A-338-91
Canadian Broadcasting Corporation (Applicant)
v.
Canada Labour Relations Board, Alliance of
Canadian Cinema, Television and Radio Artists
and Dale Goldhawk (Respondents)
INDEXED AS: CANADIAN BROADCASTING CORP. V. CANADA
(LABOUR RELATIONS BOARD) (CA.)
Court of Appeal, Pratte, Desjardins and Décary JJA.
—Montréal, April 1; Ottawa, May 7, 1992.
Labour relations — Application to review and set aside
CLRB decision CBC violated Canada Labour Code, s. 94(1)(a)
in requiring host of national public affairs radio show to resign
either as host or as union president after writing article for
union publication criticizing Free Trade Agreement then being
negotiated — CBC's Journalistic Policy requiring employees
to avoid publicly identifying themselves with partisan state
ments on controversial matters — CLRB finding CBC commit
ting unfair labour practice contrary to Canada Labour Code,
s. 94(/)(a) - Within Board's jurisdiction to consider whether
CBC had committed unfair labour practice — As prima facie
interference with administration of trade union, burden on
CBC to show compelling business reasons warranting action
— Compliance with Journalistic Policy not condition imposed
by CRTC for licence — Board's decision violation of Journal
istic Policy not justifying CBC's action within its jurisdiction
and not patently unreasonable.
This was an application to review and set aside a decision of
the Canada Labour Relations Board that the CBC had violated
Canada Labour Code, paragraph 94(1)(a) when it unlawfully
coerced Dale Goldhawk, a CBC broadcast journalist, into
resigning his position as president of the respondent union.
ACTRA (the union) was a strong opponent of the Free Trade
Agreement between Canada and the U.S.A. In 1988, in his
capacity as ACTRA president, Goldhawk wrote an article for
the union's official publication, which is distributed to mem
bers, attacking the Free Trade Agreement then being negoti
ated. Canada was in the midst of a general election in which
free trade was a central issue. During that same period,
Goldhawk hosted a national public affairs radio program on
which the free trade issue was regularly discussed. The CBC
became concerned that Goldhawk's article and public involve
ment as ACTRA president was contrary to its Journalistic Pol
icy, which requires that its employees avoid publicly identify-
ing themselves with partisan statements on controversial
matters. It required him to resign either as president of ACTRA
or as host of the radio show. ACTRA filed a complaint against
the CBC, alleging that it had unlawfully interfered with the
administration of a union contrary to Canada Labour Code,
paragraph 94(1)(a). The CBC argued that because of its man
date under the Broadcasting Act (to provide a national broad
casting service which makes available a reasonable, balanced
opportunity for the expression of differing views on matters of
public concern) certain conditions had to be followed to reflect
the CBC's policy of impartiality.
The Board found the CBC in violation of paragraph
94(1)(a), holding that that paragraph called for an objective
test concerned with the effect of the employer's actions on the
legitimate rights of employees or their unions. It found that
Goldhawk had engaged in lawful union activity, and held that
the CBC did not have compelling business reasons to require
him to resign from union office. It had not tried to reconcile its
own legitimate business concerns with its employees' statutory
union rights and failed to show any convincing causal relation
ship between Goldhawk's holding office in ACTRA and the
CBC's image of impartiality. The applicant argued that the
Board had exceeded its jurisdiction by applying the unfair
labour practice provisions of the Code to protect partisan polit
ical activities by ACTRA which were wholly divorced from
the collective bargaining process, by wrongly interpreting the
Broadcasting Act under which the Journalistic Policy was
established, by wrongly interpreting its Journalistic Policy, and
by giving an unreasonable interpretation to subsection 94(l) in
finding that the applicant's requirement of public political neu
trality on the part of its journalists was interference with the
administration of a union.
Held, the application should be dismissed.
Per Desjardins J.A. (Pratte and Décary JJ.A. concurring):
The Board acted within its jurisdiction when it considered
whether the applicant had engaged in unlawful union activities.
CBC's actions were prima facie interference with the adminis
tration of a trade union within paragraph 94(1)(a). The burden
therefore rested on the CBC to show compelling business rea
sons warranting its action.
It was unclear whether the CBC's Journalistic Policy was
mandated by the Broadcasting Act. The CRTC has never made
compliance with the Journalistic Policy a condition for the
granting of the renewal of CBC's licence. The Journalistic Pol-
icy merely reflects a management directive by the applicant to
its employees in an effort to comply with its special mandate.
The test applied by the Board required that a close causal
relationship between the employer's reason and action be
established. The Board found that the violation of Journalistic
Policy did not justify the CBC's action. The Court should not
interfere with that decision, which was within the Board's
jurisdiction and was not patently unreasonable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Broadcasting Act, R.S.C., 1985, c. B-9, ss. 3(d), 30(1).
Canada Labour Code, R.S.C., 1985, c. L-2, ss.
94(1)(a),(3)(a)(i),(b),(e), 96.
Free Trade Agreement between Canada and the United
States of America, being Schedule, Part A of Canada—
United States Free Trade Agreement Implementation
Act, S.C. 1988, c. 65.
CASES JUDICIALLY CONSIDERED
DISTINIGUISHED:
United Steelworkers of America v. The Adams Mine,
Cliffs of Canada Ltd., Manager (1982), 83 CLLC 16,011;
1 C.L.R.B.R. (N.S.) 384; [1982] O.L.R.B. Rep. 1767;
Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266;
(1990), 74 D.L.R. (4th) 674; 90 CLLC 14,045; 116 N.R.
161 (C.A.); Quan v. Canada (Treasury Board), [1990] 2
F.C. 191; (1990), 90 CLLC 14,006; 107 N.R. 147 (C.A.).
CONSIDERED:
Decision CRTC 79-320: Renewal of the Canadian Broad
casting Corporation's Television and Radio Network
Licences, April 30, 1979 (CRTC).
APPLICATION to set aside Canada Labour Rela
tions Board decision that CBC violated paragraph
94(1)(a) of the Canada Labour Code. Application
dismissed.
COUNSEL:
Roy L. Heenan and Thomas Brady for applicant.
H. Scott Fairley and Johanne Tremblay for
respondent Canada Labour Relations Board.
Paul J. Falzone for respondents Alliance of
Canadian Cinema, Television and Radio Artists
and Dale Goldhawk.
SOLICITORS:
Heenan, Blaikie, Montréal, for applicant.
Lang, Michener, Lawrence & Shaw, Toronto, for
respondent Canada Labour Relations Board.
Pollit, Arnold, MacLean, Toronto, for respon
dents Alliance of Canadian Cinema, Television
and Radio Artists and Dale Goldhawk.
The following are the reasons for judgment ren
dered in English by
DESJARDINS J.A.: The applicant, the Canadian
Broadcasting Corporation (the "CBC"), seeks to have
reviewed and set aside a decision of the Canada
Labour Relations Board, dated December 20, 1990,
in which the Board concluded that the CBC violated
paragraph 94(1)(a) of the Canada Labour Codel (the
"Code") when it unlawfully coerced Mr. Dale
Goldhawk, â broadcast journalist of long-standing
with the CBC, into resigning his position as president
of the respondent union.
Alliance of Canadian Cinema, Television and
Radio Artists ("ACTRA"), is a major union organiza
tion involved with the scenic arts in English Canada.
It is a strong advocate of the Canadian content rule
for broadcasters and was a strong opponent of the
Free Trade Agreement [between Canada and the
United States of America, being Schedule, Part A of
the Canada—United States Free Trade Agreement
Implementation Act, S.C. 1988, c. 65.] ("FTA") with
the U.S.A. Under its by-laws, the president is the
official spokesperson of the policies pursued by the
union.
In the late summer of 1988, in his capacity as
ACTRA president, Mr. Dale Goldhawk wrote an arti
cle in the fall issue of the union's official publication
ACTRASCOPE which is generally distributed to its
members. Under the heading "The President
Reports", Mr. Goldhawk took a strong position
against the Free Trade Agreement then being negoti
ated with the U.S.A. His article, entitled "Election
R.S.C., 1985, c. L-2.
brings the trade debate to a boil", attacked the free
trade deal and invited the membership to mount a
campaign opposing the deal. The country was then in
the middle of a general election where free trade was
a central issue. During that same period, Mr.
Goldhawk hosted "Cross Country Checkup" a public
affairs radio program broadcasted weekly nationwide
on the CBC English network where the free trade
issue had been regularly discussed.
The existence of Mr. Goldhawk's article came to
the attention of the public in early November 1988 in
a column by Mr. Charles Lynch appearing in the
Ottawa Citizen and in the Vancouver Province.
According to Mr. Lynch's column, who described
himself as a "disgruntled 30-year member of
ACTRA", ACTRA had been campaigning since early
1988 to defeat the Free Trade Agreement and had
"been deluging its members with literature urging
leadership in the fight (against free trade)". Mr.
Lynch commented on Mr. Goldhawk's position with
the CBC and with ACTRA in the following way:
But in his role as ACTRA president, he is part of the battle,
and it is my submission that the listening public is entitled to
disclosure of that fact during the airing of his program and
other programs with heavy input from ACTRA members.
He concluded that he opposed his union using his
money, he said:
... to bolster the anti-free trade case, and urging us to use all
our efforts and all our special access to the channels of,com-
muttication .... That includes massive access to the CBC
facilities as well as those of the other networks.
Mr. Lynch's article was first brought to the atten
tion of Mr. Alex Frame, the area head of current
affairs for CBC Radio, by a producer from a CBC
affiliate who wished to prepare an item on the inci-
dent with Mr. Goldhawk. This, in turn, prompted a
series of meetings between Mr. Goldhawk and CBC
representatives to determine the appropriate course of
action in the circumstances. The CBC was concerned
that Mr. Goldhawk's article in ACTRASCOPE, and
more generally his public involvement as chairman
of ACTRA, were in violation of the CBC's Journalis
tic Policy. Rather than making a decision on the mat
ter right away, it was agreed, at Mr. Goldhawk's sug
gestion, that Mr. Goldhawk would withdraw from
"Cross Country Checkup" until after election day.
Mr. Goldhawk simultaneously took leave from any
public involvement as chairman of ACTRA for the
remainder of the campaign.
The CBC knew that Mr. Goldhawk was the presi
dent of ACTRA when they hired him. They did not,
however, perceive it as being a problem at the time.
Mr. Goldhawk was not the first union president hired
as a host and it was only when he publicly identified
himself with the controversial matter that the problem
arose. The CBC was not concerned with the union
taking a position on free trade, hut became concerned
when a member of their journalistic unit became a
spokesperson on that issue. 2 On November 22, 1988,
Mr. Goldhawk, without the official approval of his
union, told the CBC he was prepared to give up his
duties as public spokesman of ACTRA and remain its
president in order to accommodate the CBC. CBC
turned down that offer. It considered that Mr.
Goldhawk was personally identified with a highly
controversial subject that would be associated with
his holding of any office in ACTRA. To satisfy the
requirements of the CBC's Journalistic Policy, the
CBC felt that Mr. Goldhawk had to sever all ties with
the management of the union if he were to resume his
position as host of "Cross Country Checkup". He was
given the following alternatives: keep his office in
ACTRA or keep his job as host of his show, but not
both. Mr. Goldhawk chose to consult first his union
officials and fellow journalists and, on November 23,
1988, Mr. Goldhawk tendered his resignation as
ACTRA's president. He was soon called back by the
CBC as host of "Cross Country Checkup".
2 A.B., at p. 1329.
ACTRA later filed a complaint against the CBC
alleging violations of paragraphs 94(1)(a), 94(3)(b),
94(3)(e), subparagraph 94(3)(a)(î) and section 96 of
the Code.
The evidence before the Board
The CBC offered as a defence that, because of its
unique mandate under the Broadcasting Act, 3 certain
conditions, under which journalism was practised at
the CBC, had to be followed so as to reflect CBC's
long-standing policy of impartiality and safeguards
against any risk of bias or perception of bias by the
public. It referred to its Journalistic Policy, currently
published in a 130-page manual, which states, inter
alia, that the CBC program policy rests on certain
premises which express the Corporation's philoso
phy, 4 namely that (a) the air belongs to the people,
who are entitled to hear the principal points of view
on all questions of importance; (b) the air must not
fall under the control of any individuals or groups
influential because of their special position; (c) the
full interchange of opinion is one of the principal
safeguards of free institutions; (d) the Corporation
maintains and exercises editorial authority, control
s R.S.C., 1985, c. B-9. S. 30(1) reads in part:
30. (1) The Corporation is established for the purpose of
providing the national broadcasting service contemplated by
section 3, in accordance with the conditions of any licence or
licences issued to it by the Commission and subject to any
applicable regulations of the Commission, and for that purpose
the Corporation has power to .... [Emphasis added.]
S. 3(d) reads in part:
3....
(d) the programming provided by the Canadian broadcas
ting system should be varied and comprehensive and
should provide reasonable, balanced opportunity for the
expression of differing views on matters of public con
cern, and the programming provided by each broadcaster
should be of high standard, using predominantly Cana-
dian creative and other resources; [Emphasis added.]
Although that Act was repealed by S.C. 1991, c. 11, s. 89, it
was the 1985 version that was in force at the time of the deci
sion under review.
4 A.B., at p. 1335.
and responsibility for the content of all programs
broadcast on its facilities; (e) the Corporation itself
takes no editorial position in its programming.
In order to attain balance of fairness in the han
dling of information programming, the Journalistic
Policy states: 5
Journalists will have opinions and attitudes of their own. But
the proper application of professional standards will prevent
these opinions and attitudes from leading them into bias or
prejudice. It is essential that their reporting is done in a judi
cious and fair manner. [Emphasis added by the Board.]
It requires that, in order to maintain their credibil
ity, on-air personnel, as well as those who edit, pro
duce or manage CBC programs, must avoid publicly
identifying themselves in any way with partisan
statements or actions on controversial matters.
The document adds: 6
In an open society, an essential attribute of a journalistic
organization is that both it and its journalists be perceived as
credible by the public. Credibility is dependent not only on
qualities such as accuracy and fairness in reporting and presen
tation, but also upon avoidance by both the organization and its
journalists of associations or contacts which could reasonably
give rise to perceptions of partiality. Any situations which
could cause reasonable apprehension that a journalist or the
organization is biased or under the influence of any pressure
group, whether ideological, political, financial, social or cul
tural, must be avoided.
In the engagement and assignment of persons working in
information programs, the organization must be sensitive to
their published views, their personal involvements and their
associations and backgrounds in order to avoid any perception
of bias or of susceptibility to undue influence in the execution
of their professional responsibilities. [Emphasis added by the
Board.]
The Board allowed the filing by the CBC of the
testimony given before the CRTC in 1977, by Mr.
Marc Thibault, then head of News for Radio-Canada.
5 A.B., at p. 1336.
6 A.B., at p. 1337.
Mr. Thibault's evidence was given in the context of
the then upcoming Quebec referendum where the
CBC was under fire before the CRTC for a perceived
lack of impartiality and the weakness of its journalis
tic standards. In his opinion, the Corporation, in its
capacity as national broadcaster, was distinct from
private broadcasting organizations in many respects.
This uniqueness of the CBC was, in Mr. Thibault's
view, vested in its governing statute. As Mr. Thibault
explained:?
[TRANSLATION] Needless to say, a Corporation journalist is pro
hibited from using the network, directly or indirectly, to pro
mote his personal views or options. [Emphasis added by the
Board.]
Mr. Thibault testified about Radio-Canada's long-
standing policy and safeguards against any risk of
bias or perception of bias by the public. He told the
CRTC about past occurrences involving the policy
against the perception of bias and concluded: 8
[TRANSLATION] ... our golden rule: the public perception that
our colleagues are impartial was as important to us as the
impartiality itself in carrying out their duties on our programs.
The Board heard also witnesses called by ACTRA
to comment on journalistic policies and ethics.
The Board's decision
A majority of the Board found the applicant in vio
lation of the unfair labour practice provision under
paragraph 94(1)(a) of the Code. 9 The majority stated
that, under paragraph 94(1)(a), it was not necessary
to establish an anti-union animus or an intention to
discriminate on the part of the employer. That provi
sion called for an objective test first concerned with
the effect of the employer's actions on the legitimate
7 A.B., at p. 1340.
A.B., at p. 1342.
9 94. (1) No employer or person acting on behalf of an
employer shall
(a) participate in or interfere with the formation or admi
nistration of a trade union or the representation of
employees by a trade union; ....
rights of employees or their unions. It did not, how
ever, impose the burden of proof on the employer.
The majority found that Mr. Goldhawk was
engaged in a lawful union activity contemplated by
article 8 of the Code when, as president of his union,
he wrote his article in ACTRASCOPE.
Two reasons were given.
Firstly, according to earlier decisions of the Board,
declarations to the media by union officials were part
of union administration and representation. That
right, however, was not absolute and had to be exer
cised within certain limits which depended on each
factual situation. Mr. Goldhawk's article was pub
lished in the union's newsletter and was aimed at a
limited union readership. It seemed reasonable to
assume that under the Code a union president could
at least say to his troops, verbally or in writing, what
he could say to the public at large." ) Moreover, Mr.
Goldhawk's article was published in a union's paper
aimed at its membership in a context where he was
gathering support within the union for a position it
had officially adopted. To find otherwise would
imply that the Board was questioning the right of the
union to take that position, in the first place, an argu
ment that had not even been raised before them.t"
Secondly, relying on section 3 of "Convention No.
87 of the International Labour Organization concern
ing Freedom of Association and Protection of the
Right to Organize", referred to in the preamble of the
Code, the majority concluded that, when a union
finds that a government's economic policy such as
free trade constitutes a threat or a benefit to its mem
bership, an article on that subject appearing in a
union publication was a lawful union activity under
the Code. It stated: 1 2
10 A.B., at p. 1363.
11 A.B., at p. 1373.
12 A.B., at p. 1384.
For the majority, Mr. Goldhawk's article was related to the
interests of the collectivity of the union and was neither reck
less nor maliciously untrue so as to lose the Code's protection.
To use the words of the International Labour Organization, it
did not, exceed "the admissible limits of controversy," which
necessarily means that union publications can be controversial.
The majority rejected the CBC's argument that its
Journalistic Policy constituted a valid justification for
the decision it took vis-à-vis Mr. Goldhawk. The
majority recognized that CBC had a legitimate intent
to protect its own integrity and impartiality through
the implementation of a Journalistic Policy which it
characterized as an internal code of behavior. 13 Yet,
its particular application ought to be compatible with
CBC's statutory obligations found in the Code. 14 The
majority stated:l 5
Assuming, for the purpose of this discussion, that CBC could,
albeit indirectly, regulate the content of a union newsletter,
according to the Board's jurisprudence, CBC would still need
to show compelling business reasons warranting such actions
in order to escape section 94(1)(a). Further, the Board would
need to be convinced that in the circumstances of this case, for
Mr. Goldhawk to have remained in office in ACTRA after
November 22nd while remaining an on-air journalist with
CBC, would have had such a detrimental effect on CBC's
image as the Public Broadcasting Agency and on its obligation
to provide balanced information, that it warranted his removal
from ACTRA. Finally, CBC would need to show that the facts
surrounding CBC's decision to ask Mr. Goldhawk to step
down as President of ACTRA genuinely warranted the effects
of such a decision.
ACTRA, clearly has the right to freely designate who will
act on its behalf. CBC's decision practically forced ACTRA to
adjust its internal rules according to the Journalistic Policy and
to reorganize its affairs. If the unit represented by ACTRA
were only composed of on-air journalists, ACTRA would have
simply been paralysed. In the instant case, even though
ACTRA could operate otherwise, its very definite right to
choose its leader was seriously curtailed by CBC's decision.
Past experience within the CBC shows that other means, such
as on-air disclosure, were used to ensure the public's right to
impartiality. Further, we do not see how Mr. Goldhawk's
forced resignation made him less identifiable with a controver
sial issue than before. In fact, it could be argued at least in the
13 A.B., at p. 1387.
14 A.B., at p. 1381.
15 A.B., at pp. 1382-1383.
eyes of some, that he was sacrificed to free trade and in that
sense that he is still very much identified with the issue,
regardless of his resigning his union office.
With regard to the effect of the applicant's deci
sion, the majority further commented: 16
The effect of CBC's decision with respect to Mr. Goldhawk is
to prevent in fact a CBC journalist from chairing ACTRA,
insofar as the chairmanship would comprise the duty to act as
union spokesperson. That latter responsibility is by definition
likely to expose whoever holds i,t to engage or to become
involved in controversies of all sorts. If compliance with the
Journalistic Policy means never being involved publicly in
matters of controversy even in an official union capacity, then
it becomes all but impossible, with such a far reaching applica
tion, to reconcile that policy with the basic freedom of unions
to choose their officials and adopt their statutes and by-laws.
With respect, this by itself constitutes a violation of the Code
(Maritime Employers' Association, supra). The statutory right
of an employer to organize its business cannot be so broadly
interpreted as to allow such a direct infringement on the statu
tory rights of employees to run their unions without interfer
ence.
It added: 17
Failing clear statutory provisions to the contrary, we find CBC
employees and their unions have the same rights under the
Code as those enjoyed by employees of the other employers
governed by the Code.
With respect to the competing legitimate interests
to be balanced and the application of the balancing
test, the majority stated: 18
Finally, after having considered all the evidence, we do not
find that CBC had compelling business reasons to ask Mr.
Goldhawk to resign from ACTRA as a condition precedent to
his continuing to host "Cross Country Checkup". As shown by
its past practice, CBC never considered the statutory rights
conferred by the Code. In requiring Mr. Goldhawk's resigna
tion from ACTRA, CBC did not try to reconcile its own legiti
mate business concerns with its employees' own legitimate
statutory union rights. Finally, CBC has failed to show any
convincing causal relationship between Mr. Goldhawk's per
sonally holding office in ACTRA after November 22, 1988,
and the CBC's image of impartiality, given that ACTRA has
not changed its position on free trade and is still the bargaining
agent of some of CBC's journalists, including Mr. Goldhawk.
16 A.B., at p. 1385.
17 A.B., at p. 1386.
18 A.B., at pp. 1387-1388.
The dissenting member concluded otherwise. She
in particular disagreed with the majority on the ques
tion of what constituted interference with the activi
ties of a trade union. She felt no such interference
occurred. The protection afforded by the unfair prac
tice provisions of the Code did not extend to all law
ful activities of trade unions. In her view, the Board's
mandate was derived exclusively from the Code and
was restricted to matters involving the Code's collec
tive agreement regime and the general relationship
between a union, as exclusive bargaining agent for
employees, and an employer. The free trade issue
concerned the Government of Canada, the political
parties and the electorate of Canada. The free trade
debate was not an issue between ACTRA and the
CBC in the context of their collective bargaining
relationship or their general labour relations. There
fore, the activities of ACTRA or its officers, with
respect to this political issue, did not enjoy the pro
tection of the unfair practice provisions of the Code.
The applicant's submission
The applicant pleads that the Board has exceeded
its jurisdiction by applying the unfair labour practice
provisions of the Code to protect partisan political
activities by ACTRA which were wholly divorced
from the collective bargaining process; by wrongly
interpreting or by failing to consider or apply the pro
visions of the Broadcasting Act under which the Jour
nalistic Policy was established; by wrongly interpret
ing its Journalistic Policy which was an essential
basis for its defence; and by giving an unreasonable
interpretation to the provisions of subsection 94(1) of
the Code in finding that the applicant's requirement
of public political neutrality on the part of its journal
ists was either participation in or interference with
the formation or administration of a trade union.
In essence, the argument of the applicant is that its
Journalistic Policy has been developed in order to
fulfill its special mandate under subsection 30(1) of
the Broadcasting Act and that, at each renewal of its
licence, the CRTC reviews the performance of the
CBC in the light of earlier recommendations. The
Board failed to give effect to the applicant's statutory
duties since it simply considered "management
rights" alone as a possible basis for limitations on
union activities. It wrongly qualified the Journalistic
Policy as the mere corporate code of behavior aimed
at helping the applicant to be perceived as an impar
tial broadcaster. Moreover, says the applicant, the
Code does not apply to all activities which a trade
union may lawfully undertake, but only to those
activities which relate to the organization of employ
ees for collective bargaining with their employer and
the negotiations and administration of collective
agreements between employers and trade unions. The
respondent Goldhawk violated the applicant's Jour
nalistic Policy by taking a public partisan position on
a controversial political matter which was wholly
unrelated to any facets of collective bargaining
between the applicant and the trade union of which
he was president and official spokesperson. His parti
san position was a matter manifestly beyond the
scope of the Code. Both United Steelworkers of
America v. The Adams Mine, Cliffs of Canada Ltd.,
Manager 19 and our decision in Almeida v. Canada
(Treasury Board) 20 were cited in support of its posi
tion.
Analysis
The Board was within its jurisdiction when it
embarked on the question as to whether the applicant
had engaged in unfair labour practice. The act of
coercing the president of a union to resign because of
statements made in his capacity as president and
spokesperson of that union can reasonably be viewed
prima facie as an act of interference with the admin
istration of a trade union within the meaning of para
graph 94(1)(a) of the Canada Labour Code. That
19 (1982), 83 CLLC 16,011 (Ont. L.R.B.).
20 [1991] 1 F.C. 266 (C.A.).
being so, and pursuant to the test set by the Board in
previous decisions, the burden rested on the CBC to
show compelling and justifiable business reasons
warranting its action in order to escape paragraph
94(1)(a).
The applicant claims it had no choice except to
take the course of action it did on account of its spe
cial mandate under the Broadcasting Act. While it is
true that the CRTC did comment over the years on
CBC's efforts to fulfill its mandate, and again in
1979, at the time of the renewal of the CBC's broad
casting licence, 21 it is unclear whether the CBC's
Journalistic Policy, as formulated, is mandated by the
Broadcasting Act. Furthermore, the CRTC has never
made the compliance with the Journalistic Policy a
condition for the granting of the renewal of the
CBC's licence. The most that can be said about the
Journalistic Policy is that it reflects a management
directive by the applicant to its employees in an effort
to comply with its special mandate.
The test applied by the Board then requires that a
close causal relationship between the employer's rea
son and action be established. In the case at bar, the
reasons advanced by the CBC, namely the violation
of its Journalistic Policy, were canvassed by the
Board, a majority of which found that it did not jus-
21 See "Decision CRTC 79-320: Renewal of the Canadian
Broadcasting Corporation's Television and Radio Network
Licences" Canadian Radio-television and Telecommunications
Commission (April 30, 1979), at pp. 63-64:
SUMMARY OR RECOMMENDATIONS
Objectivity in News and Public Affairs Programming
The public must be able to expect, from its national radio
and broadcasting services, a fair, full and objective discus
sion of national and international events through a diversi
fied news and public affairs program service. Further the
public must be able to feel that it has access to, and is heard
by, those who make and manage the programs of the CBC.
The Commission recommends to the Corporation that it
continue its efforts in this direction and strive further to
improve its liaison with the Canadian public.
tify the action taken by the CBC. Whether or not I
agree with the view of the majority, it is one which
was within its domain to reach and which was not
reached in a patently unreasonable manner.
The two cases cited by , the applicant have no bear
ing on the issue before us, which is one of a union
president vis-à-vis his employer. The first, Almeida v.
Canada (Treasury Board) 22 dealt with the nature of
messages reproduced on buttons worn by employees
on the employers' premises. That case and Quan v.
Canada (Treasury Board), 23 commented on in
Almeida, stand for the proposition that the nature of
the message conveyed has a bearing on whether the
wearing of such buttons are lawful activities pro
tected under the Public Service Staff Relations Act
[R.S.C., 1985, c. P-35]. The second, United Steel-
workers of America v. The Adams Mine related to
political activities engaged by union members on the
employer's premises. The Ontario Labour Relations
Board declined jurisdiction to hear an action by the
union against the employer, which had prohibited
canvassing on company property, because the Board
was of the view that, in the circumstances of that
case, the activities were too remotely connected, if at
all, to the bargaining process. Both cases related to
issues of jurisdiction under labour legislation. They
involved no balancing of competing legitimate inter
ests.
For all these reasons, I would dismiss this applica
tion.
DÉCARY J.A.: I agree.
***
The following are the reasons for judgment ren
dered in English by
PRATTE J.A.: I have had the privilege of reading the
reasons for judgment prepared by my colleague
Desjardins J.A. 'I agree with her conclusion.
22 [1991] 1 F.C. 266 (C.A.).
23 [1990] 2 F.C. 191 (C.A.).
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.