Canada (Attorney General) v. Valois, [1986] 2 S.C.R. 439
Randolph Valois Appellant
v.
Attorney General of Canada Respondent
indexed as: canada (attorney general) v. valois
File No.: 17814.
1986: May 2; 1986: October 23.
Present: Dickson C.J. and Beetz, Chouinard, Wilson and Le Dain JJ.
on appeal from the federal court of appeal
Unemployment insurance ‑‑ Labour disputes ‑‑ Unemployment due to stoppage of work ‑‑ Claimant refusing to cross picket line because of intimidation ‑‑ Claimant not participating in the labour dispute ‑‑ Whether members of claimant's union participated in the labour dispute ‑‑ Whether claimant entitled to unemployment insurance benefits ‑‑ Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, s. 44.
Appellant attempted several times to report to work during a strike by a union, other than his own, at the mill where he worked, but each time he was preventedfrom crossing the picket line by threats of violence from the pickets. Under s. 44 of the Unemployment Insurance Act, 1971, an employee who has lost his employment by reason of a stoppage of work attributable to a labour dispute is entitled to unemployment insurance benefits if he proved that (1) he was not participating in the labour dispute (s. 44(2)(a)); and (2) he did not belong to a grade or class of workers that included members who were employed at the premises and were participating in the dispute (s. 44(2)(b)). Appellant's application for unemployment insurance benefits was denied by the Unemployment Insurance Commission. On behalf of himself and all the other members of his union, appellant appealed the Commission's decision to the Board of Referees. It was there agreed that the Board's decision with respect to the appellant would apply to the others. The Board allowed the appeal and that decision was confirmed by the Umpire. The Commission's application for judicial review pursuant to s. 28 of the Federal Court Act was allowed. The Federal Court of Appeal did not disturb the finding, made by both the Board and the Umpire, that appellant did not participate in the labour dispute, but was of the opinion that the issue of s. 44(2)(b) had not been addressed. This appeal is to determine whether the requirements of s. 44(2)(b) were met.
Held: The appeal should be allowed.
The provisions of the Unemployment Insurance Act, 1971 do not require claimants who have lost their employment by reason of a stoppage of work attributable to a labour dispute to expose themselves to danger to avoid being disentitled to benefits. They, and the other members of a grade or class of workers to which they belong, must make a genuine effort to report for work. But if, having done so, they are unable safely to report to work because of violence or threats of violence at a picket line, or otherwise, they will not be considered to be participating in the labour dispute. In the case at bar, the evidence adduced before the Board of Referees indicated that the appellant's union did not contribute financially to the strike and that it was willing to have its members cross the picket lines, if it could be done safely, but that there were serious threats proferred by the pickets. On the basis of this evidence, the Board‑‑and later the Umpire‑‑agreed that there was some danger of violent action and concluded that "they did not participate" in the labour dispute. The decision that "they" did not participate was a decision referring to all the members of the appellant's union. Thus no member of the grade or class participated in the labour dispute and this is sufficient to satisfy the requirements of s. 44(2)(b). In any event, if the Board's decision only settles the appellant's case, then the application of that decision to all claimants, as agreed upon, entails that, like the appellant, none of the members of the union participated in the labour dispute. This also disposes of the s. 44(2)(b) issue.
Cases Cited
Distinguished: Minister of Employment and Immigration v. Carrozzella, [1983] 1 F.C. 909; referred to: Attorney General of Canada v. Umpire (Unemployment Insurance Act), [1977] 2 F.C. 696.
Statutes and Regulations Cited
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, s. 44.
Authors Cited
Hickling, M. A. "Labour Disputes and Disentitlement to Benefits". In Unemployment Insurance. Course co‑ordinator Allan H. MacLean. Vancouver: Continuing Legal Education Society of British Columbia, 1983.
APPEAL from a judgment of the Federal Court of Appeal1, which set aside a decision by Dubinsky J.2, sitting as an umpire, entitling appellant to unemployment insurance benefits. Appeal allowed.
1 F.C.A., No. A‑879‑82, May 18, 1983.
2 CUB‑7805.
Raymond Koskie, Q.C., and Mark Zigler, for the appellant.
Duff Friesen, Q.C., and Donald J. Rennie, for the respondent.
The judgment of the Court was delivered by
1. Chouinard J.‑‑At issue in this appeal is the entitlement to unemployment insurance benefits of an employee who has lost his employment by reason of a stoppage of work attributable to a labour dispute.
2. The appellant, a member of the International Union of Operating Engineers, Local 865, was employed as a stationary engineer at the Thunder Bay mill of Abitibi‑Price Inc.
3. On July 3, 1980, the Canadian Paperworkers' Union went on strike at the Thunder Bay mill as well as other mills of the Company. Picket lines were set up and the appellant did not work from July 4 until August 1, 1980 when the stoppage of work was terminated.
4. The Canadian Paperworkers' Union represented by far the largest number of employees at the Thunder Bay mill, some 322 out of a total of approximately 370.
5. On July 7, 1980, the appellant applied for unemployment insurance benefits. His application was denied by the Unemployment Insurance Commission.
6. On behalf of himself and all the other members of his Union, the appellant appealed the decision of the Commission to the Board of Referees.
7. It was agreed that: "The decision of the Board of Referees with respect to Randolph Valois will be applied to each claimant whose name appears on this list", namely the other members referred to above.
8. The Board of Referees unanimously allowed the appeal and that decision was confirmed by the Umpire.
9. The Commission then made an application for judicial review to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. The Federal Court of Appeal unanimously allowed the application, set aside the decision of the Umpire and referred the matter back "to an Umpire for decision on the basis that this applicant, since he falls within the provisions of Section 44(1) of the Unemployment Insurance Act, 1971, must, in order to be entitled to receive benefits, prove that he meets the conditions enumerated in subsection 44(2)(b) of the Act."
10. The Court added:
We restrict the reference back to subsection (b) of Section 44(2) since we have not been persuaded that the Umpire, in finding that this claimant had met the onus imposed by subsection 44(2)(a) committed any error reviewable under Section 28 of the Federal Court Act.
11. Section 44 of the Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, reads:
44. (1) A claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which he was employed is not entitled to receive benefit until
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupation that he usually follows, or
(c) he has become regularly engaged in some other occupation,
whichever event first occurs.
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interested in the labour dispute that caused the stoppage of work; and
(b) he does not belong to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage is taking place and are participating in, financing or directly interested in the dispute.
(3) Where separate branches of work that are commonly carried on as separate businesses in separate premises are carried on in separate departments on the same premises, each department shall, for the purpose of this section, be deemed to be a separate factory or workshop.
(4) In this Act, "labour dispute" means any dispute between employers and employees, or between employees and employees, that is connected with the employment or non‑employment, or the terms or conditions of employment, of any persons.
12. The rule laid down by s. 44 is that a claimant who lost his employment by reason of a stoppage of work attributable to a labour dispute is not entitled to receive benefit. It is not disputed that the rule applies to the appellant in the circumstances of this case.
13. The rule, however, is not absolute. The disentitlement will continue until one of the events described in paras. (a), (b) or (c) of subs. (1) occurs. We are not concerned with either of these requirements for re‑entitlement in this case.
14. Section 44(2) provides another exception to the rule by making subs. (1) inapplicable if a claimant proves both elements contained in paras. (a) and (b). It has been the jurisprudence of the Federal Court of Appeal, with which I agree, that for his entitlement to be restored by application of subs. (2), a claimant must prove both that he himself did not participate in the labour dispute and that he did not belong to a grade or class of workers, some of whom did participate in the sense of s. 44(2). See Attorney General of Canada v. Umpire (Unemployment Insurance Act), [1977] 2 F.C. 696; Minister of Employment and Immigration v. Carrozzella, [1983] 1 F.C. 909; and the judgment of the Court of Appeal in this case.
15. In Unemployment Insurance, published by the Continuing Legal Education Society of British Columbia, 1983, under the heading "Labour Disputes and Disentitlement to Benefits", M. A. Hickling writes at p. 3.1.1:
The purpose of the unemployment insurance scheme as originally conceived was to afford protection to employees thrown out of work as a result of economic circumstances. It was not intended to compensate those who lost their employment through industrial misconduct; who left their job voluntarily or without just cause, or who were not available for employment. Hence the disqualifications under ss. 40 and 41 of the Unemployment Insurance Act.
Nor was it the intention of Parliament that the unemployment insurance fund to which not only the employee, but also the employer and the state contribute, be used to assist employees or their unions in labour disputes. The funds to which employers had contributed ought not to be used against them. The neutrality of the state had to be preserved. Hence the provisions of s. 44 of the Unemployment Insurance Act . . . .
16. The author describes the operation of s. 44 as follows at pp. 3.1.1 and 3.1.2:
Before the claimant is disentitled the onus is on the U.I.C. to establish
(1) That there was a labour dispute at the premises in question;
(2) That the labour dispute caused a stoppage of work there; and
(3) That the claimant lost his employment by reason of that stoppage.
If those points are established then the claimant is disentitled to benefit until one of the following events occurs:
(4) The stoppage of work due to the labour dispute has come to an end; or
(5) he becomes bona fide employed elsewhere in the occupation he usually follows; or
(6) he has become regularly engaged in some other occupation.
Further, a claimant who is thrown out of work as a result of a labour dispute at his place of employment has another avenue of escape if he can bring himself within the protection of s. 44(2). To do this he must show that neither he nor any member of his grade or class employed at the site of the dispute immediately prior to the stoppage are participating in, financing, or have any direct interest in the dispute.
17. No difficulty arises as to the fact that the appellant did not himself participate. The evidence was that the appellant went to the picket line some 10 or 12 times during the strike and was each time prevented from crossing it by threats from the pickets. There is a concurrent finding of the Board of Referees and the Umpire on this point. In his reasons, the Umpire wrote:
I am satisfied that the established jurisprudence does not demand of a claimant that he actually suffer bodily injury before he can establish that he was not participating in the labour dispute. It is sufficient if he has reasonable grounds for believing that he would have suffered bodily injury. I have not the slightest doubt that this claimant would have suffered bodily injury had he persisted. The Board's finding of fact was not perverse in this case and the appeal against the Board's decision must be dismissed.
18. The Federal Court of Appeal would not disturb these findings. That the appellant satisfied the requirements of s. 44(2)(a) is not in issue. The respondent does not challenge the findings of the Board of Referees and of the Umpire.
19. As to s. 44(2)(b), however, the Federal Court of Appeal was of the view not only that the appellant had not discharged the burden of proof, but also that the Umpire did not even address this issue. Heald J., speaking for the Court, had this to say:
In our view, the evidence in this case does not satisfy the requirements of said Subsection 44(2)(b). The claimant requests that his appeal be representative not only of his claim but of the claims of some fifteen of his co‑workers. The Commission agreed only that the decision in this claimant's case would apply to each of his fifteen co‑workers. We can find no evidence of any agreement to the effect that the evidence of each claimant in all respects so as to satisfy the requirements of subsection (b) of Section 44(2). Section 44 does not, in our view, lend itself to this kind of procedure where the state of mind of each claimant is a material ingredient to the success of each individual claimant and to all claimants as a group (Compare CUB‑3416‑‑December 28, 1973). In any event, since the Umpire did not address the issue of compliance with the requirements of Subsection 44(2)(b) and since the evidence herein does not, in our view, establish compliance with that subsection, it follows that the Section 28 application should be allowed...
20. The appellant raises the three following points:
‑‑ A claimant under the Act is not required to prove the state of mind of each member of his grade or class of worker ("the Class") in order to prove that no members of the Class are "participating" in a labour dispute, within the meaning of Section 44(2)(b) of the Act.
‑‑ The Court of Appeal erred in determining that the agreement of the parties that the facts and determinations in the Appellant's case would be "representative" of the facts and determinations in the cases of all other members of the Class, did not satisfy the requirements of Section 44(2)(b) of the Act.
‑‑ The Court of Appeal erred in determining that the Umpire did not address the issue of compliance with Section 44(2)(b) of the Act.
21. The respondent does not dispute the first point and so told the Court at the hearing. It is not argued in his factum. The respondent rather states:
The question of whether a claimant, or members of a grade or class of workers to which he belongs, are participating in a labour dispute is a question of fact to be determined in each case.
22. With this, I agree.
23. I also agree with the following extracts from the respondent's factum describing the object of s. 44 and the manner in which it operates within the scheme of the Act:
... one of the objects of the Act is to ensure that unemployment insurance benefits are paid only to claimants who have made a genuine effort to report for work. See, for example, sections 40 and 41 of the Act. In the context of labour disputes, that objective is attained by provisions that disentitle not only those directly involved in a labour dispute but, also, others who extend support to those directly involved.
...
Consistent with the objective of these provisions, Parliament has provided that a claimant may establish that he is not disentitled for benefits if he proves that:
a) he is not participating in the labour dispute; and
b) if he belongs to a grade or class of workers employed at the premises, such group does not include members who are participating in the dispute.
The disentitlement is imposed collectively upon claimants who belong to a grade or class of workers that included members who were employed at the premises and are participating in the dispute. This ensures that benefits are not paid to claimants who, personally or through the actions of members of a grade or class of workers to which they belong, extend support to persons directly involved in the dispute.
It is respectfully submitted that these provisions do not require claimants to expose themselves to danger to avoid being disentitled for benefits. They, and the other members of a grade or class of workers to which they belong, must make a genuine effort to report for work. But if, having done so, they are unable safely to report to work because of violence or threats of violence at a picket line, or otherwise, they will not be considered to be participating in the labour dispute.
24. The appellant does not challenge these propositions of the respondent.
25. We are left then with the second and third points raised by the appellant.
26. The respondent, on the other hand, defines the issues in the following manner:
The issues in this appeal are:
a) Whether there was any evidence and finding of fact by the Board of Referees or the Umpire that the Appellant did not belong to a grade of workers that included members who were participating in the labour dispute at the premises of their employment; and
b) Whether the agreement of the parties that " . . . the decision of the Board of Referees with respect to (the Appellant) will be applied to each claimant . . ." relieved the Appellant of the requirement of establishing that he did not belong to a grade or class of workers that included members who participated in the labour dispute.
27. It is difficult to find a common denominator underlying the issues as described by one and then by the other.
28. Simply put, the issue, in my view, is whether the requirements of s. 44(2)(b) have been met. The Federal Court of Appeal was of the view that the issue of s. 44(2)(b) had not been addressed and hence not disposed of.
29. In my understanding the position of the appellant is twofold. First, the decision of the Board of Referees relates to all members of the Union and is to the effect that they did not participate in the labour dispute. It is tantamount to a declaration that none of the members of the appellant's grade or class participated and this is sufficient to satisfy s. 44(2)(b) and dispose of the issue. The appellant writes: "The Board . . . held such evidence to be conclusive proof that "they" (i.e. the Appellant and the Class) did not participate in the labour dispute".
30. Secondly, if the decision of the Board is a decision in the case of Valois only and not a declaration with respect to all, then applying the decision of the Board to all claimants, as it was agreed to do, entails that like Valois none of them participated. This also disposes of the s. 44(2)(b) issue.
31. In my respectful view, both propositions are well founded and the appellant should succeed on the basis of either one of them.
32. Before examining more closely these two propositions, mention must be made of the point raised by the appellant that only at the level of the Court of Appeal did the respondent contend that the Board had failed to make a finding under s. 44(2)(b). The appellant argued in essence that the respondent should not have been permitted to submit this new ground to the Court of Appeal and should not be permitted to submit it to our Court. The appellant writes:
The Commission did not contend prior to the proceeding before the Court of Appeal that the Board had failed to make a finding under Section 44(2)(b) of the Act. The case before the Umpire was argued on the basis of whether the respondent was participating in the labour dispute.
33. Indeed, although s. 44(2)(b) was referred to, it was not the primary issue put before the Board and the Umpire by the Commission. The position of the Commission was that the appellant and the other members of his Union voluntarily honoured the picket line and thus themselves became participants in the labour dispute. In the written observations of the Commission to the Board of Referees, it was stated:
The claimant, a member of Local 865 International Union of Operating Engineers, along with other employees, members of the same union, voluntarily honoured picket lines set up by the striking union, Locals 134 and 249 Canadian Paperworkers Union, thereby becoming participants in the dispute . . . . As a result, the claimant and members of his grade and class, are unable to prove all the requirements of Section 44(2) of The Unemployment Insurance Act, necessary to obtain relief from disentitlement imposed under Section 44(1).
...
The issue in this case, and those whose names are on the nominal list, is that voluntary honouring of picket lines constitutes participation in the dispute.
...
With respect to the case at hand, there is no evidence whatsoever of violence or threats of violence whereas there is evidence of voluntary honouring of picket lines based on the principles of union solidarity.
Information from the employer which appears in Exhibits 4.4 and 4.8 reveals that members of the claimant's grade and class and union failed to cross the picket lines even though the lines are reported as orderly. The employer also confirms that work was available. It should be noted that Office Staffs were able to report to work. Consequently, the claimant and those whose names appear on the nominal list of appellants cannot prove all the provisions for relief from disentitlement under Section 44(2) namely, participation.
34. In the written observations of the Commission to the Umpire, the following statements were made:
Members of other unions (including the claimant) working on the same premises, lost their employment by reason of the stoppage of work attributable to the CPU labour dispute and participated in the said dispute when they failed to cross the picket line to report for work.
...
The Commission submits that the evidence on file does not support the Board's finding that there was genuine fear of violence on the part of the claimant.
...
The Commission submits that the claimant failed to prove that neither he nor the others for whom this representative proceeding has been taken, were participating in the strike as interpreted in the jurisprudence. Therefore, neither he nor the others included in this appeal have proven that they ought to find relief under Section 44(2) of the Act.
35. The primary issue therefore was whether or not the appellant and the other members of his Union were participating in the labour dispute by voluntarily honouring the picket line and whether or not there was genuine fear to justify their not crossing the picket line.
36. The point made by the appellant may be well taken but need not, in my view, be decided as the s. 44(2)(b) argument of the respondent would not be decisive against the appellant in this case. Indeed, as already mentioned, the appellant is entitled to succeed on either one of his two propositions.
37. Dealing with the appellant's first proposition, I turn now to the evidence before the Board, including the information provided by the Commission in its observations and that disclosed at the Board's hearing, and to the decision of the Board.
38. The appellant submits that the evidence before the Board was that threats of violence had been made against those who attempted to cross the picket line and that the Union and the employer had executed a letter of understanding whereby members of the Union would report to work, provided they could "safely cross the picket line".
39. The respondent submits that there was no evidence before the Board of Referees that the grade of workers to which the appellant belonged did not include members who were participating in the labour dispute by voluntarily refusing to cross the picket line of other workers who were on strike, as required by s. 44(2)(b) of the Act.
40. The respondent quotes the following passage from the statements of the appellant at the hearing as he was questioned by the Commission's representative, Mr. Laine:
Laine: When you were there did you notice, were you aware that there were other members of your union around at the time?
Valois: No, I didn't notice any others, no.
Laine: Have you had conversations with any of your fellow members as to problems that they had approaching picket lines, if they did so?
Valois: Not really. The impression I got was that some of them waited until the next week when everybody got calmed down because the first three or four days the men were quite worked up and they ran into the same problems I ran into the next Tuesday just asking if they could go to work, and they were told no.
41. With regard to the last answer where the appellant relies on the impression he got, it is manifest that this is not the best evidence. Yet where he says "they ran into the same problems I ran into" he is clearly referring to his fellow Union members, all the members of his class or grade.
42. There were also present at that hearing other Union representatives, namely Fred Grigsby, international representative of the International Union of Operating Engineers, and Léo Roy, the local business representative of the Union. Both addressed the Board and said, in part, the following:
Joyal: You did not contribute any of your dues to finance that strike?
Grigsby: You'd better believe it.
...
Grigsby: We are taking the position that at no time did we refuse to go to work, and we'll bring evidence to this effect. We've actually tried to work arrangements out with the employer to go to work. I have a statement signed by the managers of the two mills, and Leo Roy, the president of the local here. I would like to enter this here as evidence. I might read it to you first and make copies of this. It's a letter of understanding between Abitibi‑Price Thunder Bay and Fort William Divisions, and Abitibi‑Price Fine Papers Port Arthur Division and the International Union of Operating Engineers Local 865, and it's dated July 7th, 1980: "During the term of the strike now in effect the International Union of Operating Engineers Local 865 agrees to provide qualified employees to perform essential services and emergency repairs deemed necessary by the company, to ensure the safety and security of mill property and facilities provided employees can safely cross the picket lines without any form of physical harassment or intimidation to themselves and their families. . . ."
...
Grigsby: Well, I says that we were intimidated‑we were threatened and the specific language that was used was the kind of thing.
...
Grigsby: . . . That we would try to keep all of these things in order, the company would in turn try to do some things for us in terms of insurance and medical programs, this kind of thing, and we just couldn't get through. And to get back to what I said earlier, the company, in Exhibit 4, said we couldn't get through the picket lines, they recognized this.
...
Grigsby: I would just like this observation, that this is the first time the CPU were able to outmanoeuvre Abitibi in that they picked 19 mills, and for what reason I don't know, but we experienced‑‑with the exception of the one mill Provincial‑‑wherever we were we experienced resistance this time that we never experienced before....‑‑this time they shut the door down completely and you could see for the first time ever we were stopped at the picket line . . . .
43. It can be seen from the above extracts that Grigsby, who kept using the pronoun "we", was speaking in the name of and with respect to all the members of his Union employed at the Thunder Bay mill.
44. Roy, in the following extract, refers to the situation on the picket line at two mills, one of which being that at Thunder Bay:
Roy: I drove by there, I got pretty close to both Mills. As a matter of [f]act I live in [C]urrent River, if you know where that is. The mills are only a few miles apart from my house, and I drove by there every hour in case of a little action, and you couldn't even stop your car.
45. From a reading of the transcript of the oral hearing before the Board of Referees, it is apparent that it is an informal hearing. Mr. Grigsby and Mr. Roy were not sworn witnesses. In fact, the appellant himself, who was examined by both sides, does not appear to have been sworn. Be that as it may, no issue was taken with regard to that procedure. On the contrary, Mr. Laine, who represented the Commission at the hearing, when asked at the end whether he had any more questions, replied:
Laine: I am satisfied with the information from the Thunder Bay Mill.
46. It follows from the above that the Union did not contribute financially to the strike, that it was willing to have its members cross the picket lines, if it could be done safely, that a letter of understanding to that effect, read into the record by Mr. Grigsby, was executed between the Union and the employer, and that there were serious threats proferred by the pickets.
47. These features clearly distinguish this case from that of Carrozzella, supra, on which the respondent relied, where the Federal Court of Appeal unanimously reversed the decision of an Umpire and restored the decision of the Board of Referees refusing the claimant's application. In that case the claimant did not cross the picket line, not because of intimidation, but because the Local of his Union at the plant where he had obtained employment honoured the picket line of other striking trades and if he did not do likewise his "travel card" would be revoked and he would lose his job. The judgment of the Court of Appeal is summarized in the following extract from the headnote:
There is a strong presumption when a person does not cross a picket line that he is doing so out of sympathy with the strikers. This presumption can be rebutted if, for example, he truly feared actual violence. The Board of Referees found that there was no proof of intimidation and that the respondent was following the rules of the London Local, which honoured picket lines, and was therefore participating in the work stoppage. To reverse that finding the Umpire would have had to find that the respondent fell within both paragraphs (a) and (b) of subsection 44(2). Since he did not give consideration to the requirements of paragraph (b) and he did not reverse, on proper grounds, the finding of the Board of Referees, subsection 44(2) cannot be applicable.
48. In the case at bar, on the basis of the information it had obtained from the appellant and the Union representatives and of the information provided in the observations of the Commission, the Board of Referees wrote:
The evidence obtained from some members of the IBEW and IUOE indicates that although not molested there was very threatening language and credence of their hesitation in the face of these threats and considering that they only represent a very small percentage of the total employees concerned it would not have been prudent for them to force the issue.
49. The Board then concluded:
Taking these facts into consideration, and accepting as representative, the statements of the witnesses who attempted to cross the picket lines, the Board agrees that there was some danger of violent action and it is the unanimous opinion of the Board that they did not participate in accordance with existing jurisprudence. The appeal is allowed.
50. As the appellant suggests and given the evidence before the Board, the decision that "they" did not participate was a decision referring to all the members of the Union. Thus no members of the grade or class participated in the labour dispute and this, in my view, is sufficient to dispose of the s. 44(2)(b) issue. The same can be said about the decision of the Umpire confirming that of the Board.
51. As to the appellant's second proposition, much of the argument turned on the meaning and effect of the agreement between the parties recorded by the Commission in these terms:
The decision of the Board of Referees with respect to Randolph Valois will be applied to each claimant whose name appears on this list.
52. The respondent agrees that this is a proper case for a representative proceeding, but he submits:
The Commission agreed that the decision of the Board of Referees would be applied to each claimant whose name appears on the list submitted with this appeal. If the Appellant established that the grade or class of workers to which he belongs did not include members who were employed at the premises and were participating in the dispute, the other claimants who belong to the same group would also be able to establish that fact, and the Commission, by its agreement, relieved those claimants of the obligation to prove that same fact in each case provided it was proven in the case of the Appellant. Thus the Umpire correctly asserted that the cases of the others were "on all fours" with that of the Appellant.
The Commission never agreed that proof that the Appellant was not participating in the labour dispute would be accepted as proof that the grade or class of workers to which he belongs did not include members who were employed at the premises and were participating in the dispute. Rather, as may be seen from the facts referred to in paragraphs 5 and 11 of this Factum, the Commission clearly put that fact in issue before both the Board of Referees and the Umpire.
53. It may be true that, as framed, the agreement does not refer to the facts, but only to the decision. It is to be remembered, however, that there were before the Board of Referees not just one application, that of the appellant, but fifteen applications namely that of the appellant and those of his fourteen fellow members of his Union which the Union itself presented to the Board in the name of its members. As put by the appellant in his factum:
If the representative claimant is not participating in the labour dispute, then the other members of his grade or class whom he represents are also not participating in the labour dispute.
54. To put it another way, if the decision in the case of the appellant is that he did not participate in the labour dispute, that decision applied to the others means that none of them participated. In my respectful view, this is sufficient to satisfy the requirements of s. 44(2)(b). The effect of the decision of the Board of Referees and of the Umpire once applied to all the others is that none of the members of the Union participated in the labour dispute and that disposes of the s. 44(2)(b) issue.
55. I would allow the appeal, reverse the judgment of the Court of Appeal, dismiss the s. 28 application and restore the decision of the Umpire confirming the decision of the Board of Referees, with costs in this Court and in the Federal Court of Appeal.
Appeal allowed with costs.
Solicitors for the appellant: Koskie & Minsky, Toronto.
Solicitor for the respondent: Frank Iacobucci, Ottawa.