Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Rules of evidence

• 12.12 (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.

• Marginal note:Intervenors

  (2) An interested party may, with leave of the judge, intervene in an inquiry on the terms and conditions that the judge considers appropriate.

Marginal note:Right to be heard

12.13 The member who is the subject of the inquiry must be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and must be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Marginal note:Report to Minister

• 12.14 (1) After an inquiry has been completed, the judge shall submit a report containing the judge’s findings and recommendations, if any, to the Minister.

• Marginal note:Recommendations

  (2) The judge may, in the report, recommend that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken if, in the opinion of the judge, the member

  • (a) has become incapacitated from the proper execution of that office by reason of infirmity;

  • (b) has been guilty of misconduct;

  • (c) has failed in the proper execution of that office; or

  • (d) has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of that office.

Marginal note:Transmission of report to Governor in Council

12.15 Where the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council, who may, where the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Marginal note:Head office

13 The head office of the Board must be in the National Capital Region as described in the schedule to the National Capital Act.

13.1 [Repealed, 2014, c. 20, s. 417]

Marginal note:Panels

• 14 (1) Subject to subsections (3) and (3.1), a panel of not fewer than three members, at least one of whom is the Chairperson or a Vice-Chairperson, may determine any matter that comes before the Board under this Act.

• Marginal note:Equal representation

  (2) Where a panel formed under subsection (1) is composed of one or more members representing employees, an equal number of members representing employers must also form part of the panel and vice versa.

• Marginal note:Exception — single member

  (3) The Chairperson or a Vice-Chairperson may alone determine a matter that comes before the Board under this Part with respect to

  • (a) an uncontested application or question;

  • (b) a question referred to in paragraph 16(p);

  • (c) a complaint made under subsection 97(1) in respect of an alleged contravention of section 37 or 69 or any of paragraphs 95(f) to (i);

  • (d) a request for an extension of time for instituting a proceeding;

  • (e) a preliminary proceeding; or

  • (f) any other matter, if the Chairperson determines that it is appropriate because of the possibility of prejudice to a party, such as undue delay, or if the parties consent to a determination by the Chairperson or a Vice-Chairperson.

• Marginal note:Single person — Parts II, III and IV

  (3.1) The Chairperson, a Vice-Chairperson or a member appointed under paragraph 9(2)(e) may alone determine a matter that comes before the Board under Part II, III or IV.

• Marginal note:Deemed panel

  (4) The Chairperson, a Vice-Chairperson or another member who determines a matter under subsection (3) or (3.1) is deemed to be a panel.

• Marginal note:Powers, duties and functions

  (5) A panel has all the powers, duties and functions that are conferred on the Board by this Act with respect to any matter assigned to the panel.

• Marginal note:Chairperson of the panel

  (6) The Chairperson is the chairperson of any panel formed under subsection (1) or, where the Chairperson is not a member of the panel, he or she designates a Vice-Chairperson to be the chairperson of the panel.

Marginal note:Continuation of proceeding

14.1 In the event of the death or incapacity of a member of a panel formed under subsection 14(1) who represents either employees or employers, the chairperson of the panel may determine any matter that was before the panel and the chairperson’s decision is deemed to be the decision of the panel.

Marginal note:Decision of panel

• 14.2 (1) A decision made by a majority of the members of a panel or, where there is no majority, by the chairperson of the panel is a decision of the Board.

• Marginal note:Time limit

  (2) If a decision is to be made under this Part, the panel shall make it and give notice of it to the parties no later than 90 days after the day on which the panel reserved the decision or within any further period that may be determined by the Chairperson.

Powers and Duties

Marginal note:Regulations

15 The Board may make regulations of general application respecting

• (a) the establishment of rules of procedure for its pre-hearing proceedings and hearings;

• (a.1) the use of means of telecommunication that permit the parties and the Board or its members to communicate simultaneously for pre-hearing conferences, hearings and Board meetings;

• (b) the determination of units appropriate for collective bargaining;

• (c) the certification of trade unions as bargaining agents for bargaining units;

• (d) the conduct of representation votes;

• (e) the specification of the period of time after which the Board may receive an application from a trade union for certification as the bargaining agent for a unit where the Board has refused an application from the trade union for certification in respect of the same or substantially the same unit;

• (f) the specification of the period of time after which the Board may receive an application from an employee for revocation of a trade union’s certification as the bargaining agent for a unit where the Board has refused an application for revocation in respect of the same unit;

• (g) the hearing or determination of any application, complaint, question, dispute, difference or appeal that may be made or referred to the Board;

• (g.1) an expeditious procedure and matters that may be determined under that procedure;

• (h) the forms to be used in respect of any proceeding that may come before the Board;

• (i) the time within which and the circumstances under which the Board may exercise its powers under section 18;

• (j) any inquiry that the Board may make under subsection 34(2);

• (k) the form in which and the period during which evidence and information may be presented to the Board in connection with any proceeding that may come before it;

• (l) the specification of the time within which and the parties or persons to whom notices and other documents shall be sent and the circumstances in which such notices or other documents shall be deemed to have been given or received by the Board or any party or person;

• (m) the determination of the form in which and the period during which evidence as to

  • (i) the membership of any employees in a trade union,

  • (ii) any objection by employees to the certification of a trade union, or

  • (iii) any signification by employees that they no longer wish to be represented by a trade union

  shall be presented to the Board on an application made to it pursuant to this Part;

• (n) the criteria for determining whether an employee is a member of a trade union;

• (o) the circumstances in which evidence referred to in paragraph (m) may be received by the Board as evidence that any employees wish or do not wish to have a particular trade union represent them as their bargaining agent, including the circumstances in which the evidence so received by the Board may not be made public by the Board;

• (o.1) the conditions for valid strike or lockout votes;

• (p) the authority of any person to act on behalf of the Board and the matters and things to be done and the action to be taken by that person, including the authority of an employee of the Administrative Tribunals Support Service of Canada to make decisions on uncontested applications or questions;

• (p.1) the manner and criteria for selecting external adjudicators; and

• (q) any other matters and things that may be incidental or conducive to the proper performance of the duties of the Board under this Act.

Marginal note:General power to assist parties

• 15.1 (1) The Board, any member of the Board or any external adjudicator — or an employee of the Administrative Tribunals Support Service of Canada who is authorized by the Board — may, if the parties agree, assist the parties in resolving any issues in dispute at any stage of a proceeding and by any means that the Board considers appropriate, without prejudice to the Board’s power to determine issues that have not been settled.

• Marginal note:Declaratory opinions

  (2) The Board, on application by an employer or a trade union, may give declaratory opinions.

Marginal note:Powers of Board

16 The Board has, in relation to any proceeding before it, power

• (a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;

• (a.1) to order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the times, dates and places of the hearings for those procedures;

• (a.2) to order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the Board to communicate with each other simultaneously;

• (b) to administer oaths and solemn affirmations;

• (c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;

• (d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;

• (e) to examine documents forming or relating to the constitution or articles of association of

  • (i) a trade union or council of trade unions that is seeking certification, or

  • (ii) any trade union forming part of a council of trade unions that is seeking certification;

• (f) to make such examination of records and such inquiries as it deems necessary;

• (f.1) to compel, at any stage of a proceeding, any person to provide information or produce the documents and things that may be relevant to a matter before it, after providing the parties the opportunity to make representations;

• (g) to require an employer to post and keep posted in appropriate places, or to transmit by any electronic means that the Board deems appropriate, any notice that it considers necessary to bring to the attention of any employees any matter relating to the proceeding;

• (h) subject to such limitations as the Governor in Council may, in the interests of defence or security, prescribe by regulation, to enter any premises of an employer where work is being or has been done by employees and to inspect and view any work, material, machinery, appliances or articles therein and interrogate any person respecting any matter that is before the Board in the proceeding;

• (i) to order, at any time before the proceeding has been finally disposed of by the Board, that

  • (i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and

  • (ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;

• (j) to enter on the premises of an employer for the purpose of conducting representation votes during working hours;

• (k) to authorize any person to do anything that the Board may do under paragraphs (a) to (h), (j), or (m) and to report to the Board thereon;

• (l) to adjourn or postpone the proceeding from time to time;

• (l.1) to defer deciding any matter, where the Board considers that the matter could be resolved by arbitration or an alternate method of resolution;

• (m) to abridge or extend the time for doing any act, filing any document or presenting any evidence in connection with a proceeding;

• (m.1) to extend the time limits set out in this Act for instituting a proceeding;

• (n) to amend or permit the amendment of any document filed in connection with the proceeding;

• (o) to add a party to the proceeding at any stage of the proceeding;

• (o.1) to summarily refuse to hear, or dismiss, a matter for want of jurisdiction or lack of evidence;

• (p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

  • (i) a person is an employer or an employee,

  • (ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

  • (iii) a person is a member of a trade union,

  • (iv) an organization or association is an employers’ organization, a trade union or a council of trade unions,

  • (v) a group of employees is a unit appropriate for collective bargaining,

  • (vi) a collective agreement has been entered into,

  • (vii) any person or organization is a party to or bound by a collective agreement, and

  • (viii) a collective agreement is in operation; and

• (q) to decide any question that may arise in a proceeding under Part II, III or IV.