Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5
Cuddy Chicks Limited Appellant
v.
Ontario Labour Relations Board and
United Food and Commercial Workers
International Union, Local 175 Respondents
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General for Saskatchewan,
Canada Employment and Immigration
Commission and Marcelle Tétreault‑Gadoury Interveners
Indexed as: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)
File No.: 21675.
1990: November 7; 1991: June 6.
Present: Lamer C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Administrative tribunals ‑‑ Jurisdiction ‑‑ Board granted power to consider questions of law ‑‑ Whether Board can make constitutional determination regarding its own enabling legislation ‑‑ Canadian Charter of Rights and Freedoms, s. 24(1) ‑‑ Constitution Act, 1982, s. 52 ‑‑ Labour Relations Act, R.S.O. 1980, c. 228, ss. 2(b), 106(1), 124.
Administrative law ‑‑ Boards ‑‑ Jurisdiction ‑‑ Board granted power to consider questions of law ‑‑ Whether Board can make constitutional determination regarding its own enabling legislation ‑‑ Canadian Charter of Rights and Freedoms, s. 24(1) ‑‑ Constitution Act, 1982, s. 52 ‑‑ Labour Relations Act, R.S.O. 1980, c. 228, ss. 2(b), 106(1), 124.
Respondent union filed an application for certification before the Ontario Labour Relations Board relating to employees at the chicken hatchery of Cuddy Chicks Ltd. Section 2(b) of the Labour Relations Act, however, provided that the Act did not apply to persons employed in agriculture and the appellant maintained that the employees in question should be so designated. On filing the application, the union gave notice that it would request the Board to hold s. 2(b) invalid as being contrary to ss. 2(d) and 15 of the Canadian Charter of Rights and Freedoms if the employees were found to be agricultural employees.
Prior to the commencement of the hearing, Cuddy Chicks disputed the jurisdiction of the Board to subject its enabling statute to Charter scrutiny. At that point, a separate hearing was convened to determine whether the panel had jurisdiction to entertain the Charter issues raised by the Union. The first panel found the employees to be in the agricultural sector so that the Act did not apply. A majority of the panel then held that the Board had jurisdiction to rule on the Charter issue because the Board was a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter and because s. 52 of the Constitution Act, 1982 imposed an obligation on the Board to ensure that the law it applies is consistent with the supreme law of Canada. The Board, under s. 106(1) of the Act, has jurisdiction to decide questions of law relevant to the proceedings before it.
The Divisional Court held that the Board had jurisdiction to deal with the Charter issue. A majority of the Court of Appeal held that s. 52(1) of the Constitution Act, 1982 conferred jurisdiction on the Board to decide the constitutionality of its enabling statute. At issue here were: (1) whether s. 52 of the Constitution Act, 1982 conferred the right and duty on an administrative agency such as the OLRB to decide the constitutional validity of its enabling statute; (2) whether the OLRB had the jurisdiction to decide the constitutional validity of s. 2(b) of its enabling statute by applying the Charter as part of its duty to consider statutes bearing on proceedings before it; and, (3) whether the OLRB was a "court of competent jurisdiction" under s. 24(1) of the Charter.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.: An administrative tribunal which has been given the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. It must respect the Constitution as the supreme law because of the principle of supremacy of the Constitution confirmed by s. 52(1) of the Constitution Act, 1982.
Section 52(1) of the Constitution Act, 1982 neither specifies which bodies may rule on Charter questions nor confers jurisdiction on an administrative tribunal. Jurisdiction over the whole of the matter ‑‑ the parties, subject matter and remedy sought ‑‑ must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. An administrative tribunal, however, need not be a court of competent jurisdiction within the meaning of s. 24(1) of the Charter in order to have the necessary authority to subject its enabling statute to Charter scrutiny. The relevant inquiry in this case was not whether the tribunal was a "court" but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter.
In conducting this inquiry, it first must be determined whether the tribunal has jurisdiction over the whole of the matter before it. Here, the issue centred on the Board's jurisdiction over the subject matter and remedy. The subject matter was not simply an application for certification, which fell squarely within the Board's authority, but one requiring the Board to subject s. 2(b) of the Act to Charter scrutiny in order to determine whether the application for certification was properly before it. Similarly, the remedy of certification required the Board to refuse to give effect to s. 2(b) of the Act because of inconsistency with the Charter. The authority to apply the Charter had to be found in the Board's enabling statute because the subject matter and remedy were premised on the application of the Charter.
The Act expressly, and without reservation, granted the Board the authority to decide points of law and to determine questions of law and fact relating to its own jurisdiction. This authority with respect to questions of law encompasses the question of whether a law violates the Charter. The Board therefore had the authority to rule on the constitutionality of s. 2(b) of its enabling statute in the course of considering the Union's application for certification.
The jurisdiction of the Board is limited in at least one crucial respect: it can expect no curial deference with respect to constitutional decisions. Further, a formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, which is a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitute a binding legal precedent but is limited in its applicability to the matter in which it arises.
Per Wilson and L'Heureux-Dubé JJ.: The reasons of La Forest J. were concurred with subject to the qualification that the absence of legislative authority to deal with the Charter issue in the governing statute is not necessarily determinative of a tribunal's jurisdiction, since the authority and obligation to apply the law may be grounded elsewhere.
Cases Cited
By La Forest J.
Considered: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 000; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; The Queen v. Ontario Labour Relations Board, Ex parte Dunn (1963), 39 D.L.R. (2d) 346; Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031.
By Wilson J.
Referred to: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; McLeod v. Egan, [1975] 1 S.C.R. 517; Mills v. The Queen, [1986] 1 S.C.R. 863.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2(d), 15, 24(1).
Constitution Act, 1982, s. 52(1).
Labour Code, R.S.B.C. 1979, c. 212.
Labour Relations Act, R.S.O. 1980, c. 228, ss. 2(b), 106(1), 124.
APPEAL from a judgment of the Ontario Court of Appeal (1989), 70 O.R. (2d) 179, 62 D.L.R. (4th) 125, 35 O.A.C. 94, 44 C.R.R. 75, 89 C.L.L.C. 14,051, 39 Admin. L.R. 48, dismissing an appeal from a judgment of the Divisional Court (1988), 66 O.R. (2d) 284, 32 O.A.C. 7, 88 C.L.L.C. 14,053, 33 Admin. L.R. 304, dismissing an appeal from a judgment of the Ontario Labour Relations Board. Appeal dismissed.
George W. Adams, Q.C., Patrick E. Hurley and Ralph N. Nero, for the appellant.
Stephen T. Goudge, Q.C., and Christopher M. Dassios, for the respondent Ontario Labour Relations Board.
Douglas J. Wray, for the respondent United Food and Commercial Workers International Union, Local 175.
Gaspard Côté, Q.C., and Carole Bureau, for the interveners Canada Employment and Immigration Commission and the Attorney General of Canada.
Robert E. Charney, for the intervener the Attorney General for Ontario.
Robert G. Richards and Ross MacNab, for the intervener the Attorney General for Saskatchewan.
Jean‑Guy Ouellet and Gilbert Nadon, for the intervener Marcelle Tétreault‑Gadoury.
//La Forest J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ. was delivered by
La Forest J. -- This appeal concerns the jurisdiction of the Ontario Labour Relations Board to determine the constitutionality of a provision of its enabling statute, the Labour Relations Act, R.S.O. 1980, c. 228, in the course of proceedings before it.
Facts
In April 1987, the United Food and Commercial Workers International Union, Local 175, filed an application for certification before the Ontario Labour Relations Board (OLRB) relating to employees at the chicken hatchery of Cuddy Chicks Limited. Section 2(b) of the Labour Relations Act states that the Act does not apply "to a person employed in agriculture". On filing the application, the Union gave notice that, if the employees were found to be agricultural employees, it would request the Board to hold s. 2(b) invalid as being contrary to ss. 2(d) and 15 of the Canadian Charter of Rights and Freedoms. The position of Cuddy Chicks was that the employees in question were agricultural employees.
Prior to the commencement of the hearing into this matter, Cuddy Chicks disputed the jurisdiction of the Board to subject its enabling statute to Charter scrutiny. At that point, in February 1988, a separate hearing was convened to determine whether the panel had jurisdiction to entertain the Charter issues raised by the Union. The decision of this second panel was reserved. The hearing by the first panel proceeded in March and April 1988. At the conclusion of this hearing, the panel unanimously held that the employees at the Cuddy Chicks hatchery were employed in agriculture, and therefore the Act did not apply. A majority of the panel then held that the Board had jurisdiction to rule on the Charter issue because, in the majority's view, the Board is a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter and because s. 52 of the Constitution Act, 1982 imposes an obligation on the Board to ensure that the law it applies is consistent with the supreme law of Canada. Under s. 106(1) of the Act, the Board has jurisdiction to decide questions of law relevant to the proceedings before it:
106.‑‑(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
Judicial History
Divisional Court
The Divisional Court held that the Board had jurisdiction to deal with the Charter issue, on three grounds. First, the Board was a court of competent jurisdiction under s. 24(1) of the Charter, since it had jurisdiction over the parties, subject matter and remedy and thus met the test set out in Mills v. The Queen, [1986] 1 S.C.R. 863. Second, it had jurisdiction to consider Charter issues under s. 52(1) of the Constitution Act, 1982. The court noted that prior to the Charter, labour boards were held competent to determine constitutional questions, such decisions being subject always to judicial review. The third basis on which the court found jurisdiction in the Board was the common law duty of labour boards to construe external statutes in the course of rendering decisions on labour matters before them.
Court of Appeal (Grange, Finlayson and McKinlay JJ.A.) (1989), 70 O.R. (2d) 179
A majority of the Court of Appeal (Grange and McKinlay JJ.A.) held that s. 52(1) of the Constitution Act, 1982 conferred jurisdiction on the Board to decide the constitutionality of its enabling statute. In construing the Charter in favour of the Union in the present case, the Board would not be issuing a declaration of invalidity, but merely including agricultural workers within its broad jurisdiction under the Act to certify unions. Accordingly, a remedy was available in the ordinary course of proceedings, and resort to s. 24 of the Charter was unnecessary. It was also unnecessary to address the issue of common law duty.
Finlayson J.A. in dissent held that the Board was not a court of competent jurisdiction under s. 24(1) of the Charter. While it had jurisdiction over the union and employer, as well as the remedy of certification, once the Board determined that the employees at the Cuddy Chicks hatchery were agricultural employees, it had no jurisdiction over the subject matter of the application and exhausted its jurisdictional competence. McKinlay J.A. agreed that the Board was not a court of competent jurisdiction, although in her view, it was unnecessary to decide that issue.
As to whether s. 52 of the Constitution Act, 1982 alone confers authority on the Board to apply the Charter, Finlayson J.A. held that although that provision does give the Board the authority to apply the Charter, it does not give it jurisdiction to strike down, ignore or treat as inoperative any provision of its enabling statute by reference to the Charter.
Following its unsuccessful appeals in the Ontario courts, Cuddy Chicks obtained leave to appeal to this Court. Interventions were filed by the Attorneys General for Ontario and Saskatchewan. In addition, the parties to Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 000, an appeal which originally was to be heard together with the present appeal, were permitted to intervene by order of the Chief Justice.
Issues
The issues as framed by the parties are as follows:
1.Did the Ontario Court of Appeal err in holding that s. 52 of the Constitution Act, 1982 conferred the right and duty on an administrative agency such as the OLRB to decide the constitutional validity of its enabling statute?
2.Did the Ontario Court of Appeal err in holding that the OLRB has the jurisdiction to decide the constitutional validity of s. 2(b) of its enabling statute by applying the Charter as part of a duty it has to consider statutes bearing on proceedings before it?
3.Was the Ontario Court of Appeal correct in holding that the OLRB was not a "court of competent jurisdiction" under s. 24(1) of the Charter?
Discussion
The essential issue before this Court is whether and on what basis the Board has jurisdiction to determine the constitutional validity of s. 2(b) of the Labour Relations Act, its enabling statute. This Court was not called upon to decide the substantive issue of whether s. 2(b) of the Act violates the Charter.
The power of an administrative tribunal to consider Charter issues was addressed recently by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570. That case concerned the jurisdiction of an arbitration board, appointed by the parties under a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the collective agreement. In ruling that the arbitrator did have such jurisdiction, this Court articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. This conclusion ensues from the principle of supremacy of the Constitution, which is confirmed by s. 52(1) of the Constitution Act, 1982:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Distilled to its basics, the rationale for recognizing jurisdiction in the arbitrator in the Douglas College case is that the Constitution, as the supreme law, must be respected by an administrative tribunal called upon to interpret law. In addition, the practical advantages of having constitutional issues decided at first instance by an expert tribunal confirm if not compel this conclusion. Practical considerations were canvassed at length in Douglas College and I need not repeat that discussion here. I would simply note the relevance of such considerations to the determination of whether, in the end, it makes sense for an administrative tribunal to decide whether a particular law is invalid because it violates the Charter.
It is essential to appreciate that s. 52(1) does not function as an independent source of an administrative tribunal's jurisdiction to address constitutional issues. Section 52(1) affirms in explicit language the supremacy of the Constitution but is silent on the jurisdictional point per se. In other words, s. 52(1) does not specify which bodies may consider and rule on Charter questions, and cannot be said to confer jurisdiction on an administrative tribunal. Rather, jurisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. Thus, a tribunal prepared to address a Charter issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought. While this analytical framework mirrors the requirements for a court of competent jurisdiction under s. 24(1) of the Charter as outlined in Mills v. The Queen, supra, as was the case in Douglas College, it is unnecessary to have recourse to s. 24(1) to determine whether the Board has jurisdiction over Charter issues. An administrative tribunal need not meet the definition of a court of competent jurisdiction in s. 24(1) of the Charter in order to have the necessary authority to subject its enabling statute to Charter scrutiny. In the present case, the relevant inquiry is not whether the tribunal is a "court" but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter.
Application to this Case
It first must be determined whether the Board has jurisdiction over the whole of the matter before it. It is clear that it has jurisdiction over the employer and the union. The issue here centres on its jurisdiction over the subject matter and remedy. The subject matter before the Board cannot be characterized simply as an application for certification, which would certainly fall within the authority of the Board. This is an application which requires the Board to subject s. 2(b) of the Act to Charter scrutiny in order to determine whether the application for certification is properly before it. Similarly, the remedy of certification requires the Board to refuse to give effect to s. 2(b) of the Act because of inconsistency with the Charter. Since the subject matter and remedy in this case are premised on the application of the Charter, the authority to apply the Charter must be found in the Board's enabling statute.
Section 106(1) of the Labour Relations Act stipulates that the Board has exclusive jurisdiction "to determine all questions of fact or law that arise in any matter before it . . . ." The legislature expressly, and without reservation, conferred authority on the Board to decide points of law. In addition, the Act confers powers on the Board to determine questions of law and fact relating to its own jurisdiction. Section 124, for example, gives it authority to decide if a matter is arbitrable. The issue, then, is whether this authority with respect to questions of law can encompass the question of whether a law violates the Charter. It is clear to me that a Charter issue must constitute a question of law; indeed, the Charter is part of the supreme law of Canada. This comports with the view expressed in Douglas College that the statutory authority of the arbitrator in that case to interpret any "Act" must include the authority to interpret the Charter. In the result, the Board has the authority to apply the Charter and to rule on the constitutionality of s. 2(b) of its enabling statute, in the course of the Union's application for certification.
Practical Considerations
The discussion of practical considerations in the Douglas College decision entailed an analysis of the institutional characteristics of administrative tribunals, such as their narrow range of expertise and the speed with which they deal with matters, in relation to the fundamental and often complex nature of Charter issues. This analysis concerned administrative tribunals in general, and the ultimate conclusion that practical concerns favour the finding of jurisdiction in administrative tribunals holds in the present case. My purpose here is not to rehearse that comprehensive discussion, but simply to identify those considerations which are more pronounced in the particular case of the Board.
The overarching consideration is that labour boards are administrative bodies of a high calibre. The tripartite model which has been adopted almost uniformly across the country combines the values of expertise and broad experience with acceptability and credibility. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at pp. 235-36, Dickson J. (as he then was) characterized the particular competence of labour boards as follows:
The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.
It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical. Therefore, while Board members need not have formal legal training, it remains that they have a very meaningful role to play in the resolution of constitutional issues. The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance. This is evidenced clearly by the weight which the judiciary has given the factual record provided by labour boards in division of powers cases; see, for example, Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733.
That having been said, the jurisdiction of the Board is limited in at least one crucial respect: it can expect no curial deference with respect to constitutional decisions. Furthermore, a formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.
An additional practical consideration which bears mention here is whether the Attorney General of the province will participate in proceedings before an administrative tribunal. Before the courts, a provision to obtain this participation exists. Finlayson J.A. commented that this sort of participation may be inappropriate in the case of tribunals established by government, but at the same time the lack of participation of the Attorney General unfairly places the burden of defending legislation on the parties. However, the Attorney General for Ontario expressed a willingness to intervene and make submissions in appropriate cases, and has in the past done so before the Board on issues of federalism under the Constitution Act, 1867. To the extent that the Attorney General will intervene, the relative disadvantage of administrative tribunals versus courts is lessened.
It is apparent, then, that an expert tribunal of the calibre of the Board can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. In the present case, the experience of the Board is highly relevant to the Charter challenge to its enabling statute, particularly at the s. 1 stage where policy concerns prevail. At the end of the day, the legal process will be better served where the Board makes an initial determination of the jurisdictional issue arising from a constitutional challenge. In such circumstances, the Board not only has the authority but a duty to ascertain the constitutional validity of s. 2(b) of the Labour Relations Act.
This view also makes sense within the larger context of Canadian constitutional jurisprudence. The capacity of labour boards to consider constitutional questions relating to their own jurisdiction has long been recognized. An early expression of this principle is found in The Queen v. Ontario Labour Relations Board, Ex parte Dunn (1963), 39 D.L.R. (2d) 346 (Ont. H.C.), a case which was cited by Estey J. in Northern Telecom Canada Ltd. v. Communication Workers of Canada, supra, at p. 756, in support of the jurisdictional competence of labour boards in constitutional matters:
McRuer C.J.H.C., in giving judgment, made reference at p. 307 to the limited but important role to be played by the administrative agency in the determination of the constitutional questions:
The Board cannot judicially determine constitutional questions but it has power to entertain an objection to its jurisdiction on constitutional grounds and to have the grounds of the objection stated.
See also Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147, and Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031.
What these cases speak to is not only the fundamental nature of the Constitution, but also the legal competence of labour boards and the value of their expertise at the initial stages of complex constitutional deliberations. These practical considerations have compelled the courts to recognize a power, albeit a carefully limited one, in labour tribunals to deal with constitutional issues involving their own jurisdiction. Such considerations are as compelling in the case of Charter challenges to a tribunal's enabling statute. Therefore, to extend this "limited but important role" of labour boards to the realm of the Charter is simply a natural progression of a well established principle.
Disposition
In the application for certification brought by the Union, the Board had jurisdiction over the parties, subject matter and remedy. In the exercise of this jurisdiction, it was required to respect the supremacy of the Constitution as expressed in s. 52(1) of the Constitution Act, 1982 and had a duty to subject its enabling statute to Charter scrutiny. It is unnecessary to consider whether the Board is a court of competent jurisdiction within the meaning of s. 24(1) of the Charter.
I would dismiss the appeal with costs.
//Wilson J.//
The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by
Wilson J. -- In my concurring reasons in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, I agreed with my colleague Justice La Forest that an Arbitration Board appointed by the parties under the Labour Code, R.S.B.C. 1979, c. 212, had jurisdiction, by virtue of s. 52(1) of the Constitution Act, 1982, to determine the Charter issue raised by the grievance and that it was not necessary in that case to determine whether the Board was a "court of competent jurisdiction" within the meaning of s. 24(1) of the Canadian Charter of Rights and Freedoms. I added the following qualification to my concurrence at pp. 606-7:
I would, however, prefer to leave open the question whether a tribunal may have such jurisdiction even in the absence of specific provisions in the governing legislation and in the collective agreement such as those heavily relied on by my colleague.
In the present appeal my colleague has re‑stated the position he took in Douglas College that the authority to apply the Charter must be found in the tribunal's enabling statute and he has found once again that its jurisdiction is found there, that the broad jurisdiction conferred on the Board by s. 106(1) of the Labour Relations Act, R.S.O. 1980, c. 228, includes the authority to interpret the Charter.
In concurring with my colleague in the present appeal I would accordingly wish once again to add the qualification which I added to my concurrence in Douglas College. The absence of legislative authority to deal with the Charter issue in the governing statute is not, in my view, necessarily determinative of a tribunal's jurisdiction, since the authority and obligation to apply the law may be grounded elsewhere: McLeod v. Egan, [1975] 1 S.C.R. 517. Additionally, it may be necessary to proceed to s. 24(1) of the Charter and decide whether, on the basis of the tests set out in Mills v. The Queen, [1986] 1 S.C.R. 863, the tribunal is a court of competent jurisdiction to decide a Charter issue arising in the context of the relief claimed.
Appeal dismissed with costs.
Solicitors for the appellant: Fasken, Campbell, Godfrey, Toronto.
Solicitors for the respondent Ontario Labour Relations Board: Gowling, Strathy & Henderson, Toronto.
Solicitors for the respondent United Food and Commercial Workers
International Union, Local 175: Caley & Wray, Toronto.
Solicitor for the interveners Canada Employment and Immigration Commission and the Attorney General of Canada: John Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General for Saskatchewan: Brian Barrington‑Foote, Regina.
Solicitors for the intervener Marcelle Tétreault‑Gadoury: Campeau, Ouellet, Nadon & Lussier, Montréal.