The Attorney General of Alberta v. Raymond Berry, Colleen Duttenhoffer,, 2010 ABQB 777

Court of Queen ’ s Bench of Alberta Citation: Alberta (Attorney General) v.

United Food and Commercial Workers Union, Local No. 401, 2010 ABQB 777 Date: 20101208 Docket: 0903 19396 Registry: Edmonton Between: The Attorney General of Alberta and Raymond Berry, Colleen Duttenhoffer, Donna Seamans, Aruna Sen, Jos é San Juan, Maria Gonzalez, Blair Francis, Ky Tran, Maria Messier, Kuluir Sahota, Blanca Mansilla, Eddy Kwan, Anh Nguyen, Kevin Larson, Trang Hoang, Paramjit Bhinsa, Robert Simmonds, Jasmine Dhaliwal, Nguyen Bang, Larry Manser, Scott Estabrooks, Ian Gregory, Georges Matta, Carlos Gonzalez, Rebeca Gamdarillas, Trevor Elms, Gerardo Siguera, Rasinder Khra and Les Csyz Applicants - and - United Food and Commercial Workers Union, Local 401, Old Dutch Foods Ltd. and the Alberta Labour Relations Board Respondents Corrected judgment: A corrigendum was issued on March 3, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________

Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Nature of the Application [ 1 ] This is a somewhat unusual application. The parties do not disagree on the relief sought, although certain parties are not prepared to consent to an order granting that relief. [ 2 ] The Attorney General of Alberta (“AG”), an intervenor with a statutory right of appeal, has brought a judicial review application in relation to a decision that the Alberta Labour Relations Board (the “ALRB”) rendered on November 9, 2009.

The ALRB’s decision appears at [2009] A.L.R.B. No. 56, 188 L.A.C. (4 th ) 289 (the “November Decision”). [ 3 ] The AG’s application before this Court is for judgment pursuant to rule 162 of the Alberta Rules of Court , AR 390/68 (“ Old Rules ”), and an order setting aside a declaration of invalidity that the ALRB made as part of the November Decision.

The AG argues that an inferior tribunal does not have the jurisdiction to make such a declaration. [ 4 ] By an order dated July 7, 2010, Lee J. added the 29 named individuals (the “Employees”), all employees of the Respondent Old Dutch Foods Ltd. (the “Employer”), as parties to the judicial review proceeding. The Employees agree with the relief the AG seeks. The United Food and Commercial Workers Union, Local 401 (the “Union”) does not oppose the present application, given the narrow remedy that the AG requests.

The Employer did not participate in these proceedings, as the issue before this Court is no longer of immediate concern to it. II. Background [ 5 ] On April 9, 2009, the Union filed a complaint with the ALRB, alleging that the Employer had failed to bargain in good faith and to make every reasonable effort to conclude a collective agreement by bargaining a union security clause to impasse. The union security clause, on which the negotiating parties reached an impasse, is commonly known as a “Rand formula.” In A.U.P.E. v. Provincial Health Authorities of Alberta , 2004 ABQB 591 at para. 109 , 19 Admin.

L.R. (4th) 242, Macklin J. explained a Rand formula as follows: This provision in the collective agreement between A.U.P.E. and the Employers is a Canadian compromise arrived at by Rand J. in [ Ford Motor Co. of Canada Ltd. v. U.A.W.-I.C.O . (1946), reprinted in vol. 1 C.L.L.R., looseleaf (Toronto: CCH Canadian, 2006) at ¶1250].

Rand J. attempted to balance the interest of individuals not to be forced to join an organization against their will, with the interests of the majority in being represented by a union without permitting the minority to benefit from the fruits of collective bargaining without paying for it. Under the Rand formula, members of the bargaining unit are required to pay union dues, but are not required to be members of the union. Labour relations legislation in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and Newfoundland, as well as federal labour

relations legislation, all contain a form of statutory Rand formula. [ 6 ] The Union went further. It argued that the omission from the Labour Relations Code , R.S.A. 2000, c. L-1 (“ Code ”) of a minimum union security provision akin to a Rand formula was a violation of s. 2(

d) of the Charter of Rights and Freedoms (“ Charter ”),

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Constitution Act, 1982 ”). The Union gave the AG notice that it intended to raise this constitutional issue. As a result, the AG intervened in the proceeding as of right.

The Employer took the position that it had not failed to bargain in good faith, as previous decisions of the ALRB held that union security can be the subject of collective bargaining in Alberta. [ 7 ] The ALRB declared in its November Decision at para. 58: Given that the freedom of association now extends to protecting the process of collective bargaining and accepting that payment of dues to a trade union falls within the scope of this freedom, it would seem to follow that a Rand formula type of union security is included within the protection that s. 2(

d) provides to the members of the Union to engage in the process of collective bargaining with the Employer. [ 8 ] As the ALRB noted, however, the Union was seeking more than a declaration regarding the rights enjoyed by it and those of its members working for the Employer. It sought a declaration that the Code is in conflict with Charter s. 2(

d) because of its failure to provide for a statutory minimum Rand formula. As well, the Union argued that Charter s. 2(

d) requires the Alberta government to include within the Code an obligation on an employer to provide, at a minimum, a Rand formula. [ 9 ] The ALRB further declared in the November Decision at para. 67 that, “[t]he continued absence from the Code of a statutory Rand formula is a violation of s. 2(

d) that can only be remedied by government action.” It noted (at para. 48) that the AG had not presented arguments in satisfaction of the onus to establish that Charter s. 1 would justify the continued absence from the Code of such a formula. The ALRB (at para. 69) went on to suspend the para. 67 declaration for a period of 12 months “... [to] allow the government to address the repercussions of this decision.” [ 10 ] The ALRB also concluded that the Employer’s refusal during bargaining to agree to a Rand formula amounted to a failure on the Employer’s part to bargain in good faith.

As a remedy for that breach, the ALRB required that the existing lockout/strike be suspended and the parties’ negotiating committees resume collective bargaining on the basis that the Rand formula was an agreed term of the collective agreement.

The ALRB further indicated that, if the parties’ negotiating committees had not reached a collective agreement to be ratified by their principals within 30 days of the resumption of collective bargaining, the suspension of the lockout/strike would be lifted. [ 11 ] The Employer entered into a collective agreement with the Union, which included a Rand formula-type union security provision. [ 12 ] The AG applied for judicial review of the November Decision, seeking to quash the ALRB’s declaration that the absence of a Rand formula in the Code breaches Charter s. 2(d).

The AG does not seek judicial review of the remainder of the November Decision. The grounds for the application before this Court are that: 1. as a matter of jurisdiction, an inferior tribunal cannot determine the constitutional validity of a law for any purpose beyond the particular case and parties before it (the “Jurisdictional Issue”); and 2. the ALRB erred in concluding that Charter s. 2(

d) requires that the Code impose a Rand formula-type union security provision as a mandatory minimum in every collective agreement (the “Constitutional Issue”). [ 13 ] The Employees are not members of the Union. They object to paying union dues under the newly-bargained collective agreement between the Employer and the Union.

[ 14 ] The Alberta Federation of Labour (“AFL”) and Merit Contractors Association of Canada (“MCA”) brought applications for intervenor status. These applications were to be heard on June 3, 2010. According to the AG, the day before the hearing, the Union agreed that the judicial review could be resolved based solely through resolution of the Jurisdictional Issue, without consideration of the Constitutional Issue, and proposed an order reflecting this (the “Proposed Order”). The ALRB did not oppose this disposition of the AG’s application. [ 15 ] The AFL and MCA adjourned their intervenor applications.

The Employees, on the return of their motion on June 3, 2010, asked that Lee J. decide whether to add them as parties or intervenors before dealing with the Proposed Order. The Proposed Order provided: 1. The Declaration, made by the Alberta Labour Relations Board at paragraph 58 of its decision dated November 9, 2009, and referred to by the Board at paragraph 69 of that decision, is quashed. 2. In particular the words “We so declare” appearing in paragraph 58 of the decision, and paragraph 69 of the decision, are set aside.

The Employees indicated that they objected to this manner of disposing of the judicial review application, as they wanted the Court to decide the Constitutional Issue. [ 16 ] Following the hearing, but before Lee J. rendered his decision, the Supreme Court of Canada released R. v. Conway , 2010 SCC 22 , [2010] 1 S.C.R. 765. Lee J. asked the parties for submissions on whether Conway had any impact on this case.

The Employees argued that Conway “... raises a serious question about the legal foundation of the [Proposed] Order.” The AG and the Union took the position that the Supreme Court of Canada in Conway did not recognize that administrative tribunals have jurisdiction to make declarations of invalidity as a Charter remedy. [ 17 ] In a decision dated July 7, 2010 ( 2010 ABQB 455 ), Lee J. added the Employees as co-applicants on the judicial review proceeding.

He declined to sign the Proposed Order, stating at paras. 109 and 110 that: ... the reasoning in Conway does not readily admit of this constraint on the intended scope of the decision.

Rather the judgment seems to endorse an expansive view of the remedial authority of tribunals otherwise empowered to interpret and apply the Charter in the course of their decision-making, which at least arguably, might allow a tribunal to go on to remedy a violation of the Charter in any manner available to a “court of competent jurisdiction,” including making a declaration of invalidity pursuant to a s. 52(1) of the Constitution Act in addition to, or instead of, remedies under s. 24 of the Charter .

While Conway does not undermine the legal basis for the Order sought by the Attorney General in this proceeding, this recent jurisprudential development at least raises a serious question about the legal foundation for the Order. Prudence alone dictates that the Court at least evaluate other available grounds for the relief being sought in a full hearing of the motion. [ 18 ] The Union has appealed Lee J.’s order adding the Employees as parties. That appeal has not yet been heard.

The Employees have filed a notice of motion in the judicial review proceeding seeking to quash and set aside the entirety of the November Decision. The Union has filed a notice of motion for an order striking the Employees’ notice of motion or adjourning their application until the Union’s appeal is heard. The parties have adjourned these motions sine die . [ 19 ] On July 26, 2010, the AG filed an application seeking judgment on a question of law as to whether the ALRB had the jurisdiction to make the formal declaration of constitutional invalidity contained in the November Decision.

The AG asks this Court to set aside that declaration. The Union does not oppose the application, given the narrow remedy that the AG seeks. At the hearing before this Court, the Union’s counsel clarified that the Union is not taking a stand on the issue, as it is the beneficiary of the ALRB’s decision. The Employees agree that the ALRB’s declaration should be vacated on the basis of the jurisdictional challenge advanced by the AG and on the basis that the ALRB erred in its constitutional analysis, which the Employees intend to argue at a later date.

[ 20 ] The ALRB’s suspension of its declaration of invalidity ended on November 8, 2010. At the end of the hearing of this matter, this Court granted a 90-day stay of the ALRB’s declaration of invalidity to allow this Court to render its decision on this application, Old Rules r. 753.15(1)). III. Issue [ 21 ] The issue that this Court must decide on this application is whether the ALRB had the jurisdiction to make a declaration applying to persons beyond the parties and issues before it. IV. Analysis A. Old Rules r. 162 [ 22 ] Old Rules r. 162 provided: 162.

At any stage of the proceedings the court may, upon application, give any judgment or order to which the applicant may be entitled when: (

a) admissions of fact are made on the pleadings or otherwise, or (

b) the only evidence consists of documents and such affidavits as are sufficient to prove their execution or identity. [ 23 ] Also, Old Rules r. 221 allowed the Court to order a question or issue of law arising in a proceeding to be tried before trial. [ 24 ] Rule 7.2 of the new Alberta Rules of Court , A.R. 124/2010 (“ New Rules ”) provides that: 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. [ 25 ] Also, New Rules r. 7.1(1) allows the court, on application, to hear a question or issue before trial for the purpose of disposing of all or part of a claim. [ 26 ] This matter was heard before New Rules rr. 7.1 and 7.2 came into force on November 1, 2010. [ 27 ] New Rules r. 15.2(1) provides that: “[e]xcept as otherwise provided in an enactment, by this Part or by an order under rule 15.6..., these rules apply to every existing proceeding.” “Existing proceeding” is defined in New Rules r. 15.1(

a) as meaning “a court proceeding commenced but not concluded under the former rules.” New Rules r. 15.12 specifies that:

15.12 Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules.” [ 28 ] In this Court’s view, New Rules r. 7.2 does not impose any new test, criteria or ground. It essentially is the same as Old Rules r. 162. [ 29 ] The only issue before this Court is the Jurisdictional Issue, which can be decided as a preliminary question of law. The Constitutional Issue is not before this Court. B.

Standard of Review [ 30 ] The AG brings its application as a judicial review. As the issue that this Court must determine is one of true jurisdiction, the standard of review is correctness ( Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 50 , [2008] 1 S.C.R. 190). C. Case Law Relating to Declarations of Invalidity [ 31 ] Appellate jurisprudence before Conway repeatedly held that inferior tribunals do not have the jurisdiction to grant general declarations of invalidity. In Shewchuk v.

Ricard , 1986 CanLII 174 (BC CA) , [1986] 4 W.W.R. 289 at 298, 28 D.L.R. (4th) 429 (B.C.C.A.), Macfarlane J.A. stated: It is clear that the power to make general declarations that enactments of Parliament or of the Legislature are invalid is a high constitutional power which flows from the inherent jurisdiction of the superior courts .

But it is equally clear that if a person is before a court upon a charge, complaint or other proceeding properly within the jurisdiction of that court, then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect, by reason of the provisions of the Canadian Charter of Rights and Freedoms , and to dismiss the charge, complaint or proceeding. The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court.

It does not trench upon the exclusive right of the superior courts to grant prerogative relief, including general declarations . [Emphasis added.] [ 32 ] This position was affirmed by LaForest J. for the majority in Douglas/Kwantlen Faculty Assn. v. Douglas College , 1990 CanLII 63 (SCC) , [1990] 3 S.C.R. 570 at para. 50 : Tribunals, and in particular labour relations boards, have for some time now been held to be competent to consider constitutional questions ... These cases, as Finlayson J.A. noted in Cuddy Chicks Ltd. v.

Ontario (Labour Relations Board) , supra , at p. 142, were confined to determining the jurisdiction of the tribunals. As regards other questions, as Desjardins J. observed in Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission) , supra , at p. 278, the parties would rely on prerogative writs or other similar remedies.

But if these tribunals may determine these issues for purposes of jurisdiction, I fail to see why it would be offensive to the judicature provisions of the Constitution Act, 1867 , and in particular s. 96 , for a tribunal to consider other constitutional questions arising in the course of exercising its mandate. The issue before it in such a case is the relatively modest one assigned to it under its statutory mandate. As Desjardins J. noted in Tétreault-Gadoury v.

Canada (Canada Employment and Immigration Commission) , supra , at p. 279, it would be anomalous if tribunals responsible for interpreting the law on the issue were unable to deal with the issue in its entirety, subject to judicial review. I agree with the view taken in the cases previously cited that this is a totally different function from a formal declaration of invalidity, a matter falling solely within the jurisdiction of a federal court . [Emphasis added.] [ 33 ] The Supreme Court of Canada concurrently issued its reasons in Tétreault-Gadoury v.

Canada (Employment and Immigration Commission) , 1991 CanLII 12 (SCC) , [1991] 2 S.C.R. 22 and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) , 1991 CanLII 57 (SCC) , [1991] 2 S.C.R. 5. Tétreault-Gadoury concerned the constitutional validity of Unemployment Insurance Act,

1971 , S.C. 1970-71-72, c. 48, s. 31 in the light of Charter s. 15 . LaForest J. noted at para. 11 that the respondent had not sought a formal declaration of invalidity or any remedy that would require the invocation of Charter s. 24(1) . All the respondent had asked the Board of Referees to do was to apply Constitution Act, 1982 s. 52(1) and disregard Unemployment Insurance Act, 1971 s. 31 when calculating the benefits she otherwise would be due under the Unemployment Insurance Act, 1971 . [ 34 ] In Cuddy Chicks Ltd. , the United Food and Commercial Workers International Union, Local 175 gave notice that it would ask the Ontario Labour Relations Board (“OLRB”) to hold a

section of the Labour Relations Act , R.S.O. 1980, c. 228 invalid as being contrary to Charter ss. 2(

d) and 15 . A hearing was held to determine if the OLRB had jurisdiction to determine the Charter issues. The OLRB, Divisional Court and majority in the Ontario Court of Appeal held that the OLRB did have the jurisdiction so to do. Again, it was LaForest J. who wrote the majority decision in the Supreme Court of Canada. At para. 17, he commented: ... the jurisdiction of the ... [OLRB] 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 ... [OLRB].

Instead, the ... [OLRB] 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 ... [OLRB] on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises. [Emphasis added.] [ 35 ] In Bell v. Canada (Canadian Human Rights Commission); Cooper v.

Canada (Canadian Human Rights Commission) , 1996 CanLII 152 (SCC) , [1996] 3 S.C.R. 854, LaForest J. reiterated at para. 47 that it is a matter of discerning legislative intent in determining whether a tribunal has jurisdiction over the parties, the subject matter before it and the remedy sought by the parties.

He concluded in that case that the Canadian Human Rights Commission and a tribunal appointed at its request did not have jurisdiction to decide constitutional matters. [ 36 ] McLachlin J., on behalf of herself and L'Heureux-Dubé J., stated in dissent at para. 83 that: The second principle of general application to the question before us is this: a tribunal's ruling that a law is inconsistent with the Charter is nothing more, in the final analysis, than a case of applying the law of the land -- including the most fundamental law of the land, the Constitutio n.

It is common to speak of courts or tribunals "striking down" or invalidating laws, regulations and government actions, suggesting action that transcends mere application of the law and hence, must be reserved for the highest courts. This view of the Charter is, with respect, inaccurate. The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982 , however, provides that all laws are invalid to the extent that they are inconsistent with the Charter . Laws are struck down not by judicial fiat , but by operation of the Charter and s. 52 of the Constitution Act , 1982.

The task of the judge or decision-maker is to determine whether there is an inconsistency between the law that is challenged and the Charter and, if so, its extent . My point is not that this is not an important and powerful role, but rather that we fall into error if we think of the Charter as a document that empowers some decision-making bodies to decide Charter questions to the exclusion of others. The Constitution Act, 1982 does not speak in terms of bodies possessing power to invalidate laws. Rather, it pronounces the laws invalid, to the extent of their inconsistency with the Charter .

The only reference in the Charter to decision-making bodies deals not with the invalidity of the laws that conflict with the Charter , but with enforcement. Section 24(1) provides that a person whose rights are infringed or denied "may apply to a court of competent jurisdiction" for a remedy, and s. 24(2) permits a court to exclude evidence taken in violation of the Charter .

The fact that invalidation of laws under the Charter is linked to inconsistency rather than the action of a particular court, undercuts the suggestion that striking down laws under the Charter is the prerogative of a particular court. [Emphasis added.] [ 37 ] However, later in her reasons (at para. 99), she cited with approval Macfarlane J.A.’s statement from Re Shewchuk and Ricard , which is quoted above, recognizing the exclusive right of superior courts to grant prerogative relief such as general declarations of invalidity. [ 38 ] In Nova Scotia (Workers' Compensation Board) v.

Martin , 2003 SCC 54 , [2003] 2 S.C.R. 504, the Supreme Court of Canada considered the constitutional validity of certain provisions of the Nova Scotia Workers' Compensation Act , S.N.S. 1994-95, c. 10, which excluded chronic pain from the scope of the regular workers’ compensation scheme. Gonthier J., who wrote for a unanimous court, reviewed the policy reasons for allowing administrative tribunals to consider the constitutional validity of a provision of their enabling statute and to refuse to apply a challenged provision found to violate the Constitution Act, 1982 .

At para. 31 he remarked that: Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks , supra , at p. 17. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior

court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity . A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal's administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases.

Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada . [Emphasis added.] [ 39 ] This statement was reiterated by the Supreme Court of Canada in Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General) , 2005 SCC 16 at para. 44 , [2005] 1 S.C.R. 257. [ 40 ] Paul v. British Columbia (Forest Appeals Commission) , 2003 SCC 55 , [2003] 2 S.C.R. 585 was released at the same time as Martin . Bastarache J. delivered the judgment of the court in Paul .

In explaining why a determination by an administrative tribunal is very different from the extinguishment of a right and legislation in relation to Indians or aboriginal rights, he stated at para. 31 that: ... while both provincially constituted courts and provincially constituted tribunals may consider the Constitution and federal laws, there is nevertheless one important distinction between them that the respondent overlooked.

Unlike the judgments of a court, the Commission's decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law. They could not be declaratory of the validity of any law ...[Emphasis added.] [ 41 ] The Supreme Court of Canada decided Conway earlier this year. The appellant in that case alleged the mental health centre where he had been detained had breached his rights under the Charter . As a remedy under Charter s. 24(1) , he sought an absolute discharge.

The Ontario Review Board determined it had no jurisdiction to consider his Charter claims and, in any event, he was a threat to public safety and, therefore, not a suitable candidate for an absolute discharge under the Criminal Code of Canada . The Court of Appeal agreed that the Board was not a court of competent jurisdiction to grant an absolute discharge under Charter s. 24(1).

On appeal to the Supreme Court of Canada, Abella J., who delivered the judgment of that court, instructed (at para. 22) that the appropriate questions to be asked in determining the relationship between the Charter , remedial provisions and an administrative tribunal are: Does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law.

If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate ( Cuddy Chicks trilogy; Martin ). A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction. The tribunal must then decide, given this jurisdiction, whether it can grant the particular remedy sought based on its statutory mandate.

The answer to this question will depend on legislative intent, as discerned from the tribunal's statutory mandate (the Mills cases). Conway does not specifically overrule the “ Cuddy Chicks trilogy” or Martin . D. Jurisdiction of ALRB to Issue a Declaration of Invalidity [ 42 ] The parties before this Court do not dispute that the ALRB has the jurisdiction to decide questions of law. It is a court of competent jurisdiction in relation to the Charter and has the jurisdiction to deal with Charter issues that arise in matters before it. Indeed, the Designation of Constitutional Decision Makers Regulation , Alta.

Reg. 69/2006 under the Administrative Procedures and Jurisdiction Act , R.S.A. 2000, c. A-3 specifies that the ALRB has the jurisdiction to determine all questions of constitutional law. The parties agree that the ALRB can fashion appropriate Charter remedies affecting the parties before it. The dispute focuses on whether a declaration of invalidity is one of the remedies within its arsenal. [ 43 ] According to Conway at para. 82 : Answering this question is necessarily an exercise in discerning legislative intent.

On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function ...

[ 44 ] Code s. 12(2)(

f) provides that the Board may for the purposes of the Act “make or issue any orders, decisions, notices, directives, declarations or certificates it considers necessary.” According to Code s. 12(4), the ALRB has exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it, but the ALRB may reconsider any decision, order, directive, declaration or ruling made by it and vary, revoke or affirm the decision, order, directive, declaration or ruling. [ 45 ] The ALRB is empowered to decide the matters listed in Code s. 12(3), including such questions as whether a person is an employer or employee, an organization is an employers’ organization or a trade union, an employer has given an employers’ organization authority to bargain collectively on the employer’s behalf or has revoked that authority, and the like. [ 46 ] Code s. 16(8) states that: 16(8) Subject to section 17(2), when the Board makes a decision with respect to a complaint, reference or application, it may by order or directive give any remedy that is appropriate to the matter or necessary to ensure compliance with and enforcement of this Act. [ 47 ] Code s. 17(1) provides that when the ALRB is satisfied after an inquiry that an employer, employers’ organization, employee, trade union or other person has failed to comply with any provision of the Code specified in a complaint, the ALRB may issue a directive to rectify the act. [ 48 ] It is clear from the Code that the ALRB has the jurisdiction to rule on complaints, references and applications brought to it.

In doing so, it may consider the constitutionality of provisions of the Code . If the ALRB determines that a particular provision is in breach of the Charter , it must decide the matter before it on the basis that the provision in question has no force or effect. If the Code breaches the Charter because a particular provision is absent, the ALRB must decide the matter by reading that provision into the Code .

The ALRB may issue declarations and, in particular, may issue a declaration regarding the constitutionality of a particular provision. [ 49 ] However, in accordance with the jurisdictional limitation recognized in the “ Cuddy Chicks trilogy” and Martin , any such declaration can relate only to the complaint, reference or application directly before the ALRB.

As well, it binds the parties only for purposes of that matter and to the extent that such declaration is not varied or revoked by the ALRB and is not quashed or varied by the courts. [ 50 ] The ALRB did not have the jurisdiction to issue a general declaration of invalidity. To the extent that it purports to do so when paras. 67 and 69 of the November Decision are read together, that declaration is quashed.

To be clear, the parties have not asked this Court to rule on whether the ALRB erred at para. 58 of the November Decision in deciding the question of whether “a Rand formula type of union security is included within the protection that [ Charter ] s. 2(

d) provides to the members of... [this] Union to engage in the process of collective bargaining with... [this] Employer,” and this Court makes no comment in relation to the ALRB’s decision in that regard. [ 51 ] If the parties cannot agree on the costs of this matter within 30 days of the entry of this judgment, they are granted leave to appear before this Court to speak to the same. Heard on the 22 nd day of October, 2010. Dated at the City of Edmonton, Alberta this 6 th day of December, 2010.

K.D. Yamauchi J.C.Q.B.A. Appearances: Rod Wilshire Alberta Justice for the Applicant Craig W. Newman, Q.C. Neuman Thompson for the Applicant John R. Carpenter/Vanessa Cosco Chivers Carpenter for the Third Party Shawn McLeod Alberta Labour relations Board for the Fourth Party _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Paragraph [28] was changed to read the following:

[28] In this Court’s view, New Rules r. 7.2 does not impose any new test, criteria or ground. It essentially is the same as Old Rules r. 162.