CUPE v. N.B. Liquor Corp. (1979), 26 N.R. 341 (SCC)
MLB headnote and full text
Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation
Indexed As: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.
Supreme Court of Canada
Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
March 30, 1979.
Summary:
This case arose out of a complaint by C.U.P.E. to the Public Service Labour Relations Board that management employees of the employer were performing the functions of striking employees contrary to s. 102(3) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. S. 102(3) provided that during a strike “the employer shall not replace the striking employees or fill their positions with any other employee”. The Board ruled that s. 102(3) prevented management employees from performing the functions of striking employees. The employer applied for an order of certiorari to quash the decision of the Board.
The New Brunswick Court of Appeal in a judgment reported 21 N.B.R.(2d) 441; 37 A.P.R. 441, allowed the application and quashed the decision of the Board. The Court of Appeal held that s. 102(3) did not prevent management employees from performing the functions of striking employees. C.U.P.E. appealed.
The Supreme Court of Canada allowed the appeal and set aside the decision of the Court of Appeal. The Supreme Court of Canada held that the Board’s decision lay at the heart of the specialized jurisdiction confided to the Board and was protected from judicial review by s. 101 of the Public Service Labour Relations Act. See paragraphs 8 to 16. Further, the Supreme Court of Canada held that the interpretation of s. 102(3) by the Board was reasonable. See paragraphs 16 to 29.
Administrative Law – Topic 1442
Finality – Collateral, jurisdictional or preliminary issues – What constitutes a collateral or jurisdictional issue – The Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, s. 19, gave the Public Service Labour Relations Board the power to determine whether the employer failed to observe any prohibition in the Act – A union complained to the Board during a strike that management employees were performing the functions of striking employees contrary to s. 102(3) of the Act, which stated that “the employer shall not replace … striking employees or fill their positions with any other employee” – The Board ruled that the prohibition included management employees performing the functions of striking employees – The New Brunswick Court of Appeal held that the Board’s decision was a collateral matter and was subject to review, notwithstanding section 101 of the Act which protected the Board’s decisions from review – The Supreme Court of Canada held that the Board’s interpretation of s. 102(3) lay at the heart of the specialized jurisdiction confided to the Board and was not a collateral matter – The Supreme Court of Canada held that the Board’s decision was protected from review by s. 101 of the Act – See paragraphs 8 to 16.
Labour Law – Topic 9725
Public service labour relations – Strikes – Management rights during strike – The Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, s. 102(3), provided that during a strike “the employer shall not replace the striking employees or fill their positions with any other employee” – The New Brunswick Public Service Labour Relations Board held that s. 102(3) prevented management employees from performing the functions of striking employees during a strike – The Supreme Court of Canada held that the Board’s interpretation of s. 102(3) was reasonable and should not be disturbed – See paragraphs 16 to 29.
Cases Noticed:
Service Employees’ International Union v. Nipawin Union Hospital, [1975] 1 S.C.R. 382, refd to. [para. 12].
Re Jacmain (1977), 18 N.R. 361; [1978] 2 S.C.R. 15, dist. [para. 13].
Parkhill Bedding & Furniture Ltd. v. International Molders & Foundry Workers Union of North America, Local 174 and Manitoba Labour Board (1961), 26 D.L.R.(2d) 589, dist. [para. 13].
Jarvis v. Associated Medical Services Ltd. et al. (1974), 44 D.L.R.(2d) 407, dist. [para. 13].
Farrell v. Workmen’s Compensation Board and Attorney General of British Columbia, [1962] S.C.R. 48, consd. [para. 15].
Statutes Noticed:
Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, sect. 1(g), sect. 6 [para. 5]; sect. 19(1)(a) [para. 11]; sect. 50 [para. 28]; sect. 70, sect. 71, sect. 72, sect. 73, sect. 74, sect. 75 [para. 27]; sect. 101 [para. 14]; sect. 102(3) [para. 4].
Authors and Works Noticed:
Wade, Administrative Law (4th Ed. 1977), p. 245 [para. 9].
Counsel:
James A. DiPaolo, for the appellant;
David M. Norman, Q.C., for the respondent.
This case was heard on December 11, 1978, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.
On March 30, 1979, DICKSON, J., delivered the following judgment for the Supreme Court of Canada:
