PACIFIC PRESS LIMITED v. VANCOUVER-NEW WESTMINSTER NEWSPAPER GUILD, LOCAL 115 et al.
Anderson, Macfarlane and Southin JJ.A.
Heard: February 2, 1989
Judgment: February 16, 1989
Docket: Vancouver No. CA009479
34 B.C.L.R. (2d) 339
Counsel: W.E. MacDonald and I.S. Petersen, for appellant.
E.R.A. Edwards, Q.C., and I.T. Benson, for respondent Industrial Relations Council of B.C.
Subject: Labour; Public
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For all relevant Canadian Abridgment Classifications refer to highest level of case via History.
Headnote
Labour Law — Labour relations boards — Judicial review — Availability of review — General
Labour law — Labour relations boards — Judicial review of decisions — Availability — Industrial Relations Council applying definition of “strike” held by court in previous proceedings to have been unreasonable, but not patently so — Court’s interpretation not binding on tribunal.
Administrative law — Judicial review of decisions — Availability — Industrial Relations Council applying definition of “strike” held by court in previous proceedings to have been unreasonable, but not patently so — Court’s interpretation not binding on tribunal.
The collective agreement between the parties contained a clause permitting the respondent unions to refuse to execute any work coming from or destined for any entity they had declared “unfair”. The respondents had exercised that right in 1984, and the Labour Relations Board had held that they were not engaged in an unlawful strike. The court subsequently held that the board had erred in interpreting the word “strike” in the Labour Code, but that the error was not patently unreasonable. In June 1987 the respondents refused to handle certain advertising material, again relying on the clause. Again, the matter went before the board, which referred to the court’s decision but applied its own earlier analysis. The respondent Industrial Relations Council confirmed the decision upon reconsideration. On an application for judicial review, the court held that it was open to the board and the council to continue to apply the interpretation with which the court had earlier disagreed. The employer appealed.
Held:
Appeal dismissed.
It is not the law that once the court interprets legislation an administrative tribunal is bound by that judicial interpretation and that any other interpretation must be viewed as unreasonable.
Appeal from judgment of Gibbs J., 26 B.C.L.R. (2d) 223, 31 Admin. L.R. 227, 89 C.L.L.C. 14,005, dismissing petition for judicial review of decision of Industrial Relations Council.
Macfarlane J.A. (Anderson J.A. concurring):
1 This is an appeal from the judgment of Mr. Justice Gibbs, pronounced 17th May 1988 [now reported 26 B.C.L.R. (2d) 223, 31 Admin. L.R. 227, 89 C.L.L.C. 14,005], dismissing the application of Pacific Press Limited for judicial review of a decision of the Industrial Relations Council, No. C6/88, dated 13th January 1988 [18 C.L.R.B.R. (N.S.) 373].
2 The respondent unions represent the employees of Pacific Press Limited. On 17th October 1984 the unions refused to handle advertising material presented by Famous Players to Pacific Press Limited for publication. In doing so, they relied upon this clause in the collective agreement between them and their employer:
43.(a) The Union reserves to its members the right to refuse to execute any work coming from or destined for any other employer or publication which has been declared by the Union to be unfair.
3 Pacific Press Limited applied to the Labour Relations Board for relief but the board held that the unions had not engaged in an unlawful strike.
4 Pacific Press Limited then applied for judicial review. Mr. Justice Bouck decided on 28th May 1987 that the Labour Relations Board had erred in interpreting the definition of the word “strike” in the Labour Code. He held, however, that the error was not so patently unreasonable as to justify intervention by the court and dismissed the application for judicial review.
5 On 15th June 1987 the unions refused to handle advertising material from Canada Post, again relying on cl. 43.(a) of the collective agreement.
6 Pacific Press Limited applied again to the Labour Relations Board for a declaration that the unions were engaged in an unlawful strike. The board referred to the opinion of Mr. Justice Bouck but, with respect, decided to apply the analysis set out in the earlier Pacific Press cases. That decision was reconsidered and not varied by the Industrial Relations Council on 13th January 1988.
7 An additional question was raised before the Industrial Relations Council. The question was whether s. 4.1(1) of the Industrial Relations Act (which became effective 27th July 1987) should be applied and interpreted in such a way as to render invalid cl. 43.(a) of the collective agreement.
8 Section 4.1(1) provides:
4.1(1) An express or implied provision of an agreement between an employer and a trade union by which the employer ceases or refrains, or agrees to cease or refrain from handling, using, buying, selling, transporting or otherwise dealing in the products of another employer or to cease doing business with another person is void.
9 The Industrial Relations Council held that, upon a proper interpretation of s. 4.1(1), cl. 43.(a) was not invalid in these circumstances and that the strike was not unlawful.
10 In giving his reasons for dismissing the application by Pacific Press Limited for judicial review, Mr. Justice Gibbs said that the primary issue before the court was [p. 225]:
… to what extent, if any, was the board, or its successor, the council, obliged to accord “curial deference”, in subsequent decisions, to the finding by Mr. Justice Bouck that there had been errors, although not patently unreasonable errors, in the statutory interpretations at the root of the two impugned decisions. That is to say, was the board, or the council, free thereafter to perpetuate the not patently unreasonable errors, or were they obliged, in subsequent decisions, to avoid repetition of errors held by Mr. Justice Bouck not to be so patently unreasonable as to justify intervention? Put more succinctly, can repetition of what the court has found to be a “mere error” convert it into a “patently unreasonable error” such that the tribunal loses jurisdiction?
11 Mr. Justice Gibbs held that “a mere error cannot become more than that regardless of how often it is repeated”. He said that it is not to be assumed “that there can be only one reasonable interpretation of the statute”. He held, in effect, that the interpretation of the board not having been found patently unreasonable, it was open to the board, now the council, to continue to apply that interpretation.
12 I pause to say that the appellant did not appeal the finding of Mr. Justice Bouck that the interpretation of the statute was not patently unreasonable, and does not argue now that the interpretation placed by the board on the statute is patently unreasonable.
13 The appellant’s argument comes down to this. Once the court interprets legislation, an administrative tribunal is bound by that judicial interpretation and any other interpretation must be viewed as unreasonable.
14 But Mr. Justice Bouck, by holding that the board’s interpretation was not patently unreasonable, should not be taken to have concluded that his construction of the statute was the only reasonable interpretation to be given to it. The effect of his finding that the board’s interpretation was not patently unreasonable is that its construction can be rationally supported by the legislation. If the board’s interpretation is a rational one, then it is within the jurisdiction of the board to continue to apply that interpretation. If that were not so, then the exclusive jurisdiction of the board would be illusory, and the final say on legal questions would be left to the courts. The doctrine of curial deference would be meaningless. Clearly, it is not open to the court to order that an administrative tribunal must apply the court’s view of the law when there is more than one reasonable interpretation to be given to legislation.
15 I agree with Mr. Justice Gibbs that there was no basis for intervention on this ground.
16 Issue estoppel was raised by counsel for the Industrial Relations Council in his argument before the chambers judge. It is unnecessary for us to express an opinion on that point, but we should not be understood as endorsing the reasons or conclusion of Mr. Justice Gibbs on that question.
17 The second ground of appeal is that the chambers judge erred in not determining that the interpretation of the Industrial Relations Council of the Industrial Relations Act was patently unreasonable when it found that the enactment of s. 4.1 did not prohibit secondary boycott agreements where union members refused to handle work emanating from a person in respect of whom collective bargaining is regulated by the Labour Code.
18 Mr. Justice Gibbs declined to deal with this question. It is unnecessary for us to comment on the interpretation given by the Industrial Relations Council to s. 4.1 because it is our view that the section does not apply retroactively in this case. The incident which gave rise to the application to the Labour Relations Board for a declaration that the union was engaged in an unlawful strike occurred on 15th June 1987. Section 4.1 did not come into force until 27th July 1987. Section 68 of the Industrial Relations Reform Act provides:
Transitional
- Matters pending before the Labour Relations Board on the coming into force of this section and applications for reconsideration shall be determined as if the amendments made by this Act were law at all times relevant to the determination, except where, in the opinion of the council, the application of the amendments would treat as unlawful something that was lawful at the time it occurred.
19 The council has expressed its opinion that, apart from s. 4.1(1), the secondary boycott by the unions on 15th June 1987 was lawful. Only by the application of s. 4.1(1) could the activity be considered unlawful. The council did not express any view on the latter question but there is only one answer to it. The result is that the section should not be applied retroactively and cannot be used as a basis for making a declaration that the unions were engaged in an unlawful strike on 15th June 1987.
20 I would dismiss the appeal.
Southin J.A.:
21 I agree substantially with the reasons of Macfarlane J.A. but desire to add some words of my own.
22 First, in my opinion, the doctrines of curial deference and patent unreasonableness are no more than tests invented to assist in determining the answer to the central question upon any petition for judicial review, namely, did the inferior tribunal act within the jurisdiction conferred upon it by its enabling statute. In the end, that is a matter of statutory interpretation.
23 These doctrines are of the same order as the assumption, as a matter of statutory interpretation, that the legislature, in the absence of express words, has not intended to confer and has not conferred upon a tribunal the power to act contrary to the rules of natural justice.
24 Secondly, issue estoppel is a doctrine, if not in its infancy, at least still in childhood. Therefore, the courts must, I think, tread most carefully in this area lest we deprive the Queen’s subjects of access to the courts for the proper determination of issues which, in truth, have never been fully addressed. It may be also that the doctrine will ultimately be found to have no application to judicial review.