TMI Blog1948 (10) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... missing these employees had been guilty of an unfair labour practice within the meaning of S.8 (1) (e) of the Act applied to the appellant, the Labour Relations Board of Saskatchewan, for orders requiring the respondent to reinstate them and to pay them the monetary loss suffered by them by reason of their dismissal. On 10th, 11th and 12th June 1917, the union's applications were heard by the appellant Board and in the course of the hearing the application in respect of one of the six employees was withdrawn. Both the union and the respondent appeared by counsel before the appellant Board and called evidence. The appellant Board, having heard evidence and argument, found that the respondent had discriminated : against each of the five employees id regard to tenure of employment with a view to discouraging member ship in or activity in or for a labour organisation (the applicant trade union) and had discharged them contrary to the provisions of the Act. 4. On 8th July 1947, the appellant Board issued orders requiring the respondent to reinstate each of the five employees and to pay each of them the sum of $200.80, being the sum which each of them would have received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted by the Governor-General shall be selected from the respective Bars of those Provinces. Section 98. The Judges of the Quebec shall be selected from the Bar of that Province. Section 99. The Judges of the Superior Court shall hold office daring good Behaviour, but shall be (sic) able by the Governor-General on Address of the (sic) and House of Commons, Section 100. The Salaries, Allowances, and I of the Judges of the Superior District, and (sic) Courts (except the Courts of Probate in Nova Scotia (sic) New Brunswick), and of the Admiralty Courts in where the Judges thereof are for the time being paid salary, shall be fixed and provided by the Parliament of Canada. 8. It is in the application of these section is the constitution and functions of the app(sic) Board that the problem lies which their (sic) ships have to determine and they would (sic) outset emphasise that its solution is not (sic) found by answering the question whether in certain of its functions the appellant Board exercises judicial power. It may do so and yet have constitutional validity. For, whatever double may at one time have been entertained, two propositions cannot now be challenged, (1) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns also of employer, employer's agent, labour organization, minister and trade union which need not be set out. 12. Section 3 gives employees the right to organise in trade unions and to bargain collectively through representatives of their own choosing and provides that the representatives selected for the purpose of bargaining collectively by the majority of employees in a unit appropriate for such purpose shall be the exclusive representatives of all employees in such unit for the purpose of bargaining collectively. 13. Section 4 (which is all important for the purpose of this appeal) prescribes that there shall be a Board to be known as the Labour Relations Board composed of seven members appointed by the Lieutenant Governor in Council at such salaries or remuneration as be deems fit, that the Lieutenant Governor in Council shall name a chairman and vice-chairman of the board, and that the members of the board shall be equally representative of organised employees and employers, and, if the Lieutenant Governor in Council deems it desirable, of the general public. The same section lays down rules of procedure for the Board. 14. Section 5 defines the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. 18. Section 10 provides (1) that in any application to the Court arising out of the failure of any person to comply with the terms of any order filed in pursuance of S. 9, the Court may refer to the Board any question as to the compliance or non-compliance of such person or persons with the order of the Board and (2) that the application to enforce any order of the Board may be made to the Court by and in the name of the Board, any trade union affected or any interested person, and upon each application being heard the Court shall be bound absolutely by the findings of the Board and shall make such order or orders as may be necessary to cause every party with respect to whom the application is made to comply with the order of the Board and (3) that the Board may in its own name appeal from any judgment, decision or order of any Court affecting any of its orders or decisions. 19. Section 11 provides for the imposition of penalties on any person who takes part in, aids, abets, counsels or procures any unfair labour practice, s.12 for the appointment by the Lieutenant Governor in Council in certain events of the controller of a business, and S. 13 for the making of rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so-called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also. 25. Whether in the present case the power exercised by the appellant Board under s. 5 (e) of the Act is a judicial power, their Lordships do not decide. For the elements in its constitution and functions which at least make it doubtful! whether it is in the strict sense a Court exercising judicial power at all appear to lead conclusively to the opinion that it is not a superior, district or county Court or a Court analogous thereto. 26. It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject (sic) subject, and that it is the duty of the Court in decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings. Here at once a striking departure from the traditional concepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Board must be viewed; and, even if the issue so raised can be regarded as a justiciable one, it finds no analogy in those issues which were familiar to the Courts of 1867. 28. This matter may be tested in another way. If the appellant Board is a Court analogous to the superior and other Courts mentioned in S. 96, British North America Act, its members must not only be appointed by the Governor-General but must be chosen from the Bar of Saskatchewan. It is legitimate therefore to ask whether, if trade unions had in 1867 been recognised by the law, if collective bargaining had then been the accepted postulate of industrial peace, if, in a word, the economic and social outlook had been the same in 1867 as it became in 1944, it would not have been expedient to establish just such a specialised tribunal as is provided by s. 4 of the Act. It is as good a test as another of analogy to ask whether the subject-matter of the assumed justiciable issue makes it desirable that the Judges should have the same qualifications as those which distinguish the Judges of superior or other Courts. And it appears to their Lordships that to this question only one answer can be given. For wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it seems clear that it would not avail the tribunal if it purported to exercise a jurisdiction wider than that specifically entrusted to it by the Act. 31. At this stage their Lordships reach the conclusion that the jurisdiction exercisable by the Board is not such as to constitute it a Court within 8. 96, British North America Act. They do not think it necessary to consider whether it is a jurisdiction more nearly analogous to that exercised at the time of confederation by justices of the peace - a matter to which much argument was directed-nor would they pursue the comparison with the jurisdiction of the Workmen's Compensation Board, which was also pressed upon them by counsel. It is sufficient to say that it is not in their opinion analogous to that of a superior, district or county Court. 32. But before parting with the case, their Lordships think it proper to observe upon two - cases which have recently come before them, Maritneau Sons Ltd. v. City of Montreal 1932 A. ?. 113 : (101 L. J. P. C. 49) and Toronto v. York, (1938 a. c. 415 :107 l. J. P. C. 43) (supra), of which passing mention has already been made, and more particularly also upon Re Adoption Act of Ont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished purported to cloths it with the functions of a Court and to vest in it judicial powers and that pro tanto, since its members were not appointed by the Governor-General, the Act was invalid. But it is clear that in that case the question did not arise for argument, as it arises in the case under appeal, whether, upon the assumption that judicial power was vested in the Board, the Board was thereby brought within the ambit of 8. 96. It is true that at an early stage in the judgment delivered by Lord Atkin the question was asked. Is, then. the Municipal Board of Ontario a Superior Court, or a tribunal analogous thereto? But it seems to have been assumed by their Lordships that if the power vested in it was judicial, it was snob a tribunal, for (as Duff C. J. pointed out in the case cited) it is obvious that their Lordships did not consider, because presumably there was no occasion to do so, the distinction between the Courts that come within the intendment of S. 96, British North America Act, and other Courts and tribunals. 35. Finally, in re the Adoption Act (1988 s. C. R. (Canada 398) it fell to the Supreme Court of Canada to determine the constitutionality (sic) number o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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