goodwin, for the Attorney General of Quebec.

D.H. Vickers, and N.J. Prelypchan, for the Attorney General of British Columbia.

Darryl G. Bogdasavich, for the Attorney General of Saskatchewan.

William Henkel, Q.C., for the Attorney General of Alberta.

The judgment of Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ. was delivered by

THE CHIEF JUSTICE—This appeal raises two questions, one of constitutional law and one of administrative law. The constitutional question relates to s. 96 of the British North America Act in its bearing on certain provisions of the Trade

[Page 116]

Union Act, 1972 (N.S.), c. 19 and especially s. 49, which authorizes the Nova Scotia Labour Relations Board, and the division thereof called the Construction Industry Panel, to issue cease and desist orders and also orders of an affirmative nature in respect of a lockout or strike prohibited by the Act, or in respect of a jurisdictional dispute over the assignment of work. The administrative law question concerns the validity and regularity, under the Act and the regulations thereunder, of an interim order made under s. 49 by the Construction Industry Panel, an order directed to the appellant Tomko, to a union of which he was the business agent, and to employees members of the union who were engaged in an unlawful strike. Neither the union nor the aforesaid employees are parties to this appeal.

The Trade Union Act, which is at the base of the two questions of law in this case and of the issues to which those questions give rise, is of a character common to labour relations legislation in Canada. It was first enacted in 1947 and was refined in 1964 and 1968, and again in 1972, to be better able to deal with the complexities of labour relations resulting from the increasing sophistication of unions and employers in that field. Briefly, the Act establishes a procedure for certification of trade unions, and provides for the negotiation of collective agreements and for the conciliation of negotiation differences, and for the arbitration of disputes arising under concluded collective agreements. The freedom of employees to engage in collective bargaining through unions of their own choosing and the integrity of the collective bargaining process are protected by the prohibition of specified unfair labour practices and by the prohibition of strikes and lockouts pending certification and the conclusion of prescribed conciliation procedures and by the prior requirement of a favourable strike vote. In addition, strikes and lockouts are prohibited during the currency of a collective agreement.

Administration of the Act is confided largely to a bipartite Labour Relations Board with an

[Page 117]

independent Chairman, all members serving on a part time rather than on a full time basis. Since 1964 the Board has been invested with power to give remedial relief against unfair labour practices, as by ordering reinstatement of employees unfairly dismissed in violation of the Act and by ordering the employer to compensate them for loss of remuneration. Similarly, the Board may order reinstatement or admission of an employee as a union member and compensation for monetary loss suffered by reason of unlawful union disciplinary action. In 1968, the Legislature invested the Board with cease and desist powers in respect of illegal work stoppages, whether lockouts or strikes, and set up a speedy procedure for certification of unions in the construction industry. Additional attention was paid to the construction industry in the 1972 revision of the Act by the establishment of a Construction Industry Panel of the Board and by providing for the accreditation of employer organizations in that industry. Arbitration procedures therein were strengthened and the Board’s enforcement authority was given greater force in respect of unfair practices and of cease and desist orders in respect of unlawful work stoppages.

Sections 48 and 49 of the present Act are the provisions immediately germane to the determination of the constitutional question. That question, in respect of which there was an intervention by the Attorney General of Canada in support of the appellant and interventions by the Attorneys General of Ontario, Quebec, British Columbia, Saskatchewan and Alberta in support of the respondents (among whom was the Attorney General of Nova Scotia) was formulated as follows:

Whether Section 49 of the Trade Union Act of Nova Scotia is ultra vires of the Legislature of Nova Scotia because it purports to confer on the Construction Industry Panel of the Labour Relations Board (Nova Scotia) judicial powers and functions which under Section 96 of the British North America Act can only be exercised by and conferred upon a Court whose members are appointed by the Governor General in Council.

[Page 118]

In addition to ss. 48 and 49 of the Act, reference may be made, to assess the constitutional question in fuller perspective, to ss. 81 and 82. These provisions in their relevant terms read as follows:

48. (1) In this Section, Section 49 and Section 50,

(a) “person” includes a trade union, council of trade unions, employee, employer, employers’ organization and any agent, attorney or counsel of a person, trade union, council of trade unions, employee, employer or employers’ organization;

(b) “work stoppage” means any discontinuance or cessation of all or any part of the normal work or activity carried on by an employer and employees on whose behalf a trade union is certified as bargaining agent caused by

(i) a lockout or strike prohibited by this Act; or

(ii) a jurisdictional dispute.

(2) No person shall cause, authorize, participate in or commit a work stoppage.

49. (1) Any person who claims to be involved in or affected by acts contrary to Section 48 may make a complaint to the Board identifying the complainant and the circumstances and nature of the work stoppage.

(2) If the Board is satisfied after investigation of the complaint that Section 48 has not been complied with, the Board, notwithstanding any provision of this Act, may issue an interim order requiring any person named in the order to forthwith cease and desist any activity or action or to perform any act or commence any activity or action stated in the interim order.

(3) Where there has been a complaint under subsection (1) the Board may, before or after the making of an interim order under subsection (2), authorize an officer of the Department of Labour or a person designated by the Minister, to inquire into the acts complained of, to endeavor to effect a settlement and to make a report to the Board.

(4) If the officer of the Department of Labour or a person designated by the Minister is unable to effect a settlement or if the complainant or a person named in an interim order so requests in writing, the Board shall conduct a hearing for the purpose of considering evidence and representations together with the report made

[Page 119]

in accordance with subsection (3) and shall arrive at a decision with respect to the complaint.

(5) The decision shall be in the form of and issued as an order of the Board and may

(a) require any person to forthwith cease and desist any activity or action or to perform any act or commence any activity or action;

(b) confirm, vary or rescind an interim order.

…

(8) An interim order in accordance with subsection (3) or decision of the Board in accordance with subsection (5) shall have the force and effect of law and shall be binding upon and govern the persons involved in or affected by acts contrary to Section 48 and shall bind and govern any person named in the interim order or decision.

…

(11) An interim order in accordance with subsection (3) is deemed to be in force until a decision in accordance with subsection (5) is made or the Board makes an order rescinding or varying the interim order and a decision in accordance with subsection (5) is deemed to be in force unless the Board makes a further order rescinding or varying the decision.

…

81.…

(3) Every trade union that declares or authorizes a strike contrary to this Act is liable upon summary conviction to a penalty not exceeding three hundred dollars for each day that the strike exists.

(4) Every officer or representative of a trade union who declares or authorizes a strike contrary to this Act is liable upon summary conviction to a penalty not exceeding two hundred dollars for each day that the strike exists.

…

82. (1) Every person who, knowing that he is required to perform any act or to cease or desist from any act by virtue of an interim order or decision of the Board made pursuant to Section 49 of this Act,

(a) fails to perform any act required by the interim order or decision; or

(b) fails to cease or desist from any act required by the interim order or decision,

is guilty of an offence and is liable on summary conviction to a penalty not exceeding one thousand dollars, in the case of an individual, or ten thousand dollars in any other case.

…

[Page 120]

(4) Each day that a person commits an offence under subsection (1) constitutes a separate offence.

…

Section 96 of the British North America Act, in terms an appointing power (“The Governor General shall appoint the Judges of the Superior, District and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick”), is now regarded as a limitation not only on provincial power to provide for the appointment of Judges of the status of those mentioned in s. 96 but also on their power to invest agencies of their creation and members thereof appointed under their authority with jurisdiction or powers that (to use the formula adopted by the Privy Council and by this Court in a succession of cases) are broadly conformable or analogous to jurisdiction or powers exercised and exercisable by Courts which are within s. 96. In my opinion, the judgment of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.[2], and of this Court in Tremblay v. Commission des Relations de Travail du Québec[3], have properly emphasized what other cases have reflected in their consideration of the force of s. 96 (as for example, Dupont v. Inglis[4], Attorney General for Ontario and Display Services Co. Ltd. v. Victoria Medical Building[5] and Brooks v. Pavlick[6], namely, that it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation. I think that this is particularly true where remedial authority, such as that involved in the present case, is concerned.

Although no constitutional objection is taken here to the constitution of the Labour Relations Board or of its Construction Industry Panel, nor to the powers granted in respect of certification and

[Page 121]

the monitoring of unfair practices, it is contended by the appellant and by the Attorney General of Canada that the power to issue cease and desist orders and allied mandatory orders is equivalent to a power to grant an injunction which has been traditionally a power of a Superior Court. Without insisting that the allegedly judicial character of this power was determinative of the constitutional issue, the appellant and the Attorney General of Canada relied on statutory history to support their submission that the addition to the arsenal of Board powers of the power to issue cease and desist orders indicated that it was not essential to the maintenance of the integrity of the collective bargaining system envisaged by the Trade Union Act but rather provided a remedy open concurrently with or alternatively to the injunction that Superior Court Judges could issue in like circumstances under the Nova Scotia Judicature Act, 1972 (N.S.), c. 2, ss. 39 and 40. Indeed, it was submitted that the power under s. 49 of the Trade Union Act was even broader than the power given by the Judicature Act to issue injunctions in labour relations matters.

The legislative history relied on related to the fact that when the Board was given power in 1968 to issue cease and desist orders provision was made for filing them in the office of the prothonotary of the Supreme Court whereupon they became enforceable in the same manner as orders of that Court. In 1972, this method of enforcement was dropped and s. 82 was enacted to provide for prosecution and imposition of a heavy penalty for failure to obey a cease and desist order made under s. 49. What is clear under the previous state of the law as under the present state is that the Board (or, as here, the Construction Industry Panel) does not have power itself to punish for a breach of a cease and desist order in contradistinction to the power of a Superior Court to entertain contempt proceedings upon a breach of an injunction issued by the Court.

[Page 122]

Again, the retention by the ordinary Courts of power to issue injunctions in labour‑management disputes, albeit with restrictions on their power to issue interim or interlocutory injunctions ex parte, is simply a consideration which must be taken into account on the constitutional question. There may, indeed, be a choice open of one of three available procedures for seeking relief against an unlawful strike or lockout. There may be prosecution under s. 81, for which consent, as required by s. 77, is obtained; there may be an action in the Courts for an injunction and damages; or a cease and desist order may be sought under s. 49 which, in turn, if disobeyed, may lead to prosecution under s. 82.

What is significant about the provision for a cease and desist order obtainable from the Board or, in the construction industry, from the special Panel for that industry, is that it makes allowance for efforts at settlement before or after the making of an interim cease and desist order. The fluidity and the volatility of labour relations issues must be counted as weighing heavily with the Legislature in providing this alternative means of seeking an accommodation between employers and trade unions under the superintendence of the Board or its special division and with the assistance of the Department of Labour, an accommodation that puts to one side the alternative routes of prosecution and Court injunction. The policy considerations are evident, and in pursuit thereof the mechanism of a cease and desist order to restore the lawful status quo ante seems to me to be a rational way of dealing administratively with a rupture of peaceful labour relations.

The Labour Relations Board or the Construction Industry Panel does not approach the issue of a cease and desist order in the same way that a Court approaches the issue of an injunction. Unlike a Court, the Board or Panel makes its own investigation of the issues raised by a complaint and decides for itself on its own findings whether an interim order should issue; and it is required to

[Page 123]

do so irrespective of any balance of convenience once it is satisfied that there is an unlawful work stoppage. The Board or Panel is involved in continuous supervision directed to achieving a settlement, if it can, and this is something which ordinarily militates against the issue of an injunction by a Court. There are other differences in the respective approaches, such as the absence of any requirement under s. 49 of an undertaking as to damages, and it may be doubted that requirements of full disclosure or clean hands are as compelling under s. 49 as they are where an interim injunction is sought.

The scope of superintendence by the Legislature, through an administrative agency, of the initiation and continuation of collective bargaining relations between employers and trade unions without rupture has been considerably increased, and this monitoring of the quality of those relations has necessitated the introduction of new methods for control and vindication of the policies of the legislation. It has involved the adaptation to the legislative and administrative regime of remedies that in another, more individualistic, context had been evolved and are still being exercised by the ordinary Courts. That, however, does not necessarily make them impermissible for exercise by the administrative agencies as violative of s. 96 of the British North America Act.

In the John East case, it was held that a provincial labour relations board could validly be given power, in the exercise of its authority to deal with unfair labour practices, to order reinstatement of an unlawfully dismissed employee and to order compensation to be made to him for his monetary loss. I do not need to consider that equity did not order specific performance of personal service contracts, but certainly declarations can be made that dismissals are unlawful, and compensation or damages for loss resulting from unlawful dismissal is a traditional remedy in the Courts. Moreover, this Court in International Brotherhood of Electrical

[Page 124]

Workers v. Winnipeg Builders Exchange[7] supported the grant of an injunction having the effect of requiring employees illegally on strike to return to work. What the John East case shows is that in the particular framework of the legislation there in question there is no invasion of s. 96 in empowering an administrative board to apply remedies which in another context are obtainable from the ordinary courts.

Again in the Tremblay case, this Court upheld the power of the Legislature to empower the administering agency under labour relations legislation to direct the dissolution of an employer-dominated trade union, a power akin to a traditional authority in the ordinary courts to dissolve corporations. The principle upon which the Tremblay case proceeded was that derivable from the John East case, with its emphasis on the character of the Labour Relations Board as a non-legal but specialized agency having a limited, discretionary power to apply remedies to support the precepts of the legislation. I may add that arbitrators have asserted their power, even without express warrant in the collective agreement, to award damages for breach of the agreement against a defaulting party without it being contended that in so doing they would be offending s. 96 of the British North America Act in that they were applying a remedy that was traditionally one applied by Superior, District or County Courts: see Re Polymer Corp.[8]

In my opinion, the same principle applies here in respect of the added power thought necessary to enable the administrative agency to deal with illegal strikes or lockouts by exercising a remedial authority to induce or compel a settlement of the dispute which led to the unlawful activity or

[Page 125]

peremptorily to bring that activity to an end by an interim cease and desist order. I hold, therefore, as did the Appeal Division of the Nova Scotia Supreme Court, that s. 96 of the British North America Act is not offended by the vesting of such a power in the Labour Relations Board under s. 49 of the Trade Union Act and in the Construction Industry Panel, by derivation, under s. 91(4) of the Act.

I turn now to the administrative law question. The respondent employer lodged a complaint in writing with the Labour Relations Board, entitled “Complaint Concerning a Work Stoppage—Request for a Cease and Desist Order”. It named as respondents the union with which the employer had a collective agreement, the union’s business agent Tomko and employees members of the union who were on strike, allegedly unlawfully since the collective agreement was then in force. The complaint was made under Form 14 in the Regulations made pursuant to the Trade Union Act, and it alleged that a strike had occurred on May 1st as a result of certain disciplinary action taken against some members of the union, that picketing had occurred and that as a result all of the tradesmen represented by a number of unions stayed off work. It asked for “issue [of] an order that the respondents cease and desist from causing, authorizing, participating in or committing a work stoppage, and from picketing and causing other employees of the complainant not to perform their regular work”.

The chief executive officer of the Board, Langlois, received the complaint about 9:30 a.m. on May 7, 1974. He informed the members of the Construction Industry Panel of the complaint by telephone and said he would report back further after making an investigation. Having contacted the manager of the project where the strike was on foot he then telephoned Tomko to inform him of the complaint but apparently without reading the whole document to him. There was a short discussion of what was going on at the site of the strike

[Page 126]

and whether the men had been directed to return to work. I accept that Tomko was not given any detail of the nature of the formal complaint other than that it had been filed, but his evidence is clear that he knew what it was all about, knew the issue that prompted the complaint and knew that its purpose was to have the Construction Industry Panel bring the strike to an end. Unless therefore, there is an inexorable requirement under the applicable law that he must be given a copy of the formal complaint, in order to make representations thereon, before any action on the complaint may be taken by the Panel, I see no merit in the appellant’s contention that there was in this respect a failure of natural justice. I will return to this point later in these reasons.

After his talk with Tomko, Langlois talked with two other union officials about the strike situation and then, without further communication with Tomko, he contacted the chairman of the Labour Relations Board and reported to him orally on his inquiries, and reported similarly to the two other persons who with the chairman acted as members of the Construction Industry Panel. In the result, the Panel authorized at about 1:30 p.m. of May 7, 1974, the issue of an interim order in the following terms:

(a) Ordered the employees of the Company represented by the Union who have participated in an illegal work stoppage to forthwith cease and desist from participating in the illegal work stoppage;

(b) Ordered the Union and the Appellant to forthwith cease and desist from causing or condoning the illegal work stoppage; and

(c) Ordered the Appellant to direct all employees members of the Union who are participating in the illegal work stoppage to return to work forthwith.

The parties were informed of the order by telegram and a copy of the complaint and of the interim order was mailed to Tomko. It is not alleged that he did not receive them.

On May 10, 1974, Tomko was served with a summons charging him with a failure to comply

[Page 127]

with the interim order. A few days later Tomko brought certiorari proceedings to have the order quashed and also sought prohibition against a magistrate to enjoin him from hearing the charge of failure to obey the interim order. Both proceedings were, by order of Cowan C.J.T.D., reserved for consideration by the Appeal Division which in a unanimous judgment dismissed both applications. In my opinion, this judgment should be affirmed.

Among the contentions made by counsel for the appellant were the following: (1) Tomko should have had a copy of the complaint before the Panel acted upon it; (2) he should have had a previous opportunity to make representations; (3) the Panel exceeded its jurisdiction in including in the interim order directions for remedial action not sought in the complaint; (4) the so-called investigation by Langlois was not one for him to make but was a duty cast upon the Panel. There was also an allegation of bias against a member of the Panel but this Court did not require the respondents to meet it, holding the allegation to be without substance.

Counsel for the appellant founded himself in respect of his contentions on Regulation 2 as requiring service of the complaint, on s. 15(9) of the Act as obliging the Panel to afford Tomko a previous opportunity to present evidence and make representations, on Regulation 24, Form 14 and s. 49 in objecting to the inclusion of directions in the interim order not requested in the complaint, and again on s. 49 in taking issue with the investigation by Langlois and not by the Panel.

I find it necessary to set out only the terms of s. 15(9)(10) of the Act and to refer again to s. 49(2) which has already been quoted. These provisions read as follows:

15.…

(9) The Board shall determine its own procedure, but shall, subject to subsection (10), in every case give an opportunity to all interested parties to present evidence and make representation.

(10) Upon application for an interim order pursuant to Section 49 or Section 50 and in any case where a hearing is not requested, if the Chairman deems it

[Page 128]

appropriate, the Board may deal with any matter by each member conferring separately with the Chief Executive Officer and each deciding the matter.

49.…

(2) If the Board is satisfied after investigation of the complaint that Section 48 has not been complied with, the Board, notwithstanding any provision of this Act, may issue an interim order requiring any person named in the order to forthwith cease and desist any activity or action or to perform any act or commence any activity or action stated in the interim order.

I am prepared to agree that s. 15(10) may not have been drafted clearly enough to exclude the application of s. 15(9) to complaints leading to an interim cease and desist order and to the making of such an order ex parte. In my opinion, however, the emergency nature of the proceeding is underlined by the terms of s. 49 which in subs. (4) makes provision for a hearing at the request of a person named in an interim order. Above this, however, there are the key words in s. 49(2) that “notwithstanding any provision of this Act” the Board (or Panel) may issue an interim order if satisfied after investigation of a complaint that s. 48 has not been complied with. This means notwithstanding s. 15(9), and none of the Regulations upon which the appellant relies can supersede this statutory qualification. I have already indicated that Tomko was aware of what the complaint was about and I do not think, in any event, that any tenable objection can be taken to the quality of the investigation in this case. There is, however, the objection to it being conducted by Langlois.

I am unable to agree that an administrative agency which is not clearly charged to conduct an investigation itself cannot do so through its officers, especially where it is being asked to exercise an emergency authority to make an interim order. I think that when s. 49(2) is read together with s. 15(10) and s. 91(9) which enables the Board or Panel members to confer separately with the chief executive officer and each to come to a decision on the issue of an interim order, there can be little doubt that a permissible procedure was followed.

[Page 129]

The Panel was therefore fully entitled to have Langlois investigate and report to it before making the interim order herein.

There remains only the question whether the terms of the order must be limited to the exact request for relief sought in the complaint. There is no such limitation in s. 49(2) which empowers the Board (or the Panel) to direct an interim order to “any person” and against “any activity or action”. Indeed, having regard to the purpose of the authority, it could not be otherwise so long, at least, as the activity or action whose cessation is directed by the interim order or is required thereunder is related to or connected with the illegal work stoppage. That was certainly the case here; the terms of the interim order concern only those involved in the work stoppage and are limited to action to bring it to an end.

The appellant fails on both the questions on which this appeal has proceeded and I would dismiss it with costs. There will be no order as to costs to or against any of the intervenors.

DE GRANDPRÉ J. (dissenting)—Since the judgment a quo is reported in (1975), 9 N.S.R. (2d) 277 there is no need for me to relate the facts or summarize the views of the Appeal Division of the Supreme Court of Nova Scotia, except where necessary for a proper understanding of my reasoning. As appears from the judgment, in the Court of Appeal the appellant put forward three arguments, which were again submitted to this Court. Since, in my opinion, appellant must succeed on the constitutional question, I shall not examine his other two arguments.

By an order of October 10, 1974, the constitutional question was defined as follows:

Whether Section 49 of the Trade Union Act of Nova Scotia is ultra vires of the Legislature of Nova Scotia because it purports to confer on the Construction Industry Panel of the Labour Relations Board (Nova Scotia) judicial powers and functions which under Section 96 of the British North America Act can only be exercised by and conferred upon a Court whose members are appointed by the Governor General in Council.

[Page 130]

The Chief Justice of Nova Scotia, speaking for the Court of Appeal, approached the issue from two aspects (p. 287, par. 21):

(1) as an institution, is the Board a tribunal “endowed with jurisdiction conforming broadly to the type of that exercised in 1867 by the courts mentioned in the section (96) or tribunal analogous to them?”

(2) if the institution itself is not such a tribunal, “is the particular function in question a power or function (and I prefer the word ‘function’) of the type which belongs to a s. 96 Court?”

To answer these questions the Court of Appeal relied, inter alia, on the Privy Council decision in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd.[9], and on the decision of this Court in Tremblay v. La Commission des Relations de Travail du Québec[10].

The Court of Appeal answered the first question as follows (p. 291, par. 27):

Obviously, the jurisdiction conferred on the Board does not ‘broadly conform to the type of jurisdiction exercised by the Superior, District or County Courts’.

Turning to the second question, the Court accepts, for the purposes of its decision, that a cease and desist order is in substance similar to an injunction in the matter of labour law (p. 292, par. 32). It then adds that if today an injunction in such matters is a procedure to which the parties regularly have recourse in the superior courts, this was not the case in 1867. Hence it concludes:

It requires a further leap in logic to find that the courts in 1867 had jurisdiction in such matters, a leap which I fear fails.

The Court clarifies its opinion by pointing out that, at the time of Confederation, unions were illegal organizations and an injunction of the modern sort was unheard of in cases of labour conflicts.

For these reasons, of which I have given a general outline, the Court of Appeal concluded that the constitutional argument was unfounded

[Page 131]

and had to fail. Having already expressed my disagreement with this conclusion, I shall now explain it.

My disagreement with the decision of the Court of Appeal does not rest on the first aspect of its analysis. As an institution, the Labour Relations Board of Nova Scotia is not a tribunal that corresponds to the description of those mentioned in s. 96 of the Constitution. However, the question that has been referred to this Court is not really concerned with this general aspect; appellant is only challenging s. 49 of the Act. We must therefore examine the function conferred on the Board by this section. This function must clearly be assessed within its own institutional framework. Accordingly, we must consider the second question dealt with by the Court of Appeal.

On this point my views are as follows:

(a) the power vested in the Board under s. 49 to issue an order to cease and desist is in substance a power to issue an injunction;

(b) such a power, by its nature, is vested in the superior courts referred to in s. 96 and may not be conferred on a body the members of which are not appointed in the manner provided in that section, even though the particular type of injunction, in this case an injunction in labour law, was unknown in 1867.

I

The similarity between the nature of the order concerned here and the injunction is apparent in the very words used by the Board:

THEREFORE, the Labour Relations Board (Nova Scotia) does hereby order the Labourers’ International Union of North America, Local 1115, and Alex Tomko, Business Agent, Labourers’ International Union of North America, Local 1115, to forthwith cease and desist from causing and condoning the illegal work stoppage;

AND the Board further orders that Alex Tomko, Business Agent, Labourers’ International Union of North America, Local 1115, direct all employees, members of the Labourers’ International Union of North America, Local 1115, who are participating in the illegal work stoppage to return to work forthwith.

[Page 132]

I see no substantial difference between this order and the injunction considered and upheld by this Court in International Brotherhood of Electrical Workers v. Winnipeg Builders’ Exchange[11]. In my opinion, the following excerpts from the reasons of Cartwright J., as he then was, speaking for the Court, reveal the characteristics of an injunction, characteristics which to my mind are exactly those of the order made in the case at bar. After citing Freedman J., as he then was, Cartwright J. continues (at p. 639):

In these passages the learned Justice of Appeal appears to me to enunciate as a principle of law that when a group of employees engage in concert in an illegal strike, forbidden alike by statute and by the terms of the collective agreement by which their employment is governed, the courts must not enjoin them from continuing the strike; that the employer must resort to forms of redress other than an application for an injunction.

The question which we are called upon to decide is whether the principle so enunciated is a correct statement of the law. In my respectful opinion it is not.

There is no doubt that it has been repeatedly held in cases of high authority that the courts will not issue an injunction if it will result in the enforcement in specie of a contract not otherwise specifically enforceable and that a contract for personal services such as an agreement for hiring and service constituting the common relation of master and servant will not be specifically enforced.

Some lines later, Cartwright J. adds (at p. 640):

One of the main purposes of The Labour Relations Act, R.S.M. 1954, c. 132, is to achieve and maintain harmonious relations between employers and employees and to avoid the loss caused to the parties directly involved and to the public at large by work stoppages caused either by strikes or lockouts. Procedure is provided for arriving at collective agreements. A collective agreement duly entered into is made binding upon the employer and upon every employee in the unit for which the bargaining agent has been certified, s. 18(1). During the term of a collective agreement the employer is forbidden to declare or cause a lockout, s. 22(1)(a), and employees are forbidden to go on strike, s. 22(1)(b). Attention has already been called to the fact that under the terms of the collective agreements existing in the case at bar it

[Page 133]

was expressly provided that there should be no strike during the life of the agreements.

In my view the purposes of the Labour Relations Act would be in large measure defeated if the Court were to say that it is powerless to restrain the continuation of a strike engaged in in indirect violation of the terms of a collective agreement binding on the striking employees and in breach of the express provisions of the Act. The ratio of such decisions as Lumley v. Wagner, supra, does not, in my opinion, require us so to hold. There is a real difference between saying to one individual that he must go on working for another individual and saying to a group bound by a collective agreement that they must not take concerted action to break this contract and to disobey the statute law of the province.

In my view, these passages could be applied word for word to the Board’s order and the situation that it endeavours to correct.

Strictly by way of illustration, art. 751 of the Code of Civil Procedure of the Province of Quebec should be cited here.

An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

To try to make out, as respondents do, that a cease and desist order is not an injunction because the former is not equipped with the classical procedural features of the latter, is to lose sight of the very wording of the Act. Section 49(8) describes the consequences of the order:

An interim order in accordance with subsection (3) or decision of the Board in accordance with subsection (5) shall have the force and effect of law and shall be binding upon and govern the persons involved in or affected by acts contrary to Section 48 and shall bind and govern any person named in the interim order or decision.

Furthermore, in the search for the substance of the procedure prescribed by s. 49, respondents’ approach gives undue importance to something that is only secondary.

[Page 134]

A more serious aspect of respondents’ argument is their tacit reliance on a dynamic interpretation of s. 92 of the Constitution and a static reading of s. 96. It goes without saying that this is a mistake, since the entire Constitution must be given a dynamic interpretation. If the jurisdiction of the inferior courts was not forever fixed as at the time of Confederation (cf. Reference on the Constitutionality of the Act respecting the jurisdiction of the Magistrate’s Court[12], at p. 782), neither was that of the superior courts. In my view, this is the meaning that must be ascribed to the following paragraph from the reasons of Fauteux C.J., speaking for the Court, in Séminaire de Chicoutimi v. La Cité de Chicoutimi[13], at p. 686:

The question presented in the case at bar is whether the jurisdiction conferred by the provisions of s. 42 of 13 George VI, c. 59, and s. 411 of the Cities and Towns Act R.S.Q. 1964, c. 193, is, in a general way, in conformity with the kind of jurisdiction exercised in 1867 by the courts of summary jurisdiction, rather than with the kind of jurisdiction exercised by the courts described in s. 96 (In Re Adoption Act Reference, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, [1949] A.C. 134).

II

This situation leads to consideration of the second point. The Court of Appeal approached it as though it raised a single question: was the exact function of s. 49, namely the issue of an order for an injunction in the area of labour law, known in 1867, and if so, to what jurisdiction (s. 96 courts or others) was this function ascribed? With respect, in my opinion this is an oversimplification of the problem. To my mind, the solution lies elsewhere and the relevant principles are the following:

(1) the year 1867 is not a magic date; it is useful in so far as it serves as a reference point in time;

(2) if the function was, in fact, known at the time of Confederation, we need only seek to discover which court exercised it;

[Page 135]

(3) if the function was unknown at the time, it can still come within the framework of s. 96 of the Constitution; the nature of the function must then be determined;

(a) either this nature forces us to conclude that the jurisdiction must be exercised by a s. 96 court or, conversely, that it may be exercised by another court;

(b) or this nature alone does not provide the solution, in which case we must weigh the various factors enabling us to determine whether this function is, in a general way, in conformity with the kind of jurisdiction exercised in 1867, either by the inferior courts or the superior courts; as part of this analysis which, must I repeat it again, is to be made in a general manner, several factors, including the following, must be studied:

(i) is the jurisdiction merely an appendage to the administrative function, and necessary to the exercise of the latter?

(ii) is the administrative function dependent on the discretion of the state (as mentioned in Tremblay v. La Commission des Relations de Travail du Québec, infra)?

(iii) can this administrative decision be corrected by a proceeding in the ordinary courts (as mentioned in Brooks v. Pavlick, infra)?

It goes without saying that the question cannot be studied without reference to O. Martineau and Sons, Limited v. City of Montreal[14]; Toronto Corporation v. York Corporation[15]; In Re Adoption Act Reference[16]; and Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., cited above. However, there seems no need to reproduce passages from them here. Each decision must be read in light of the question under study, and any expression of an opinion out of this context, however deserving of respect it may be, does not carry the same weight as it would if it were essential to the conclusion. As an example, in John East Iron

[Page 136]

Works Ltd., the only issue was whether s. 5(e) of the Saskatchewan Trade Union Act, enabling the Labour Relations Board of that province to issue an order compelling the employer to reinstate an employee, was a judicial power belonging exclusively to a s. 96 court; the Lords—and I make this observation with all due respect—far overstepped these bounds.

It is against the backdrop of these classic cases that this Court, as the final adjudicator in constitutional matters, has been asked on several occasions to make a decision on the application of s. 96 of the Constitution. In view of the importance of the issue, I should like to cite several long extracts from these decisions, which to my mind support the principles stated above. In each case, the emphasis will be mine.

Johnson v. The Attorney General of Alberta[17], is the first decision in point of time. While the matter with which we are concerned was only examined by the three dissenting judges, it is enlightening to read the observations of Kerwin J., as he then was, speaking for himself and Taschereau J., as he then was, with reference to the jurisdiction of justices of the peace in Alberta (at p. 134):

This jurisdiction broadly conforms to a type generally exercisable by Courts of summary jurisdiction.

Estey J. expresses this same idea when he writes (at p. 147):

That does not appear to be different in character from that which justices of the peace were called upon to decide both prior to and since Confederation.

In The Corporation of the City of Toronto v. Olympia Edward Recreation Club Ltd.[18], it was held that while the Court of Revision (in the matter of assessment) was a validly established administrative organ, it could not decide whether a piece of property was personal or real since, as

[Page 137]

Kerwin C.J., speaking for himself and Taschereau J., as he then was, said (at p. 457):

… the jurisdiction conferred by the Assessment Act on the various appellate tribunals “broadly conforms to the type of jurisdiction exercised by the Superior, District or County Courts.

In this decision, it was pointed out that historically such a jurisdiction existed in the superior courts from before Confederation.

In 1958 came Dupont v. Inglis[19], in which Rand J. expressed the unanimous opinion of the nine members of the Court. After sketching the history of the Mining Act, pointing out that it relates mainly to the administration of provincial Crown lands and referring to s. 129 of the Constitution, he concluded (at p. 541):

Within this continuity was the Gold Mining Act; and the function of deciding the sufficiency of compliance with the statutory requirements, as, for example, of staking, by the officer, was either an integral part of the rights arising, or, if of a judicial character, of a type not then exercised by the superior Courts.

On the next page, he clarified his thinking in an oft-cited paragraph (at p. 542):

The interpretation of s. 96 has been authoritatively given by this Court in Re The Adoption Act and other Statutes [1938] S.C.R. 398, and by the Judicial Committee in O. Martineau and Sons, Limited v. City of Montreal et al. [1932] A.C. 113, and in Labour Relations Board v. John East Iron Works, Limited et al., supra. The Province, under its authority over the administration of justice, including the establishment of Courts, may and is in duty bound to maintain judicial tribunals and define their jurisdiction. The restriction of s. 96 and ss. 99 and 100, provisions vital to the judicature of Canada, is confined to Courts endowed with jurisdiction conforming broadly to the type of that exercised in 1867 by the Courts mentioned in the section or tribunals analogous to them. A distinction is here necessary between the character of a tribunal and the type of judicial power, if any, exercised by it. If in essence an administrative organ is created as in Toronto Corporation v. York Corporation [1938] A.C. 415, there may be a question whether provincial legislation has purported to confer upon it judicial power belonging

[Page 138]

exclusively to Courts within s. 96. Judicial power not of that type, such as that exercised by inferior Courts, can be conferred on a provincial tribunal whatever its primary character; and where the administrative is intermixed with ultra vires judicial power, the further question arises of severability between what is valid and what invalid.

Subsequently, in The Attorney General for Ontario and Display Service Company Limited v. Victoria Medical Building Limited[20], the issue was whether the Master of the Supreme Court of Ontario could be empowered by the legislature to hear actions on liens. Kerwin C.J. summarized his thinking at p. 38:

Notwithstanding the fact that mechanics’ liens were unknown at the time of Confederation, my view is that Pomeroy correctly stated the nature of the action given by The Mechanics’ Lien Act and that to apply the test set forth in the Labour Relations Board case the jurisdiction conferred upon the Master by subs. (1) of s. 31 of The Mechanics’ Lien Act broadly conforms to the type of jurisdiction exercised by the Superior, District or County Courts at Confederation.

On his part, Judson J. begins by restating the problem (at p. 40):

The issue is, therefore, a very narrow one, the appointing power expressed in s. 96 being raised as a barrier against an attempted provincial distribution of function within the Court itself. The function in question is obviously judicial in character and is being exercised by an officer of one of the Courts mentioned in s. 96. The ratio of the judgment under appeal may be briefly stated in these terms: The Master, who is a judicial officer of the provincial Supreme Court, cannot be given this judicial power by s. 31(1) of The Mechanics’ Lien Act because he then has a jurisdiction which ‘broadly conforms to the type of jurisdiction’ exercised by those judges named in s. 96 of the British North America Act. This is said to be so even though The Mechanics’ Lien Act creates entirely new rights, unknown either at common law or in equity because it gives the Master, as the trial officer, unlimited authority over all those matters covered by the Act, many of which are normally to be found within the jurisdiction of a Superior Court

[Page 139]

judge. Lastly, the judgment denies any analogy which might save the legislation between the position of the Master exercising delegated jurisdiction under an order of reference made by a judge pursuant to The Judicature Act and his position in exercising original jurisdiction under s. 31(1) of The Mechanics’ Lien Act.

His conclusion (at p. 42) reads as follows:

This is a very wide departure from the work usually assigned to the Master. This legislation makes him a judge in this particular type of action, which is essentially one for the enforcement of a statutory charge on the interest in the land of the person who is defined as the owner. The constituent elements of the jurisdiction are fully analysed in the reasons of the Court of Appeal. In addition to the matters mentioned in s. 32(1) and the enforcement of the charge itself, they comprise unlimited monetary claims, the power to appoint an interim receiver of the rents and profits of the land or a trustee to manage and sell the property and the power to make a vesting order in the purchaser and an order for possession. All these functions are exercised in an original way and constitute a new type of jurisdiction for the Master which in many aspects is not merely analogous to that exercised by a s. 96 judge but is, in fact, that very jurisdiction, limited only to one particular field of litigation. While it is true that the Master’s jurisdiction is very varied in character, it is, I think, largely concerned with preliminary matters and proceedings in an action, necessary to enable the case to be heard, and with matters that are referred to that office under a judge’s order. There is no inherent jurisdiction in the office as there is in the office of a Superior Court judge. I am content to adopt the judgment of Harvey C.J.A. in Poison Iron Works v. Munns (1915), 24 D.L.R. 18, for its account of the historical origins of the office and the broad outlines of the jurisdiction, and it is sufficient to say that everything the Master does must be authorized by the Rules of Practice, The Judicature Act or some other statute. This does not mean, however, that the Legislature can assign any and all work to him. Section 96 operates as a limiting factor. If this were not so, there would be nothing to prevent the withdrawal of any judicial function from a s. 96 appointee and its assignment to the Master.

[Page 140]

In Farrell v. Workmen’s Compensation Board[21], appellant, appearing before this Court, had waived challenging the very existence of the Board on the basis of s. 96 of the Constitution. However, in light of certain arguments submitted by appellant, Judson J. wrote (at p. 52):

The restrictions on the legislative power of the province to confer jurisdiction on boards must be derived by implication from the provisions of s. 96 of the British North America Act. Short of an infringement of this section, if the legislation is otherwise within the provincial power, there is no constitutional rule against the enactment of s. 76(1).

This brings us to Heller v. The Registrar, Vancouver Land Registration District[22], in which the Court, through Martland J., said (at p. 235):

In my opinion, it is no part of the function of a Registrar, under this section, to adjudicate upon contested rights of parties, for the determination of which it would be necessary for him to hear, receive and weigh evidence. He can only act upon the material which is before him in Ms own records.

I realize that the provisions of para. (c) of s. 256 may appear to be inconsistent with this conclusion. That paragraph relates to a situation where ‘any registration, instrument, entry, memorandum, or endorsement was fraudulently or wrongfully obtained’. If, however, these words were to be construed in their widest sense, so as to enable a Registrar to act, under the section, upon evidence submitted to him upon which he could make a finding of fraud, I would have grave doubts as to whether this provision could be held to be intra vires of the Legislature of British Columbia. So construed, the Registrar would be clothed with an original jurisdiction to determine questions of title to land in relation to which fraud had been alleged (Attorney-General for Ontario and Display Service Co. Ltd. v. Victoria Medical Building Ltd. et al. [1960] S.C.R. 32).

In Brooks v. Pavlick[23], the question arose as to whether the Master of Titles had the right to

[Page 141]

decide who was entitled to registration. This jurisdiction was held to be valid. Spence J., speaking for the Court, first pointed out the nature of this jurisdiction (at p. 114):

The Master of Title’s jurisdiction is limited to the consideration and determination of what documents should be registered upon the title and therefore who should have the protection of the guaranteed title and the right to claim on the Assurance Fund. When the master of titles determines an application for first registration in favour of the applicant the effect of s. 9 (now s. 52) is to give to the first registered owner a fee simple but, despite the very positive words of that section, the register may be rectified by a procedure in the ordinary courts under s. 119 (now s. 169). The objections which the Master ‘has jurisdiction to hear and determine’ (s. 21, para. (2) now s. 44) are objections to the Master’s acceptance of a document for registration.

and then concluded (at p. 115):

I am of the view that the jurisdiction conferred upon the Master of Titles by the provisions of The Land Titles Act of Ontario is, therefore, quite unlike the jurisdiction conferred on the Master of the Supreme Court by The Mechanics’ Lien Act of Ontario considered in the Display Service case, supra. There, as I have pointed out, the Court found that jurisdiction was not merely analogous to the jurisdiction of that exercised by s. 96 but in fact that very jurisdiction. Under The Land Titles Act, the Master of Titles has a jurisdiction to determine whether an application for first registration under the Act should be granted and that jurisdiction was not exercised by any officer whatsoever prior to Confederation as the scheme of registration of titles did not exist in Ontario before 1885 and any judicial determinations he makes are merely necessarily incidental to the discharge of those duties which, therefore, are not analogous to those of a Superior, District, or County Court.

It should be noted that the Court was dealing with a jurisdiction unknown in 1867, since the first relevant statute dates from 1885.

The question can be further elucidated by considering The Attorney General of British

[Page 142]

Columbia v. McKenzie[24], in which Ritchie J., speaking for the majority of his brother judges, wrote (at p. 497):

With the greatest respect, it appears to me that the present legislation is not concerned with conferring jurisdiction “upon persons” but with defining the jurisdiction of courts. The distinction between a provincial legislature conferring jurisdiction upon courts presided over by provincially appointed officials on the one hand and upon courts to which the Governor-General has appointed judges on the other hand, is that in the former case the provincially appointed official is excluded by reason of the origin of his appointment from exercising jurisdiction broadly conforming to the type exercised by superior, district or county courts, (see In re The Adoption Act [1938] S.C.R. 398, In re Labour Relations Board of Saskatchewan v. John East Iron Works [1949] A.C. 134, and Attorney General for Ontario and Display Services Company Limited v. Victoria Medical Building Limited [1960] S.C.R. 32), whereas it is within the exclusive power of the provincial legislature to define the jurisdiction of provincial courts presided over by federally appointed judges,…

Concerning the Reference on the Constitutionality of the Act respecting the jurisdiction of the Magistrate’s Court[25], I would refer to an excerpt from p. 781 of the reasons of Fauteux J., as he then was, speaking for the Court:

[TRANSLATION] In concluding these observations on the true scope of the question submitted by the Executive Council it should be added that, with all the jurisdiction conferred upon it by provincial statutes, the Magistrate’s Court may have become a court within the meaning of or analoguous to those described in s. 96 of the imperial statute, and that, as a result, the Act under study would be ultra vires the legislature in so far as the judges of the Court referred to in the Act are not appointed in accordance with this section. It is also possible that, because of the subject-matter over which the Magistrate’s Court is given jurisdiction, such as injunctions, for example, some of these statutes are ultra vires the legislature in so far as the judges of the Court contemplated by these statutes are not appointed in accordance with s. 96. These are questions which do not lie within the frame of this reference, and consequently we cannot answer them in the case at bar.

I have already noted that the Court of Appeal referred to Tremblay v. La Commission des Rela-

[Page 143]

tions de Travail du Québec. With respect, I do not think that this decision has the significance attributed to it. The real question and its solution are explained by Abbott J. at p. 701:

As I have said, the narrow question in issue here is whether the Board, in ordering the dissolution of an association which has been given corporate status under the Professional Syndicates Act, is exercising a jurisdiction which belongs exclusively to a s. 96 Court.

The Professional Syndicates Act authorizes groups of employers and employees to form an association or professional syndicate and s. 6 states that such groups shall have as their object ‘the study, defence and promotion of the economic, social and moral interests of their members’. The Provincial Secretary is empowered, at his discretion, upon compliance with the requirements of the statute, to grant corporate status to such bodies. Their powers, however, are limited and they are subject to the control and supervision of the Provincial Secretary. The status and related privileges are conferred, primarily, for the purpose of promoting employer and employee agreements by the process of collective bargaining.

A few lines later, Abbott J. adds:

The power given to the Board under s. 50 is a limited and discretionary power. It is purely incidental to the accomplishment of one of the primary purposes for which the association was granted corporate status, namely the maintenance of industrial peace.

Hence, it is within this narrow framework

(a) of the discretion of the provincial secretary at the time of incorporation of the syndicate,

(b) of the granting to the syndicate of limited powers, subject to the control of the provincial secretary,

(c) of a delegation of this control to the Board, as purely incidental to the accomplishment of its purpose,

that the decision must be read. Since the nature of the purpose was not per se conclusive, the Court studied its characteristics and concluded that the Board had not received “judicial powers that can be exercised only by a superior, district or county

[Page 144]

court within the meaning of s. 96 of the British North America Act” (at p. 702).

The final relevant decision was Séminaire de Chicoutimi v. La Cité de Chicoutimi in 1972, cited above. To my previous reference, I would add the following (at p. 686):

On the constitutionality aspect, the problem in the case at bar derives from combining these provisions of the British North America Act which, on the one hand, confer exclusive jurisdiction on the province over the Administration of Justice in the province, including the Constitution, Maintenance and Organization of Provincial Courts and—apart from the exception laid down by s. 96—the power to appoint judges to these courts, and, on the other hand, confer on the central government the exclusive power of appointing

… the judges of the Superior, District and County Courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

Consequently, therefore, this provision in s. 96 implicitly denies the provinces the power of bestowing upon those courts which are presided over by judges they appoint the jurisdiction of the courts described in this section. (Toronto Corporation v. York Corporation, [1938] A.C. 415; The Attorney General for Ontario v. Victoria Medical Building Limited, [1960] S.C.R. 32.)

At the end of his analysis Fauteux C.J., speaking for his brother judges, concludes (at p. 692):

For these reasons and those given in the judgment appealed from, 1 would therefore hold that the jurisdiction conferred by the legislative provisions the constitutionality of which is now being challenged is not, in a general way, in conformity with the kind of jurisdiction exercised in 1867 by the courts of summary jurisdiction, but conforms rather to the kind of jurisdiction exercised by the courts described in s. 96.

III

I must now summarize my reasoning.

The institution known as the Labour Relations Board of Nova Scotia is not a s. 96 court as such. Furthermore, neither appellant nor the Attorney General of Canada claims that it is. However, under s. 49 of the Trade Union Act, this institution was given a function to perform which, by its nature, belongs to the courts described in s. 96. I

[Page 145]

can see no substantial difference between an injunction and a cease and desist order.

Even if we were to go one step further (which, in my opinion, is unnecessary), and ask whether the function vested in the Board by s. 49 of the Trade Union Act is, in a general way, a jurisdiction of a kind exercised in 1867 by the inferior courts or the superior courts, I would not hesitate to choose the second alternative. One need only point out that

(a) the power to issue orders is not incidental to the administrative function conferred on the Board, since the latter operated until 1968 without this power and the ordinary courts still have a parallel jurisdiction today;

(b) it is inconceivable to view this as an aspect of the discretionary power of the State;

(c) apart from this parallel jurisdiction which I have just mentioned, the ordinary courts have no power of review, except perhaps through prerogative writs.

In this analysis I have not lost sight of the socio-economic arguments advanced by respondents. It should be remembered that this socio-economic aspect existed to varying degrees in each of the cases considered by the courts, but this did not prevent them from holding that certain legislative provisions were ultra vires. This aspect is only one of several factors. It goes without saying that it would not provide a valid basis for setting aside the arrangement stated by s. 96 of the Constitution.

Any other interpretation would be tantamount to abolishing the jurisdiction of the s. 96 courts sooner or later. Whatever the operational advantages of gradually drawing all judicial power under the roof of the courts whose members are appointed by the provinces, (and this is a question on which I express no opinion), this is not the criterion which must guide our deliberations. We must interpret the Constitution, not rewrite it.

For these reasons, I would allow the appeal and grant the motions for certiori and prohibition, with

[Page 146]

costs in all Courts, but not including the intervenors’ costs.

Appeal dismissed with costs, DE GRANDPRÉ J. dissenting.

Solicitor for the appellant: Joel E. Pink, Halifax.

Solicitor for the respondents, Labour Relations Board (N.S.), John F. MacDonald, Donald C. MacNeil and the Attorney General of Nova Scotia: J.W. Kavanagh, Halifax.

Solicitor for the respondent, Canatom Mon-Max: D. Merlin Nunn, Halifax.