Bibeault v. McCaffrey

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Labour relations—Investigation into definition of bargaining unit—Employees included in the bargaining unit denied right to be present and to be heard by labour commissioners—Writ of evocation—Whether employees interested parties—Code of Civil Procedure, art. 846—Labour Code, R.S.Q. 1977, c. C-27 (as amended by 1977 (Que.), c. 41), ss. 25, 28, 32, 39, 43, 59, 118, 129, 131; formerly R.S.Q. 1964, c. 141 as amended, ss. 22, 24a, 24e, 30, 34, 47, 103, 106, 108.

Administrative law—Judicial review—Employees denied by Labour Court and labour commissioners the right to be heard at the inquiry regarding the description of the bargaining unit—Appeals brought by two labour commissioners, the Labour Court, and one of its judges—Locus standi.

These appeals are to determine whether s. 32 of the Quebec Labour Code recognizes that employees included in the bargaining unit for which a union is seeking certification have the status of interested parties at an investigation by the labour commissioner into the definition of the bargaining units.

In the first case, a labour commissioner refused to hear respondent McCaffrey or to allow him to examine and cross-examine witnesses, or even to attend the hearing regarding the description of the bargaining unit. The Labour Court affirmed the decision of the commissioner and his interpretation of s. 32, holding that the wording of that section does not give an employee the status of an interested party or the right to be present. Alleging an excess of jurisdiction and a failure to observe the audi alteram partem rule, respondent then took the case to the Superior Court, which authorized a writ of evocation to be issued against the decision of the commissioner and the Labour Court. The Court of Appeal affirmed the judgment of the Superior Court. The commissioner, the Labour Court and its judge appealed from this decision.

In the second case respondents Carrier and Allard, following the refusal of the labour commissioner to hear them, went directly to the Superior Court, making the same arguments as above, but the latter dismissed their application for a writ of evocation. The Court of Appeal, basing itself on its earlier judgment, reversed the judgment of the Superior Court and authorized the writ to be issued. The commissioner and the employee associa-

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tion, in two separate appeals, appealed from this decision.

Held: The appeals should be allowed.

An employee is not an interested party in respect of the description of the bargaining unit for the purposes of the commissioner’s investigation preceding the granting of certification to an employee association. According to the principles of administrative law, in the absence of any provision to the contrary any interested party generally has a right to present his arguments and to be present at a hearing. By specifying in s. 32 of the Code in whose presence the investigation of a bargaining unit should be held—namely, in the presence of the “associations concerned” and of “the employer”—the legislator indicated his intent to divest the employee of the status of an interested party. This interpretation is indeed the most coherent and logical, in light of the legislative context and the general purport of the Code. This is therefore a case in which the issuance of writs of evocation should be refused, since the decision of the commissioners and the Labour Court, protected by a privative clause, was based on an interpretation of s. 32 which was not manifestly unreasonable. Finally, the Labour Court, its judge and the commissioners were entitled to appeal. The excess of jurisdiction alleged in the case at bar is of the kind which the decisions of this Court have recognized as conferring on them the necessary interest to be appellants.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Air-Care Ltd. v. United Steel Workers of America, [1976] 1 S.C.R. 2; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722; Labour Relations Board of New Brunswick v. Eastern Bakeries Ltd., [1961] S.C.R. 72; Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd., [1947] S.C.R. 336; International Association of Machinists v. Genaire Ltd. (1958), 18 D.L.R. (2d) 588, referred to.

APPEAL from a judgment of the Quebec Court of Appeal, [1981] C.A. 406, affirming a judgment of the Superior Court[1] authorizing a writ of evocation to be issued. Appeal allowed.

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APPEALS from a judgment of the Quebec Court of Appeal[2] setting aside a judgment of the Superior Court, [1981] C.S. 80, refusing to issue a writ of evocation. Appeals allowed.

Louis Crête, for the appellants Bibeault and Vassart.

Robert P. Gagnon, for the appellant and mis en cause L’Association des employés de La Laurentienne.

H. Laddie Schnaiberg, Q.C., for the respondents McCaffrey, Carrier and Allard.

English version of the judgment of the Court delivered by

LAMER J.—This case concerns three appeals from judgments of the Court of Appeal of Quebec, the effect of which was to authorize the issuance of writs of evocation to the Labour Court and to one of its judges. Although it relates to two separate cases, the question raised is the same except for a few minor details.

Following an application for certification made by an association, a commissioner undertook an investigation in each case into the representative nature of the union and the definition of the proposed bargaining units. One or more employees wished to make oral representations at the investigation, to call witnesses and to cross-examine other parties’ witnesses regarding the definition of the bargaining unit. The commissioner refused this request, and in one case also prohibited the employee, Mr. McCaffrey, and his counsel, from attending that part of the investigation. In both cases under consideration, the commissioners based their decisions on s. 32 of the Labour Code (for the sake of convenience, I will use the current numbering), which reads as follows:

32. After an investigation, the labour commissioner seized of the matter shall decide as to the representative nature of the petitioning association. He shall also settle, after an investigation held in the presence of every association concerned and the employer, any matter relating to the bargaining unit and the persons contemplated by it.

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Only an employee included in the bargaining unit, or an interested association of employees shall be deemed an interested party as regards the representative character of an association of employees.

However, the two cases came to this Court by different routes.

In Bibeault and Brière v. McCaffrey (hereinafter called the N.D.G. Meat Market case), respondent McCaffrey, an employee of N.D.G. Meat Market Ltd., first appealed from this decision to the Labour Court as provided in s. 118 of the Code.

Judge Brière of the Labour Court affirmed the decision of commissioner Real Bibeault certifying the petitioning union and his description of the bargaining unit, and gave to s. 32 L.C. the same interpretation as that given by the commissioner.

Relying both on the wording of s. 32 and on the general purport of the Code, Judge Brière refused to recognize the employee as an “interested party”, or as having the right to be present, since the Code does not require the commissioner to hold his investigation in public, as is the case with the Labour Court. He concluded that the audi alteram partem rule had not been infringed, as follows:

[TRANSLATION] In any case, contrary to the allegations of appellant, the commissioner did not thereby infringe the audi alteram partem rule, since the legislator has not conferred the status of an interested party in any matter relating to the bargaining unit on an employee individually, though he may in fact be affected by such a matter, and this has undoubtedly been done in order to avoid the proliferation of such interventions and unnecessary complication of the commissioner’s administrative function in deciding on the appropriate bargaining unit: the participation of the employer and of any employee association concerned has been held to be sufficient.

McCaffrey took the case to the Superior Court by a motion for a writ of evocation, alleging that the commissioner had infringed the audi alteram partem rule, thereby exceeding his jurisdiction. McCaffrey further alleged that the commissioner had exceeded his jurisdiction by his refusal to exercise it, in not ordering that a vote be held

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based on proof of irregularities connected with the signing of their membership cards by certain members of the unit. (This argument was not raised in this Court.)

McCaffrey further argued that the Labour Court and its judge had lost jurisdiction for refusing to exercise it, in not setting aside the decision of the commissioner on these points, and added that the Court and the judge had lost jurisdiction by rendering judgment some thirteen months after the end of the hearing, thereby contravening s. 131 L.C., which provides that the judgment must be rendered within fifteen days.

Paradis J. of the Superior Court allowed this motion as follows:

[TRANSLATION] This provision requires the commissioner to proceed on matters relating to the bargaining unit in the presence of any association concerned and of the employer, but does not exclude anyone else. Manifestly, anyone who has an interest should be heard, and to proceed disregarding this rule constitutes a serious irregularity and abuse of power which leads me to conclude that justice was not done.

It may be concluded from this passage in his reasons that he considered that the investigation should be public and that McCaffrey and his counsel were entitled to be present at the hearing just as any other person might be; also, that McCaffrey is an “interested party” in this part of the commissioner’s investigation, and as such had the right not only to be present but to be heard as well.

The Court of Appeal of Quebec, [1981] C.A. 406, upheld the decision of Paradis J., relying essentially on the same reasons, though in a more elaborate form.

In the two appeals Vassart v. Carrier and Allard and L’Association des employés de La Laurentienne v. Carrier and Allard, respondents Carrier and Allard, two employees of La Laurentienne, elected when denied a hearing to go directly to the Superior Court by a motion for a writ of evocation, without waiting for the rest of the hearing and a decision on the merits, alleging a violation of the audi alteram partem rule by commissioner Vassart.

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Gonthier J. of the Superior Court, [1981] C.S. 80, dismissed their motion. Without ruling expressly on the question of whether an employee is, regarding the definition of a bargaining unit, an “interested party” within the meaning of s. 32 L.C., Gonthier J. stated that in his opinion, in any case, only “associations concerned” and “the employer”, and no others, be they interested parties or not, had a right to be present at this stage and participate in this aspect of the hearing before the labour commissioner.

Analysing section 32 L.C., he said the following (at pp. 81-82):

[TRANSLATION] According to this section, the labour commissioner must decide two questions, namely the representative nature of the petitioning association and the bargaining unit. The parties interested in each of these questions are not the same. The employer is excluded as an interested party in the representative nature, but included with regard to any matter relating to the bargaining unit, since the investigation must necessarily be held in his presence. Any employee association concerned or interested is specifically included in both cases. An employee included in the bargaining unit is expressly regarded as an interested party so far as the representative nature is concerned, but is not mentioned in connection with any matter relating to the bargaining unit.

The provisions also differ as to the hearing. No mention of it is made in relation to the representative nature, undoubtedly because the status of interested party carries with it the right to be heard in the absence of any provision to the contrary.

No definition is given of interested parties in respect of the bargaining unit. On the other hand, there is a specific provision as to the parties who are entitled to be present at the investigation, that is every association concerned and the employer. The issue turns on the scope of the latter provision.

In its literal sense, this provision gives the right to be present to every association concerned and the employer, on any matter relating to the bargaining unit and the persons contemplated by it. It does not exclude the presence of other persons, nor does it exclude the possibility that other persons may be interested, but it does not give them a right to be present.

Taken in its literal sense, therefore, this provision contemplates a hearing in which the employer and one or more employee associations will be represented. This

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is consistent with other provisions of the Labour Code, in particular:

(1) Section 28(a) provides that if the certification agent comes to the conclusion that the association has the representative character required, and if he ascertains that there is agreement between the employer and the association on the bargaining unit and the persons contemplated by it, he must certify it immediately, and indicate which group of employees constitutes the bargaining unit. Under section 28(c), the same rule applies if the employer refuses his agreement but neglects or refuses to communicate the reasons for his disagreement within ten days of a request made to him to that effect by the certification agent. In such circumstances, the certification takes place without the employees being entitled to participate.

(2) According to section 28(d), if there is agreement between the employer and association on the bargaining unit but not on certain persons contemplated in the petition, the certification agent must also certify the association immediately for the bargaining unit applied for regardless of whether the persons in respect of whom there is no agreement are eventually, by the decision of the labour commissioner, included in the bargaining unit or excluded. This section specifically provides that disagreement as to certain persons contemplated shall not have the effect of preventing the making of a collective agreement.

(3) Section 39 provides another remedy, this time for any interested party, who may request the labour commissioner to decide whether a person is an employee or a member of an association, whether he is included in the bargaining unit and any other matters relating to certification.

(4) So far as an appeal from a decision of a labour commissioner is concerned, in the case of the description of a bargaining unit or the inclusion or exclusion of the persons contemplated by it, section 129 gives this right only to the employer, the certified association or any rival petitioning association, thus excluding any other interested person and excluding employees included in the bargaining unit, who nonetheless, also under section 129, expressly benefit from a right of appeal in matters respecting the refusal or granting of certification.

These other provisions undoubtedly do not determine who are interested parties before a labour commissioner or who is entitled to be present at his investigation. However, they disclose an intent by the legislator to limit the participation of employees in the discussion of a bargaining unit.

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It is true that the second sentence of section 32 does not state, like the last sentence of that section or section 129, that only the persons mentioned therein are contemplated. This suggests that the legislator did not necessarily exclude employees. However, the undersigned is of the opinion that by expressly conferring the right to be present on certain employees, he did not intend to confer the same right on any interested party. This is the literal meaning of the provision, in accordance with the expressio unius est exclusio alterius rule. This interpretation is consistent with the intention stated in sections 28 and 129 to limit the participation of other persons in the discussion of a bargaining unit and the persons included in it, and in the appeal from another remedy under section 39, which authorizes the making of decisions on individual rights of employees outside the investigation of a bargaining unit, and so without delaying it. It is also consistent with the intent of the legislator to promote the right of association and the certification of employee associations for the purpose of making collective agreements.

He concludes his judgment as follows (at p. 83):

[TRANSLATION] The undersigned accordingly concludes that the labour commissioner was not required to allow petitioners to participate in the hearing before him regarding matters relating to the bargaining unit and the persons contemplated by it, and that he is not required to summon them to such a hearing.

As this is a case of evocation and both the commissioners and the Labour Court are protected by a privative clause, it was unnecessary, in order to decide whether they exceeded their jurisdiction and whether to issue a writ, to find that their interpretation of s. 32 was the correct one, as Gonthier J. did. It would have been sufficient to conclude that this interpretation is not patently unreasonable (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382).

The complaint by the employees that the audi alteram partem rule has been infringed assumes that the law gives them the status of interested party and that, if so, it has not deprived them of the characteristics of that status. Such a finding is within the authority of the commissioners, and the

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latter, as a consequence of the privative clause, is immune from review by the superior courts unless it is patently unreasonable.

In my view, the decision of the commissioners and the Labour Court rests on an interpretation of s. 32 L.C. which is not patently unreasonable.

In fact, I agree with the conclusion by Gonthier J. and with his reasons, except in so far as they implicitly give the employee by implication the status of an interested party to whom the right to be present has been denied.

The legislative history of s. 32, quite apart from the question of whether an employee is an interested party, clearly indicates the intent of the legislator to exclude the employer from the first part of the investigation and the employee from the second. Until 1969 the Labour Code was silent regarding “interested parties” or the obligation to conduct the investigation in anyone’s presence.

At that time s. 28 of the Code read:

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.

In 1969, the legislator twice amended the wording, which became successively s. 24b of the Code (1969 (Que.), c. 47, s. 12) and then s. 24e of the same Code (1969 (Que.), c. 48, s. 14):

24b. The investigation commissioner shall have all the powers, immunities and privileges of a commissioner appointed under the Public Inquiry Commission Act; he shall have in particular the power to summon witnesses, to require the taking of oaths and administer the same, to compel any person to produce exhibits or documents in his possession and generally to perform any act necessary for the pursuit of his investigation.

After making an investigation on the premises respecting the petitioning association, the investigation

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commissioner shall decide as to its representative nature. After an investigation held in the presence of the association and the employer, he shall also settle any dispute relating to the bargaining unit and the persons contemplated by it.

As soon as he has terminated his investigation or at the latest within the three following days, the investigation commissioner shall render his decision either to grant or to refuse certification, and, should the case arise, shall describe the appropriate bargaining unit. Such decision shall be rendered in writing and shall state the reasons therefor. Certified true copies thereof must be sent to the association and to the employer.

The transcription of the stenographic notes of the investigation, or of the recording thereof on magnetic tape, the exhibits or documents produced and the decision of the investigation commissioner shall constitute the record of the investigation.

24e. After an investigation, the investigation commissioner seized of the matter shall decide as to the representative nature of the petitioning association. He shall also settle, after an investigation held in the presence of every association concerned and the employer, any matter relating to the bargaining unit and the persons contemplated by it.

Only an employee included in the bargaining unit, or an interested association of employees shall be deemed an interested party as regards the representative character of an association of employees.

By enacting s. 24b in 1969, the legislator for the first time divided the certification procedure in two: the representative nature and matters relating to the bargaining unit. Equally important, however, is the fact that for the first time he created an obligation for the commissioner to proceed “respecting the petitioning association” or “in the presence” of that association and the employer.

The list of parties to be consulted and to be present at the two stages of the investigation is an addition to s. 28, which made provision for no one, and the list was consequently exhaustive. The fact that the legislator sought a few months later to clearly exclude the employer and provide for participation by the employee in the first stage of the investigation, by a text which says this specifically (“only an employee… “) does not in any way alter the exhaustive nature of the list of persons to

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be present for the second stage of the investigation, which stayed the same and has done so until the present time.

While I agree with Gonthier J. as to the exhaustive nature of the list of those to be present at the investigation of a bargaining unit, I also agree with Judge Brière in saying that the right of an employee to be present was not provided for because he was not intended to be an “interested party”. In short, instead of saying that the employee is an interested party who has been refused the important right of being present, I would say that the refusal of this important right, in light of the general purport of the Code and the other rights of which he has been deprived, reflects the intent of the legislator to divest him of that status.

If employees were interested parties, the legislator would not have to specify in whose presence the investigation should be held. According to the principles of administrative law, in the absence of any provision to the contrary any interested party generally has a right to present his arguments and to be present at a hearing. It could hardly be argued, for example, that the commissioner could refuse to receive representations from employees as to the representative nature of the association. Nonetheless, section 32 does not specifically state that an investigation on this question should be held in their presence. The right to be present and to make representations is implicit in the status of an interested party.

If the employees were interested parties so far as the bargaining unit is concerned, s. 32 L.C. would confer on the commissioner the power to conduct his investigation into this question in the absence of one of the interested parties, which would be extraordinary to say the least. Employees, as interested parties, would be required to make their representations, where or how no one knows, without knowing what the associations and employers had said to the commissioner.

With respect, I consider that in this regard the Court of Appeal of Quebec erred in refusing to read the Act as a whole, and in construing s. 32 in isolation, without reference to the legislative context. As Professor P.–A. Côté observes in his book

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Interprétation des lois, 1982, Éditions. Yvon Biais Inc., at p. 256:

[TRANSLATION] …the law, which reflects the thinking of a rational legislator, is thereby deemed to be based on a consistent and logical approach and its interpreter must opt for whichever meaning of the provision confirms the postulate of a rational legislator, rather than the one which creates inconsistencies, illogicalities or antinomies in the law… the law is interpreted as a whole, each of its parts being regarded as fitting logically into the overall system formed by the law.

With reference to the legislative context, let us consider first s. 28 of the Labour Code. According to that section, the certification agent is authorized to certify an association once he ascertains that the bargaining unit is representative and that there is an agreement between the employer and the association as to the bargaining unit. It would be somewhat strange, if the employee were an “interested party”, for the certification agent to be able to disregard his position on definition of the bargaining unit and proceed with certification without obtaining his consent, or at least his opinion.

Moreover, how could an interested party have no right of appeal? If it were held that employees are “interested parties” on the question of the bargaining unit, the Code would not be consistent, since then it would in practice confer a right of appeal on this question only on parties whose presence was required by s. 32 L.C. (cf. s. 129(b) L.C.). A situation would result in which the Code for no reason placed certain interested parties in a less advantageous position than others, which could not be justified.

The only construction capable of placing the various parties on an equal footing so far as an appeal is concerned requires that s. 32 L.C. be read as conferring the status of an interested party as to the bargaining unit only on associations concerned and the employer, thus excluding employees inter alia.

I am not shaken in my conviction by those who argue, in support of the status of an interested party for employees, that s. 25 L.C. requires them to be informed when a petition of certification is

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filed. First, the fact that employees are not interested parties so far as the bargaining unit is concerned does not deprive them of that status in respect of the representative nature of an association: hence the requirement of notice. Such notice is also necessary to inform employees of the safeguarding of conditions of employment (s. 59) or, for example, of the possibility that certification of an existing association may be annulled (s. 43 L.C.).

Finally, it should be added that s. 39 L.C. should not be construed so as to avoid the effects of s. 32 L.C.

39. Of its own motion during its investigation and at any time upon request by an interested party, the labour commissioner may decide if a person is an employee or a member of an association, if he is included in the bargaining unit, and any other matters relating to certification.

In either case, the labour commissioner may request a certification agent to make an investigation. Such certification agent shall draw up a report of his findings and send it to the parties. If the parties accept in writing the report of the certification agent, the commissioner may decide on the basis of the investigator’s report alone without having to call the parties for a hearing.

In my opinion an employee is not an interested party in respect of the description of the bargaining unit for the purposes of the commissioner’s investigation preceding the granting of certification to an employee association, whether that investigation is conducted under s. 32 or s. 39 L.C. This clearly follows from the fact that an employee has no more right of appeal in respect of a bargaining unit description following a decision made pursuant to s. 39 than following such a decision pursuant to s. 32 L.C. To decide otherwise would create confusion and inconsistency in the application of the Code.

Of course, the foregoing should not be interpreted as designed to allow one party to obtain the amendment or annulment of a validly obtained certification by means of s. 39 L.C. I do not think it is necessary for the purposes of the appeals at bar to decide this question, or the interest of an

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employee under s. 39 L.C. when certification has been granted to an employee association.

In conclusion, an employee is not an interested party in respect of definition of the bargaining unit. The commissioner is not required to hold his investigation in his presence, although he may do so, or to allow him to intervene, call or cross-examine witnesses, or make representations.

Though raised as an argument in the Superior Court, the tardiness of the Labour Court in deciding in light of s. 131 L.C. was not raised in this Court. In any case, for the same reasons given in support of the decision of this Court in Air-Care Ltd. v. United Steel Workers of America, [1976] 1 S.C.R. 2, I consider that this argument should not succeed and justify the issuing of a writ in the N.D.G. Meat Market case.

In his submission and in the course of the hearing in this Court, counsel for the respondents challenged the right of the Labour Court, Judge Brière, a member of that Court, and commissioners Vassart and Bibeault to be appellants. In support of this argument, which sought to have two of these three appeals quashed, he relied on the fact that this Court does not recognize tribunals and their members as having a right to argue on appeal in support of their decisions or to appeal judgments reversing them, except to defend their jurisdiction; and that the concept of “jurisdiction” applied by this Court in this area is limited to powers as such, and does not include such losses of jurisdiction, inter alia, as result from infringing the principles of natural justice, as respondents alleged was the case here: a departure from the audi alteram partem rule (Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722; Labour Relations Board of New Brunswick v. Eastern Bakeries Ltd., [1961] S.C.R. 72; Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd., [1947] S.C.R. 336; International Association of Machinists v. Genaire Ltd. (1958), 18 D.L.R. (2d) 588).

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With respect, in my opinion this argument is incorrect, considering the real question raised by the claims of the employees. As I mentioned above, suggesting an infringement of the audi alteram partem rule in the case at bar postulates a patently unreasonable interpretation of s. 32 L.C. Such an interpretation by the commissioners, the judge or the Labour Court would in itself be an excess of jurisdiction of the kind recognized by the above-cited decisions of this Court as conferring on the employees the necessary interest (locus standi) to be appellants. In this sense the jurisdiction of commissioners Vassart and Bibeault, the Labour Court and Judge Brière is at issue. As their jurisdiction is disputed in this way, they are entitled to appeal in order to defend it.

I would therefore allow the three appeals, reverse the judgments of the Court of Appeal, dismiss the motion pursuant to art. 846 C.C.P. submitted to Paradis J., and restore the judgment of Gonthier J. dismissing the motion submitted to him. Only appellant L’Association des employés de La Laurentienne will be entitled to its costs, in all courts.

Appeals allowed.

[1] C.S. Mtl., No. 500-05-009 797-794, July 17, 1979.

[2] C.A. Mtl., No. 09-000349-811, September 17, 1981.