A-537-77
Bank of Nova Scotia (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Jackett C.J., Collier J. and Kelly
D.J.—Vancouver, March 21, 1978.
Judicial review — Labour relations — Application to set
aside decision of Canada Labour Relations Board — Whether
or not order for representational vote, that included certain
loan officers, an error in law in view of Code's definition of
"employee" — Whether or not decision re suitability of "single
branches" as bargaining units denial of natural justice because
material considered by Board not available for a reply by
applicant — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
107(1), 125(1), 126, 127, 128.
This is a section 28 application to set aside an order of the
Canada Labour Relations Board whereby, in the course of
processing an application by a union for certification as bar
gaining agent of applicant's employees, the Board ordered a
representation vote by a defined group of employees. The order
attacked would seem to be inter alia an order determining the
appropriate bargaining unit, although it does not expressly
purport to do so. Applicant argues that the Board, in making
this order, erred in law in including the Scotia Plan Loans
Officer in the bargaining unit because such officer was not an
"employee" within the Canada Labour Code's definition. A
confidential memorandum written for the Board by one of its
officers, made, by order, part of the case on which this applica
tion is to be decided, is attacked on the ground that the Board
failed to comply with the requirements of natural justice in that
it had not given applicant an opportunity to answer material
that it took into consideration in making that decision. This
confidential memorandum related only to the question whether
the bargaining unit should be a "single branch", and was not
relevant to the status of Scotia Plan Loan Officers.
Held, the application is dismissed. The concept of "manage-
ment functions" must be interpreted and applied according to
the circumstances of each case and, except in very extreme
cases, its precise ambit is a question of fact or opinion for the
Board rather than a question of law that falls within section 28.
On the facts, the Board cannot be said to have erred in law in
holding that the officers in question did fall within the defini
tion of "employee". As, by the time of the decision under
attack for denial of natural justice, the issue to be decided by
the Board was so limited, it cannot be said that the Board
breached the rules of natural justice when it did not give the
applicant an opportunity to answer material that was in no way
concerned with the issue that was being decided.
APPLICATION for judicial review.
COUNSEL:
John C. Murray for applicant.
L. Michel Huart for Canada Labour Rela
tions Board.
M. T. Blaxland for Office & Technical
Employees Union.
SOLICITORS:
Hicks, Morely, Hamilton, Stewart, Stork,
Toronto, for applicant.
L. Michel Huart, Canada Labour Relations
Board, Ottawa, for Canada Labour Relations
Board.
M. T. Blaxland, Vancouver, for Office &
Technical Employees Union.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C. J.: It is unnecessary to hear counsel
opposing the application.
This is a section 28 application to set aside an
order of the Canada Labour Relations Board
whereby, in the course of processing an application
made by a union under section 124(1) of the
Canada Labour Code for certification as a bar
gaining agent for employees of the applicant, the
Board ordered a representation vote (see sections
127 and 128) by a defined group of employees.
Prima facie, the order so attacked would, while
it does not expressly purport so to be, seem to be
inter alfa an order, determining the appropriate
bargaining "unit", made under section 125(1) of
the Canada Labour Code.' In view of my conclu
sion on the merits of the matter, I propose to
assume without deciding, that the order here in
question is subject to attack under section 28.
Pursuant to the Board's procedural regulations,
the applicant had filed a reply to the application
for certification, whereby it, inter alia
(a) disputed the appropriateness of the "bar-
gaining unit consisting of a single branch",
(b) contended that officers known as "Scotia
Plan Loan Officers" should be excluded from a
bargaining unit, and
(c) asked for an oral hearing.
The course of proceedings leading up to the
order attacked by this section 28 application are
summarized in the applicant's memorandum in
this Court as follows:
5. By letter from the Board dated October 15, 1976, the Bank
of Nova Scotia was notified that the Board may not hold a
hearing and, in the event that it did not, the Board would
decide the matter on the basis of written representation of the
parties and on the results of such examinations and inquiries as
the Board deemed to be necessary.
6. By letter to the Board dated October 19, 1976, the Bank of
Nova Scotia made a further request for a hearing in that only a
hearing would afford the parties an appropriate opportunity to
lead evidence and make comprehensive submissions respecting
the various issues involved in the Application. Among the
matters which the Bank of Nova Scotia cited as being difficult,
if not impossible, to treat adequately without such a hearing
was the eligibility of the persons claimed by the Respondent to
be "employees" within the meaning of the Canada Labour
Code.
' In a case when a vote is ordered to determine the "majori-
ty" for the purposes of section 126, the Code seems to envisage
them consecutive orders as a result of a certification applica
tion, viz.:
(a) an order under section 125(1) determining the appropri
ate bargaining "unit",
(b) an order for a vote by the employees of the "unit" so
determined, and
(c) a certification order under section 126.
See sections 125(1), 126, 127 and 128.
7. By lever to the Board dated October 22, 1976, the O.T.E.U.
indicated that it was not requesting a hearing.
8. By letter to the parties dated November 24, 1976, the
Board's investigating officer set out the differences between the
parties dealing with:
(a) the appropriateness of the unit; and,
(b) inclusion of the Scotia Plan Loan Officer and stenogra
pher in any such unit.
9. By letter to the Board dated December 10, 1976, the Bank
of Nova Scotia submitted "Detailed Information Statements"
in support of its position that the Scotia Plan Loan Officer was
exercising managerial functions and, on that basis, should be
excluded from the bargaining unit. The Management functions
performed by the Scotia Plan Loan Officer were:
Recommending annual marketing objectives; preparing and
executing a strategy to achieve objectives; deciding whether
to approve loan applications within assigned limits; collecting
delinquent loans and effectively recommending repossession
of collateral. Respecting direct subordinates, the Scotia Plan
Loan Officer interviews job applicants and effectively recom
mends hiring, trains new staff, assigns work, appraises
performance, effectively recommends salary adjustments and
payment for overtime and approves short absences with pay.
The Officer is expected to spend full time building and
administering a profitable loan portfolio. Therefore, all rou
tine work associated with processing and recording of loans is
performed by other branch clerical staff and, as business
volume so justifies, by direct subordinates.
10. By letter to the Board dated the 26th day of January, 1977,
O.T.E.U. filed "Comments of the Applicant re Detailed Infor
mation Statement completed by the Employer" regarding the
Scotia Plan Loan Officer:
A direct comparison between the duties performed by this
employee and members of our Union employed as Loan
Collections Officer and Credit Officer as established in
Certification with the various credit unions can be made.
Many of our members recommend hiring, firing and are in
charge of millions of dollars re: loans and collection of same.
Montreal & District
Savings Bank PER YEAR
Supervisor of
Loan Officer
minimum $11,625.00 to $1,275.00 per month
(Surveillant de
Officier Emprunt)
1977 $12,875.00
We would like to advise the Canada Labour Relations Board
that the job title of Supervisor of the Loan Officers is
included in the bargaining unit in our certification with the
Montreal and District Savings Bank and therefore we can
not find any justification in excluding this position from the
Bank of Nova Scotia at Port Hardy.
11. By telex to the parties dated the 14th day of June, 1977,
the Board advised that it had decided that,
(a) no hearing would be held regarding this and other
applications; and,
(b) the applications would be determined on the basis of:
(i) the Board's investigations, and
(ii) the written submissions of the parties in light of the
decisions recorded in the reasons for decisions issued under
date of June 10, 1977, in the following cases:
(A) Service, Office and Retail Workers Union of
Canada in respect of seven units of employees at seven
branches of the Canadian Imperial Bank of Commerce
in British Columbia (Board Files: 555-614, 623, 629,
645, 665, 671 and 706);
(B) Canadian Union of Bank Employees in respect of
three units of employees at three branches of the Bank
of Nova Scotia, in Ontario (Board Files: 555-611, 612
and 618);
(C) Canadian Union of Bank Employees, in respect of a
unit of employees at a Branch of the Canadian Imperial
Bank of Commerce in Ontario (Board File: 555-639).
The Board direct that O.T.E.U. and the Bank of Nova Scotia
be given an opportunity of making "further written submissions
if they so wish in relation to the classifications whose inclusion
or exclusion are in dispute ...".
12. By letter to the Board dated June 22, 1977, the O.T.E.U.
advised the Board that it was relying upon its submission via
the "Comments" filed with the Board on January 26, 1977 (see
Paragraph 10 above).
13. By telex to the Board dated the 23rd day of June, 1977, the
Bank of Nova Scotia requested a hearing with reference to the
status of those positions in respect of which it seeks exclusion
from the bargaining unit.
14. By telex to the Board dated the 24th day of June, 1977,
O.T.E.U. advised that it was satisfied with the decision issued
on June 10, 1977 re Canadian Union of Bank Employees and
the Bank of Nova Scotia Ontario Branches, and did not request
a hearing.
15. By letter to the Board dated the 27th day of June, 1977,
the Bank of Nova Scotia submitted the "further written sub
missions" invited in the telex of June 14, 1977, concerning the
exclusion of the Scotia Plan Loan Officer (along with others)
from the proposed bargaining unit and further stated that, since
the job descriptions presented by the O.T.E.U. were not validly
matching positions to those in issue, the Board should disregard
them. The Bank of Nova Scotia made another request for a
hearing "having regard to the restrictions in making written
representation on the status of positions which are of critical
importance to the Employer's operations".
16. By letter to the Board dated the 11th day of July, 1977, the
Bank of Nova Scotia submitted no further material in view of
no new material from the O.T.E.U. and reiterated its request
for a hearing. As an alternative, the Bank of Nova Scotia
requested that the Board rely solely on the evidence submitted
on behalf of the Bank of Nova Scotia.
Part II of the applicant's memorandum sets out
the "Points in Issue" as follows:
1. The Board erred by including the person described as Scotia
Plan Loan Officers in the bargaining unit in that, having
regard to the evidence before it, no tribunal properly instructed
in the law could come to the conclusion that the Scotia Plan
Loan Officer was an employee under the Canada Labour Code,
that is, not a person who performs management functions.
2. The Board exceeded its jurisdiction by improperly interpret
ing the definition of "employee" contained in s. 107(1) of the
Canada Labour Code and by including the Scotia Plan Loan
Officer in tt a bargaining uni' of "emplcvees"
3. The Board erred in not making known to the Bank of Nova
Scotia the nature of the investigations nor results thereof
undertaken by the Board pursuant to its notification in the
telex of June 10, 1977 that it would decide the application
based on:
(a) its own investigations;
(b) previous identified decisions; and,
(c) written submissions,
and preliminary to its decision dated July 21, 1977 wherein it
stated that its decision was based upon an investigation and the
written submission.
4. The Board further erred in that it failed to hold a hearing
where there are matters in dispute between O.T.E.U. and the
Bank of Nova Scotia relating to the management functions
which the Scotia Plan Loan Officer exercises.
As I understood counsel, the first basis on which
section 28 relief is sought is that the Board had
erred in law in including a Scotia Plan Loan
Officer in the bargaining unit because such an
officer was not an "employee" within the defini
tion of that word in section 107(1) of the Canada
Labour Code, which definition reads as follows:
107. .. .
"employee" means any person employed by an employer and
includes a dependent contractor and a private constable, but
does not include a person who performs management func
tions or is employed in a confidential capacity in matters
relating to industrial relations;
The argument was, in effect, that such an officer
fell within the words "a person who performs
management functions" and was thus excluded
from the class of persons who fall within the word
"employee" as defined. No submission was made
as to a meaning of the word "management" in this
context that, as a matter of law, would apply in all
circumstances. In my view, there is no such precise
meaning. As I read Part V, the concept of "man-
agement functions" must be interpreted and
applied according to the circumstances of each
case and, except in very extreme cases, I am
inclined to the view that its precise ambit is a
question of fact or opinion for the Board rather
than a question of law that falls within section 28. 2
In any event, on the facts of this case, I have not
been persuaded that the Board can be said to have
erred in law in holding that the officers in question
did fall within the definition of "employee".
With reference to the other "Points in Issue" set
out in Part II of the applicant's memorandum as I
understood counsel for the applicant, he did not
contend that, on the facts as outlined in its memo
randum, there was any basis for section 28 relief.
However, at the opening of argument in this
Court, the applicant sought an order concerning
part of a confidential memorandum' written for
the Board by one of its officers, which part had
been obtained by the applicant from the Board
after preparation of the applicant's memorandum
in this Court; and an order has now been made
recognizing such part of that memorandum as a
part of the case on which this section 28 applica
tion is to be decided without prejudice to the
question of its relevancy.' Based on this memoran
dum, the applicant submitted that the order
attacked should be set aside (on the ground set out
in paragraph 3 of its "Points in Issue"), as I
understand it, because the Board had failed to
comply with the requirements of natural justice in
that it had not given the applicant an opportunity
2 Compare Brutus v. Cozens [1973] A.C. 854. The most
extreme limits of which I can conceive are a holding that a
chief executive officer does not exercise management functions
and a holding that an office boy does. Any such holding would,
I should have thought, be an error of law.
References to this memorandum herein are to be under
stood as referring to it and documents attached thereto.
4 The decision to make this order was taken on the mistaken
assumption by the Court that the memorandum contained
material relating to the status of the loan officers that the
applicant had not been given an opportunity to answer.
to answer material that it took into consideration
in making that decision.
In this connection, it is important to note that
the material in the confidential memorandum
relied on by the applicant related only to the
question whether the bargaining unit should be a
"single branch" and was not relevant to the status
of Scotia Plan Loan Officers.
While the question as to whether a "single
branch" was an appropriate bargaining unit for
bank employees had not then been decided by the
Board and was put in issue in this case by the
applicant's reply in October, 1976, it seems quite
clear to me, from the review of the proceedings set
out in the applicant's memorandum, which I have
already quoted, that it had ceased to be an issue in
this case after the Board's decisions of June 10,
1977. 5 See, for example, the applicant's telex of
June 23rd, 1977, following the Board's telex of
June 14, 1977, wherein the applicant limited its
request for a hearing to a "hearing with reference
to the status of those positions in respect of which
it seeks exclusion from the bargaining unit". As,
by the time of the decision under attack, on July
21, 1977 the issue to be decided by the Board was
so limited, it cannot be said, in my view, that the
Board breached the rules of natural justice when it
did not give the applicant an opportunity to answer
material that was in no way concerned with the
issue that was being decided.
In my view, the section 28 application should be
dismissed.
COLLIER J. concurred.
* * *
KELLY D.J. concurred.
5 It would seem that the Board's decision in another case re a
single branch being an appropriate bargaining unit was in June,
1977 being accepted in the same way as it might have been
accepted had the other case been decided before the present
certification application was made, in which event the issue
would never have been raised by the applicant's reply to the
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.