McGILL LAW JO.URNAL
[Vol. 3
JOHN MURDOCK LIMITEE v. LA COMMISSION DE RELA-
TIONS OUVRIERES DE LA PROVINCE DE QUEBEC et Autres
et LA FRATERNITE UNIE DES CHARPENTIERS MENUI-
SIERS D’AMERIQUE, Mise en cause.’
QUEBEC LABOUR RELATIONS ACT –
RACIAL DISCRIMINATION
The social or humanistic reasons for the appearance in any society of dis-
crimination between people who have different coloured skins or who live
in different ways are no doubt involved and difficult to determine. But when
racial discrimination steps within the boundaries of the law it reduces itself
to manageable proportions.
The notion of the second class person is surely the fundamental and com-
mon element in all developed examples of discrimination between races.
It is to be observed at a nascent stage in the circumstances dealt with by
this decision.
In a spirited judgment Mr. Justice ‘Oscar L. Boulanger of the Superior
Court at Quebec City has dealt firmly with the idea that Indians are in any
way lesser people than white Canadians. ,The decision also deals with the
question of privative clauses in provincial labour legislation, although this is of
secondary interest.
The labour union which appeared. in this case as mise en cause had suc-
ceeded.in getting the Quebec Labour Relations Commission to say that
Indian lumberjacks were not the same as white ones and did not have to be
accorded the same rights. The dispute arose when the Commission, against the
objections of the company, certified the union as legal bargaining agent for
the company’s employees. The judgment unfortunately tells us nothing of the
motives of the various litigants.
In the Murdock company’s woods operations there was employed a total
of two hundred and ninety lumberjacks. ‘Ninety-two of them were Indians.
A group of the men, presumably white, were members of the local of the
United Brotherhood of Carpenters and Joiners of America. This group
addressed itself to the Quebec Labour Relations Commission with a request
that it be certified as bargaining agent for all the Murdock company em-
ployees. Although the judgment is silent on this point, the union men evident-
ly were not purporting to speak for the Indian lumberjacks when they ap-
proached the Commission.
The request for certification was refused. The Commission gave as its
reason the statement that the union men did not represent the majority of
the employees of the company. The union made a second request. This time,
1[1956] S.C. 30.
No. 2]
CASE AND COMMBNT
although nothing appears to have changed, the union’s request was granted
and it was certified.
Both the company’s protest against this decision and its request that the
Commission reconsider it were refused. A writ of prohibition was accordingly
obtained by John Murdock Limitie against the Quebec Labour Relations
Commission ordering it to do nothing to implement the decision.
The issue in court was over the status of the Indian workers. The union
argued that the Indians were inferior to the white lumberjacks and the com-
pany argued that, as far as their employment was concerned, all its workers
were the same. In granting certification to the union on its second address,
the Commission had reversed its previous stand and had acted on the union’s
argument. For it was the union’s contention that when the Labour Relation
Commission went to determine whether or not those seeking certification as
bargaining agents constitued the majority of the workers they sought to
bargain for, it should exclude Indians from its calculations.
The union gave reasons in support of this argument. It said first tlat the
Indian workers lived on the fringe of Canadian nationality and that con-
sequently the province’s labour laws were not applicable to them. The union’s
second reason was that they did not live in the same way as the white lumber-
jacks, but in their own communities of tents, apart from the lumber camps.
The company’s reply to this argument was simply that the Indians were
workers like anyone else. They did the same work as the whites and under the
same conditions. They received the same pay.
The spectacle of a labour union saying that because Indian workers be-
longed to an aboriginal race and did not sleep in the common bunkhouses
they should not come within the pale of the Quebec Labour Relations Act
is not a cheering one. ‘Nor does it fit in very well with what one would have
supposed to be the purpose of the Act in question; namely to improve labour
relations.
The picture is even more disquieting when it is remembered that the
Quebec Labour Relations Commission accepted this line of reasoning. The
activities of this body are, moreover, apparently immune from outside in-
vestigation. At the time this case was decided s. 41a of the Act (1941 R.S.Q.
Ch. 162A) read as follows:
“Aucun bref de quo tvarranto, de inandamus, de certiorari, de prohibition ou d’injonc-
tion ne peut 6tre 6mis contre la commission, ni contre aucun de ses membres, en
raison d’une dfcision, d’une procedure ou d’un acte quelconque relevant de
‘exercice
de leurs fonctions.
L’art. 50 du Code de procddure civile ne s’applique pas i la commission.”
Mr. Justice Boulanger had first to find out if s. 41a was in fact “une fin de
non recevoir absolue et une entrave compl~te au recours de la compagnie.”
His approach is one which may be observed in other decisions dealing with
the scope of similar privative clauses. !He adopts the common starting pre-
miss that acts by the Commission which do not relate to its functions cannot
McGILL LAWY JOURNAL
[Vol. 3
be witheld from impugnment. S. 41a will not be able to deny recourse against
them.
The learned judge then examines the Labour Relations Act to find out what
the functions of the Commission are. He concludes that the functions of the
Commission consist in the recognition and certification of groups of workers
as bargaining agents. This much is to be expected. Far more important is
his finding that there is in the Act no reference whatever to the racial origin
of workers, nor to their colour, beliefs, way of life or conduct outside working
hours. The union’s argument, then, that the Commission should not count
Indians as workers when it considers certifying some of the Indians’ fellow-
workers, does not stand on any text of law. Yet this was the argument which
the Commission adopted and acted upon when it certified the white union
membes as bargaining agents for all the employees of the Murdock company,
despite the fact that more than one third of those employees were Indians.
The learned judge’s comment is to the point:
“Comme tout autre organisme judiciaire, la commission doit prendre la loi comme
elle ne peut distinguer 1i oii ]a loi ne distingue pas; elle ne peut faire
rile est …
d’exception U oi ]a loi n’en fait pas.” 2
What the Quebec Labour Relations Commission did here was to deny to
the Indian employees of the company the benefit of the laws of the province.
The Commission does not exercise its functions when it does something which
the law does not authorize. In such cases it is not protected by s. 41a of the
Act.
“Cette tentative de sigr~gation raciale ne peut Etre appuy~e sur aucun texte de loi.
C’est une atteinte a la libert6 de travail et au droit qu’a tout salariE de faire partie
ou non d’une association et de b6ficier de ]a l6gislation ouvri6re.”3
The learned judge lays great stress on what this sort of conduct by a
public body can lead to. He says firmly that the Quebec Labour Relations
Commission cannot expand its powers under the pretext that it is dealing with
a special kind of people.
Attempts to do so are possibly the most obvious way there is of abusing
statutory powers. A statute is passed creating a body for the purpose of doing
a special job, and giving it the powers to do that job. In this case the body
could not even be brought into court. This state of affairs is abused when
the body itself starts interpreting its own enabling statute. To do so will
manifestly not be one of its powers.
The Quebec Labour Relations Commission was saying, in effect, that in
order to do something which it was empowered to do, it was free to do some-
to do, of
thing for which it had no authority. What it was empowered
course, was to certify groups of workers as bargaining agents for their fellow
workers, and what it had not authority to do was to say that an Indian –
be-
cause he was an Indian –
could not be a fellow worker.
2[1956] S.C. 30, at page 35.
[11956l S.C. 30, at page 36.
No. 2]
CASE AND COMMENT
219
At page 35 Mr. Justice Boulanger says of the Commission, bluntly and
graphically,
” . . . qu’elle n’aurait le droit d’exclure certains salariis, sous pritexte qu’ils sont
protestants, chauves ou tch&oslovaques, qu’ils comprennent la th~orie du credit
social, qu’ils se couchent en chien de fusil ou qu’ils bfichent avec Ia vieille hache et
I’ancienne sciotte, au lieu de se servir d’une scie micanique.”
Judgment was accordingly rendered upholding the company’s writ of pro-
hibition, ordering the Commission not to implement its decisions and re-
voking the certification which it had granted to the mise en cause.
*Third year Law student.
JAMES BRIERLEY*
