Canadian Broadcasting Corp. v. Canada (Labour Relations Board) [1995] 1 S.C.R. 157: Unfair labour practices -- Interference -- Justification -- CBC forcing journalist to choose between his position as union president and his position as radio host following publication of his article against free trade in union newspaper --- Standard of review -- Interpretation of external statute -- Standard of review applicable where administrative tribunal interprets external statute

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations -- Unfair labour practices -- Interference -- Justification -- CBC forcing journalist to choose between his position as union president and his position as radio host following publication of his article against free trade in union newspaper -- Canada Labour Relations Board deciding CBC's action constituting unfair labour practice under s. 94(1)(a) of Canada Labour Code and rejecting CBC's journalistic policy as justification for its action -- Whether Board's decision should be set aside -- Standard of review applicable to Board's decision.

Judicial review -- Standard of review -- Interpretation of external statute -- Standard of review applicable where administrative tribunal interprets external statute -- Whether administrative tribunal entitled to curial deference.

The respondent G was the host of a current affairs radio program on CBC and the president of the union which represents writers, journalists and performers. Under the union's by-laws, the president is also its official spokesperson. In the midst of an election campaign in which free trade was a central issue, G wrote an article against free trade in the union newspaper. The CBC was concerned that his article and his public involvement as president of the union violated the CBC's journalistic policy requiring impartiality of journalists. It was agreed that, as an interim measure, G would cease hosting his program until after election day. After the election, G offered to relinquish his duties as the union's spokesperson, while remaining its president, in order to accommodate the CBC's concerns. The CBC rejected the offer and forced him to choose between his job as host of a radio program and his role as the president of the union. G resigned as union president and resumed hosting his radio program. The union filed a complaint with the Canada Labour Relations Board, alleging that the CBC had interfered with the activities of a trade union, contrary to s. 94(1)(a) of the Canada Labour Code. A majority of the Board upheld the complaint. The majority found that G's article was a union activity protected by s. 94(1)(a) and concluded that the CBC committed an unfair labour practice in forcing him to choose between the two positions and that the CBC's journalistic policy did not justify its action. The Federal Court of Appeal dismissed the CBC's application for judicial review.

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

Per Lamer C.J. and Cory, Iacobucci and Major JJ.: The proper standard of judicial review to be applied to the Board's decision that the CBC had committed an unfair labour practice is one of patent unreasonableness. The issue of whether there was interference with the administration of a trade union and the representation of employees by that union, when the CBC asked G to choose between his position as union president and his position as radio host, is a question of law that Parliament intended to be answered by the Board, and not by the courts. It is a central part of the issue of whether there has been an unfair labour practice, and as such forms part of the question which Parliament, through the Code, has given the Board the exclusive jurisdiction to resolve. This jurisdiction encompasses the authority to develop a test for when such interference is established, and to define the scope of the concepts of "administration" of a union and "representation" of employees. The test developed by the Board to adjudicate the s. 94(1)(a) claims involves (1) a characterization of the activities of the union and a determination as to whether there has been employer interference with them; and (2), if such interference is made out by the union, whether there was justification for the interference. To use this analytical framework to segregate the first part of the test and label it jurisdictional ignores the fact that this issue is part of the substance of the s. 94(1)(a) determination. It is also akin to an endorsement of the preliminary questions doctrine, which this Court in recent decisions has declined to adopt as a useful test for delineating jurisdiction. Support for the conclusion that this determination is not jurisdictional in nature is found in a functional analysis of the Canada Labour Code as a whole. A broad privative clause is combined with wide powers in the Board to deal with questions put before it. Moreover, the terms at issue in this appeal are not specifically defined in the Code and the Board has developed an extensive jurisprudence to determine whether an allegation of a violation of s. 94(1)(a) has been sustained. By virtue of its specialized expertise, the Board is uniquely suited to that determination and courts should defer to that expertise unless it can be said that the Board's decision was patently unreasonable.

As a general rule, curial deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation, although in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it, a measure of deference may be appropriate. This does not mean, however, that every time an administrative tribunal encounters an external statute in the course of its determination, the decision as a whole becomes open to review on a standard of correctness. The tribunal may have to be correct in an isolated interpretation of external legislation, but the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness. The correctness of the interpretation of the external statute may affect the overall reasonableness of the decision. Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole. Here, the fact that the CBC is a creation of, and is governed by, an external statute -- the Broadcasting Act -- does not raise the overall standard of review to one of correctness, even though no deference will be shown to the Board in its interpretation of the provisions of that statute.

The Board's delineation of the relevance of external statutory imperatives in its s. 94(1)(a) analysis is within its jurisdiction. Moreover, the Board's treatment of the relationship between the Broadcasting Act, or the related journalistic policy, and the obligations imposed on the CBC by the Canada Labour Code was not in error. The general requirement in the Broadcasting Act to provide a balanced information service must be interpreted in a way that is consistent with the specific obligations contained in the Code. The Board's own analytical framework for s. 94(1)(a) contemplates such an accommodation. The journalistic policy itself, however, does not enjoy the status of legislation. It is an internal management directive promulgated by the CBC based on its own interpretation of its obligations under the Broadcasting Act. This policy cannot oust the CBC's legal obligations as found in the Canada Labour Code.

The Board's decision that the CBC had interfered with the administration of a trade union or the representation of employees by that union was not patently unreasonable. The Board, while recognizing that s. 94(1)(a) has its limits, found that the publication by a union and its officer of an article in a union newsletter expressing an opinion that a government economic policy constituted a threat or a benefit to its members was protected by s. 94(1)(a). Given the context, the extension of the content protection was not wholly unwarranted. The substance of the article was not aimed at the employer, but rather at gathering support from members for the union's official position. Further, the decision of the majority was arrived at in a principled manner and was not irrational. The Board was entitled to apply the law as found in existing decisions to new and analogous facts. It is not unreasonable to find a connection between the collective bargaining relationship and the activities of unions as they relate to external social issues affecting their members.

Alternatively, the Board also found that the CBC's action in refusing to accept G's offer that he retain his position as union president while no longer serving as its spokesperson had the effect of preventing any broadcast journalist from being the president of the union, and thus affected the right of the union to choose its president from among its entire membership. This act alone amounted to a violation of the Code. On any standard of review, the Board was entitled to find that the election of whichever person the union members wish to have as their president is an activity that falls within the concept of "administration" of a trade union or "representation" of employees by that union.

Finally, the Board's conclusion that the CBC had failed to show a valid and compelling business justification for its interference is not unreasonable. The Board considered the journalistic policy but did not find that it compelled the CBC to take the action that it did in order to fulfil its requirement of impartiality. Even if there were obligations relating to impartiality imposed by the Broadcasting Act on the CBC, they were not determinative, given the Board's finding that there was no causal connection between the requirement of impartiality and the continued presidency of G.

Per Gonthier J.: Subject to the comment of L'Heureux-Dubé J., the reasons of Iacobucci J. were agreed with.

Per L'Heureux-Dubé J.: Subject to the following comment, Iacobucci J.'s reasons were substantially agreed with. An administrative tribunal protected by a full privative clause, as is the Board, is entitled to curial deference in its interpretation of an external statute. The interpretation of an external statute cannot be characterized as a jurisdictional question as such. Consequently, denying curial deference to such a tribunal in this respect seems inconsistent with the jurisprudence of this Court concerning the standard of review of decisions of these tribunals. The Board's interpretation of an external statute thus has no effect on the appropriate standard of judicial review, which, in this case, is one of patent unreasonableness since the decision reached by the Board is entirely within its jurisdiction.

Per La Forest J.: This case raises a very narrow issue. The alternative ground upon which Iacobucci J. supports the Board's decision is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.

Per Sopinka J.: The pragmatic and functional approach is to be used to ascertain whether Parliament intended that the determination of the matters included within s. 94(1)(a) of the Canada Labour Code be left to the Board or whether the section was a provision intended to limit the Board's jurisdiction. In making this determination, the focus is not on whether the union's activity in opposing free trade was intended by Parliament to be included in s. 94(1)(a), but rather on what activity in general Parliament intended to include in the section and its possible reach if not interpreted correctly in accordance with the legislative intention. Given the range of union activity which could be the subject of a complaint under s. 94(1)(a), much of which has little or nothing to do with the purposes of the Code, Parliament cannot have intended to leave it to the Board to determine which part of this activity can be swept into its jurisdiction so as to enable it to subject an employer to sanctions for engaging in "unfair labour practices". Accordingly, s. 94(1)(a) is a provision intended to limit the Board's jurisdiction and the standard of review applicable to the Board's decision is correctness.

The alternative ground upon which Iacobucci J. supports the Board's decision, however, is agreed with and there is no reason to interfere with the Board's finding with respect to the absence of justification.

Per McLachlin J. (dissenting): The functional test is question-specific and must be applied to each question which the Board considered, and the appropriate standard of review must then be applied to its answers. This requirement is not obviated by the fact that a question is part of the substance of the dispute, nor by the fact that it may be "preliminary" or jurisdictional.

The first question the Board was required to consider was whether the union's statements on political matters outside the collective bargaining context were protected by s. 94(1)(a) of the Canada Labour Code. A functional analysis clearly demonstrates that the interpretation of the ambit of s. 94(1)(a) lies at the core of the Board's mandate and was intended by Parliament to be left to the Board, notwithstanding that the question goes to the Board's power or "jurisdiction". A court can therefore only interfere with the Board's conclusion that G's statements were protected by the Code if its conclusion is patently unreasonable. This

conclusion is patently unreasonable from the perspective of both the purpose of the Code and the authorities. The purpose of the Code is to promote and preserve the collective bargaining system and the protection provided by s. 94(1)(a) to employees who speak out is confined to that purpose. Thus, only union statements relating to the collective bargaining process fall within the ambit of s. 94(1)(a) protection; statements made for personal or political reasons are not protected. The courts have made the same distinction. In arriving at the conclusion that all statements of union officials are protected by the Code, except those which are abusive, the majority of the Board failed to address the real issue and made an unsupportable conclusion. The inclusion of all non-abusive union statements within the ambit of s. 94(1)(a) is not a rational extension of the law into analogous areas but rather an attempt to take protection into areas where there is neither precedent nor practical justification for protection.

On the question of interference with a union activity, the applicable standard of review is also patent unreasonability. Had the CBC's action in putting G to a choice between continuing as union president and continuing as host of his program been in response of a statement made by G in the course of collective bargaining, it would clearly have constituted interference with a union activity under s. 94(1)(a).

Finally, assuming the CBC interfered with a union activity protected by the Code, the standard of review applicable to the Board's conclusion on the question of the justifiability of the CBC's conduct under its statutory regime is correctness. This question is outside the special competence of the Board, which has no expertise in interpreting this Broadcasting Act or its regulatory regime. Given the CBC's obligation under the Broadcasting Act to maintain the perception of impartiality in its public affairs broadcasts, the majority of the Board erred in finding that the legislation, policy and administrative review process governing the CBC did not justify it in interfering. In treating the CBC as a private enterprise governed only by a flexible management directive which must yield to the superior legal demands of s. 94(1)(a), the Board failed to consider the special obligation imposed on the CBC by law. The CBC policy was capable of being considered a "compelling reason" for interfering with the activity of the union.

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