CBC+v.+CLRB

Jurisdiction || Supreme Court of Canada, 1995 || Facts || Mr. Goldhawk hosted a radio program “Cross Country Checkup” and was also president and spokesperson of the ACTRA. In 1988, Goldhawk published an article in the fall issue of the union’s newsletter where he took a strong position against the free trade agreement being negotiated at the time. CBC heard of the article and asked that Goldhawk step down from his position as president or lose his job. || Issue(s) || Issue for the board: Whether the //Canada Labour Code// was violated when Goldhawk was asked to choose between his position as radio host and his position as president of the union Issues for SCC: (1) scope of the board’s jurisdiction in the application of s.94(1)(a) of the //Canada Labour Code// (2) whether the board committed a jurisdictional error in holding that the actions of the CBC amounted to an unjustified interference with the administration of a trade union in violation of s.92(1)(a) || Holding || (1) yes (2) no || Ratio || Board’s decision: - to succeed under 94.1(a), it was **not** necessary for a complainant to establish anti-union animus on behalf of the employer - apply a **balancing test**, considers whether the adverse impact on union activity was counterbalanced by a “sufficient or legitimate managerial, entrepreneurial, or collective bargaining justification” - “legitimate managerial interests”: entrepreneurial interests have to be real and to constitute more than a minor annoyance or inconvenience to the employer Any statements would have to be relevant to the politics, interests and concerns of the trade union (//Canada Post Corp v. L.C.U.C)//. Statements that were malicious or recklessly untrue would lose the protection of the Code - right of union officials to make such statements flowed from the Code, and officials acting in good faith could expect statutory protection that was not necessarily granted to all employees Majority of the board found that Mr. Goldhawk’s article was related to the interests of the collectively of the union and was neither reckless not maliciously untrue. This alone constituted a violation of the Code. - From balancing test, it was clear that the CBC did not try to reconcile its own legitimate business interests with those of Goldhawk as a union member
 * //A.C.T.R.A. v. Canadian Broadcasting Corp.//**

Federal Court of Appeal: Act which can be viewed //prima facie// as an act of interference with the administration of a trade union within the meaning of paragraph 94(1)(a) of the //Canada Labour Code// The **burden** shifts to the CBC to show that there were compelling and justifiable business reasons warranting its action Test requires that a close causal relationship between the employer’s reason and action be established

Decisions of the federal board are protected by a broad privative clause, found in s.22 of the Code - the decisions of the board cannot routinely be overturned by the courts whenever they disagree with the board’s treatment of an isolated issue. - applicable standard of judicial review is **patent unreasonableness** [first adopted by Dickson J. in //CUPE//] – was the board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
 * SCC reasoning:**

Finding of an unfair labour practice practice within s.94(1)(a) of the Code, is a jurisdiction-limiting decision that should be reviewed on a **standard of correctness** s.94(1)(a) TEST: 1) did actions of employer amount to a //prima facie// interference with the administration of a trade union or the representation of employees by a union - court should only intervene if the decision was patently unreasonable 2) whether there was justification for the interference

answer: 1) Parliament, through the Code, has given the board the exclusive jurisdiction to resolve questions of unfair labour practices. Therefore, the SC should defer to that expertise unless it can be said that the decision of the board was patently unreasonable. In interpreting legislation outside of its constituting statute, an administrative tribunal will be held to a standard of correctness  2)  CBC would still need to show //compelling business reasons// warranting such actions in order to escape 94(1)(a). Journalistic policy of the CBC itself does not enjoy the status of legislation. Even the most admirable policy cannot permit an employer to amend unilaterally the scope of union rights provided by statue

In order for 94(1)(a) to apply prima facie, public statements by union officials had to relate to the interests of the union as a collective, and not to the personal concerns of the union official. The case at bar concerned an article published in a union newsletter and directed at union members = the decision of the board was arrived at in a principled manner and was not irrational - appellant failed to show any convincing causal relationship between the image of impartiality and Goldhawk’s continuing to hold office as ACTRA president

The board’s conclusion that the union’s activities fell within the ambit of the //Canada Labour Code// **is** patently unreasonable The board was required not only to be reasonable but correct, and that it erred
 * Dissent: McLachlin J.**

Sees the functional test as more question-specific for the standard of judicial review. Need to consider: (1) the statue which empowers the board, including the purpose of the board, the scope of its powers, the breadth of language used and the presence or absence of a privative clause (2) the board whose decision is impugned, including whether it possesses a developed jurisprudence, how its members are selected, how they participate in decision making, and experience or context which gives them special insights (3) the nature of the problem under consider, including whether it falls squarely or by implication within the powers of the board, whether its answer requires specialized knowledge, and whether it is a question of general application which a court is equally or better suited to answer

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 Critical issue here: whether the board’s conclusion that the grievance concerned a protected union activity within the jurisdiction of the board was patently unreasonable

Purpose of s.94(1)(a) To preserve the integrity of the collective bargaining system by avoiding situations in which employees might be deterred from speaking frankly on collective bargaining matters for fear of discipline or changes in their jobs.

- unions have every right to participate in purely political activities. But such activities do not attract the special protection conferred by labour legislation to end of ensuring the integrity of the collective bargaining process - there is a well established legal distinction between collective bargaining activities of a union and political statements of a union

The majority of the board failed to address the **real issue** and made an erroneous and irrational leap to an unsupportable conclusion - board was not specialized enough to answer this question; CBC a federal organization and had an obligation of impartiality. CBC was held to the standard of a private business ||