The objective of the bargaining undertaken by an artists’ association subsequent to certi-fication is to put in place one or more scale agreements prescribing the minimum terms and conditions under which the artists covered by the agreement will provide their ser-vices to producers in the federal jurisdiction. The content of the scale agreement is a matter for negotiation between the certified artists’ association and the producers; the scale agreement could touch on matters of copyright but need not necessarily do so.

What is included in this right to bargain? Subsection 31(1) of the Act states that the purpose of bargaining is to enter into a scale agreement. A scale agreement is defined as “an agreement in writing between a producer and an artists’ association respecting minimum terms and conditions for the provision of artists’ services and other related matters”.

In these early stages of collective bargaining on behalf of artists who are independent contractors, the Tribunal is not inclined to begin defining or limiting the subjects that can be included in the category of “matters related to the provision or artists’ services”. In our view, it would be unacceptable to divide the provision of services from the use of the work. A producer who commissions a work must be able to use or disseminate the work for which he or she has paid.

(...) the Tribunal, and labour boards generally, cannot dictate the subjects the parties may bargain. The proposed amendment may enlarge the scope of CARFAC’s bargaining but would not result in the determination of what subject matters can or cannot be bargained. Parties would remain free to put forth any proposals they wish, and would be free to accept, reject or put forth counter proposals.

In the Tribunal’s view, because both the Recording Musicians Association - Toronto Chapter and the Guilde de musiciens are branch or local affiliates of the AFM, they qualify as artists’ associations within the meaning of the Act. Accordingly, the Tribunal finds that both organizations are entitled, as of right, to intervenor status with respect to the AFM’s application for certification by virtue of subsection 26(2) and 27(2) of the Act.

The DGC has also argued that assistant directors are artists pursuant to 6(2)(b)(iii) of the Act as they contribute to the creation of a film or television production and are involved in all professional categories mentioned in the Regulations such as lighting, the art department, camera and sound. Given that the Tribunal has determined that assistant directors carry out an activity referred to in 6(2)(b)(ii) of the Act, it is precluded from including them under the Regulations (see paragraph 2(2)(b) of the Regulations).

[...] none of the parties dispute that the Tribunal is mandated, through subparagraph 6(2)(b)(i) of the Act, to interpret the Copyright Act. In light of this, and as the original panel stated in paragraph 53 of Decision 033, we concur that established principles of copyright law must govern the present decision.

[...] the Tribunal finds that although an editor and an author work together on a common project, they do not collaborate on a pre-concerted joint design, as this term is understood under the Copyright Act.

[...] the evidence presented by the EAC and TWUC demonstrates that professional freelance editors who perform developmental and substantive editing on a work do not view themselves as joint authors. Accordingly, we can only conclude that editors who perform any kind of editing, from developmental and substantive editing to line and copy editing, do not intend to be joint authors. Given that the third criteria of the Neudorf test requires putative joint authors to intend to be joint authors with one another, had we adopted this test, our conclusion would have been the same: professional freelance editors would not be considered joint authors within the meaning of the Copyright Act.

A certification issued by the Tribunal to an artists’ association entitles that association to enter into negotiations with organizations who qualify as “producers” within the meaning of the Act. These producers are defined in clause 6(2)(a) of the Act:

6(2) This Part applies

1. to the following organizations that engage one or more artists to provide an artistic production namely,
   1. government institutions listed in Schedule I to the Access to Information Act or the schedule to the Privacy Act, or prescribed by regulation, and
   2. broadcasting undertakings, including a distribution or programming undertaking, under the jurisdiction of the Canadian Radio-television and Telecommunications Commission; ...

The Tribunal is of the opinion that the applicants’ proposed sector, insofar as it purports to apply to all publishers and electronic information-distributors who are Canadian entities or who have their principal place of business in Canada or who establish an office in Canada, exceeds the jurisdiction of the Tribunal and therefore cannot be approved. The sector definition has to be limited to producers within the jurisdiction of the Status of the Artist Act.

The legislation applies to “independent contractors determined to be professionals according to the criteria set out in paragraph 18(b) [...]” (Our emphasis). It is therefore unlikely that someone whose primary occupation, for example, is teaching or event organizing could be considered a “professional” under the legislation unless they meet one of the criteria set out in paragraph 18(b) [...]

Subclause 6(2)(a)(ii) makes it clear that the Tribunal’s jurisdiction mirrors only the broadcasting portion of the CRTC’s jurisdiction and does not include those aspects of the CRTC’s jurisdiction which flow from its responsibility for telecommunications. Accordingly, for a producer to come within the Tribunal’s jurisdiction, it must be either a government institution or a broadcasting undertaking.

To determine whether a producer is within the Tribunal’s jurisdiction over broadcasting undertakings, it is necessary to examine the CRTC’s jurisdiction over broadcasting. Since 1991, the Broadcasting Act has defined broadcasting as:

... any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place. [(ss.2(1)].

The key elements of this definition mean that, to be a broadcasting undertaking, the entity must transmit programs via radio waves or other means of telecommunication for receipt by the public by means of a broadcasting receiving apparatus.

The intent of the Act, in the Tribunal’s opinion, is to limit the Tribunal’s jurisdiction to broadcasting undertakings as they are defined by the CRTC. The Tribunal therefore finds that it does not have the jurisdiction to determine that a service constitutes broadcasting if the CRTC has not already made this determination.

The Tribunal’s jurisdiction would also extend to these writers [freelance periodical writers] when a government institution or a broadcasting undertaking distributes one of their works in another medium. This would include government institutions that put a freelancer’s article on the Internet as well as broadcasting undertakings who use the article in a broadcast, on their Internet site or in a commercial on-line database.

Since it is the intent and purpose of the Status of the Artist Act to offer the benefits of collective bargaining to artists working as independent contractors, the Tribunal is prepared to give a broad and inclusive reading to the term “multimedia”. The Tribunal therefore finds that it has jurisdiction to include multimedia productions undertaken by a producer who is otherwise subject to the Status of the Artist Act within the scope of the sector sought by the applicant, and that it is appropriate to do so.

The Tribunal accepts the applicant’s argument that the reference in the Act to broadcasting undertakings refers not to the activity but to the organization. The Tribunal understands the Act to mean that it applies to all artistic productions produced by one of the organizations referred to in clause 6(2)(a). One type or organization subject to the Act is any broadcasting undertaking under the jurisdiction of the CRTC. The Tribunal interprets this to mean that once an organization is brought within the ambit of the Act, any and all of its activities that involve artistic production are included, whether they are broadcast related or otherwise.

...The Tribunal is of the view that the finding in CLRB et al. v. Paul L’Anglais Inc. et al. must be confined to its own facts. In that case, the Supreme Court of Canada upheld a decision of the Quebec Court of Appeal [reported at 122 D.L.R. (3d) 583] which held that the activities of two subsidiaries of Télé-Métropole Inc. (a federally regulated television broadcasting business), one of which engaged in selling sponsored television air time and one that produced programs and commercial messages for a number of customers, were not an integral part of the broadcasting undertaking and therefore not within the competence of Parliament or, consequently, of the Canada Labour Relations Board. The Tribunal can envision circumstances in which productions undertaken by a third party under contract to a broadcasting undertaking could be vital, essential or integral to the broadcaster, and thus within the federal regulatory sphere.

The NFB argues that only artists recognized as such by their peers should be recognized as artists within the meaning of the Act. Although it is correct to say that, historically, some persons were recognized as artists by their peers or by third parties with whom they established a relationship, the Act does not make this distinction.

Choreographers and assistant choreographers are required by the terms of the Canadian Theatre Agreement to carry out a number of functions that relate to the creation of a production: they rehearse and direct all dance sequences. Whether this direction merely involves carrying out the artistic vision of a director or requires a degree of interpretation by the choreographer or assistant choreographer may vary from time to time. The Tribunal’s reading of the CTA [Canadian Theatre Agreement] left it with little doubt that the functions of these professionals include “directing...in any manner” a work contemplated by paragraph 6(2)(b)(ii). Accordingly, the Tribunal finds that it does have the jurisdiction to include the professions of choreographer and assistant choreographer, as described in the CTA, in a sector for bargaining.

Furthermore, the Tribunal is of the opinion that choreographers would also qualify for inclusion in a sector by virtue of paragraph 6(2)(b)(i) of the Act. This paragraph provides that Part II of the Status of the Artist Act applies to independent contractors who are authors of dramatic works within the meaning of the Copyright Act. The Copyright Act (R.S.C. 1985, c. C-42, as am.) defines a dramatic work as including choreographic work that is fixed in writing or otherwise.

In the Tribunal’s view, periodical writers are authors of literary works within the meaning of the Copyright Act, and the purchase of their works by a publisher or producer with the intent that it be disseminated to the public in some fashion is sufficient to bring the author within the scope of ss. 18(b) of the Act.

The Tribunal accepts that translation is a very specialized profession which requires a comprehensive understanding of a text in both the source language and the language into which it is to be translated, as well as familiarity with both cultures. To convey the meaning and style of the original work faithfully, a literary translator must have much of the same dramatic flair as the original creator. The Tribunal therefore finds that literary translators are artists within the meaning of paragraph 6(2)(b)(i) of the Status of the Artist Act and therefore that they are eligible for inclusion in the proposed sector.

Copyists are persons with musical training who copy out the instrumental parts of a score. The work of a copyist is neither a performance nor is it a function that is subject to copyright. The Tribunal is, at present, entitled to include in a sector only those artists defined by subclauses 6(2)(b)(i) and (ii) of the Status of the Artist Act, and the work of copyists does not fall within either of these categories. While these individuals clearly contribute to the creation of a production, as envisioned by subclause 6(2)(b)(iii) of the Act, regulations under that subclause have not yet been promulgated. Consequently, the Tribunal is unable to deal with this aspect of the application now.

The Tribunal is of the view that the functions of a music librarian are not covered by the provisions of subclauses 6(2)(b)(i) or (ii) of the Status of the Artist Act. Thus, unless regulations are promulgated under subclause 6(2)(b)(iii) to make it possible, the Tribunal does not have the authority to include music librarians in the sector, despite the fact that they clearly have a community of interest with musicians.

Are arrangers authors of musical works within the meaning of the Copyright Act (R.S.C. 1985, c. C-42), and therefore covered by subparagraph 6(2)(b)(i) of the Status of the Artist Act? The Copyright Act defines a musical work as “any work of music or musical composition, with or without words, and includes any compilation thereof.” The expression “compilation” includes “a work resulting from the selection or arrangement of ...musical... works or of parts thereof”. In the light of the foregoing, the Tribunal finds that arrangers are covered by subparagraph 6(2)(b)(i) of the Status of the Artist Act and that they can be included in the sector.

Copyists are musicians who transcribe individual scores from a master score. Because copyists do not create or arrange musical works, the Tribunal is of the opinion that copyists are not authors of musical work within the meaning of the Copyright Act. Similarly, copyists, functioning in this capacity, are not performers. The function of copyist is therefore not covered by the terms of subparagraph 6(2)(b)(i) or (ii) of the Status of the Artist Act.

With respect to the bargaining sectors it can certify, the Tribunal is, for the time being, limited to the categories of artists listed in subparagraphs 6(2)(b)(i) or (ii) of the Act and the function of copyist is not included in either of these categories. Although copyists clearly contribute to the creation and production of artistic works as contemplated by subparagraph 6(2)(b)(iii) of the Act, regulations prescribing the other categories of artists who may be covered by the Status of the Artist Act have not yet been adopted. The Tribunal therefore cannot, for the time being, include copyists in the sector proposed by the applicant.

Music librarians are musicians whose function is to manage musical scores. This function can be compared with that of the librarian who deals with books. As a rule, music librarians are instrumentalists who assume the additional task of music librarian, for which they receive extra pay in addition to their regular musician’s pay. In large orchestras, however, music librarians sometimes perform this function full time and do not play. Although music librarians are usually musicians, when they act in their capacity as music librarians they are neither performers nor authors of artistic or musical works. The Tribunal is of the view that it cannot include music librarians in the proposed sector for the same reasons given in the preceding paragraph with respect to the copyists.

The Tribunal is of the view that it can include in the sector proposed by the applicant artists whose form of expression is painting, sculpture, engraving, drawing, illustration, photography and textile art, because all these forms of expression are covered by section 2 of the Copyright Act and can be subject to copyright. For the reasons stated above, the Tribunal is of the view that the artists that practice these disciplines have common interests and constitute a sector that is suitable for bargaining.

As for the artists who practice installation, the Tribunal is of the view that although an installation is a work that is not necessarily permanent, it can be fixed and could therefore be subject to copyright. Video art is a work that can be permanent and can be fixed and thus subject to copyright. Consequently, the Tribunal is of the opinion that installation and video art are artistic works akin to those enumerated in section 2 of the Copyright Act and that it can include them in the proposed sector.

The Tribunal is of the opinion that an artist who practices performance art can be akin to a performer, a category of artists covered by subparagraph 6(2)(b)(ii) of the Act. An artist who practices performance art “performs” before a public.

The Tribunal finds that the conclusions of the Court in Boudreau v. Lin, supra, and the evidence indicate that an editor collaborates with an author only in the sense that he or she assists the author in perfecting a work […]

In light of the above, we find that the original panel erred when it certified a sector that included professional freelance editors whose contribution was in the nature of joint authorship, as these editors are not authors within the meaning of the Copyright Act, and therefore not artists within the meaning of the Act.

“Musical work” is defined under section 2 of the Copyright Act (R.S.C. 1985, c. C-42, as amended) as “... any work of music or musical composition, with or without words, and includes any compilation thereof.” On this basis, the Tribunal finds that authors, composers and author-composers are authors within the meaning of the Copyright Act and are therefore artists pursuant to subparagraph 6(2)(b)(i) of the Act.

[...] the Tribunal concludes that the functions of stage managers and assistant stage directors include “directing ... in any manner” a work. Accordingly, they are “artists” pursuant to subparagraph 6(2)(b)(ii) of the Act, even if this direction is carried out under the supervision of the stage director.

Even if part of the duties of the assistant director or first assistant director is administrative or involves coordinating, the Tribunal finds that it may include this profession under subparagraph 6(2)(b)(ii) of the Act because the evidence shows that these individuals are called upon to direct actors, if only in secondary roles or as background performers, and that they may be called upon to direct other aspects of the production.

While it cannot be said that Mr. Girard was portraying a character or that he helped to shape the production, he did, however, entertain the audience through his comic timing and improvisation, skills required of performers generally. This was not a private social event or a conference but an important entertainment venue where well-known performers were appearing. The NCC has stated that it did not engage Mr. Girard because of his acting skills but rather because of his genial nature and personality. We do agree that there is no requirement that a master of ceremonies be an actor or someone professionally trained, however we reject the notion that someone totally inexperienced could carry out the function in the context of this type of production. In our view, Mr. Girard was required to “perform” as that term is envisaged in sub-paragraph 6(2)(b)(ii) of the Act.

Paragraphs (a) to (e) of section 2 of the Regulations provide for certain professional categories comprising professions in which the practitioner contributes directly to the creative aspects of the production by carrying out one or more of the activities set out in that section. Inter alia, paragraph 2(1)(a) of the Regulations refers to sound and lighting design; paragraph 2(1)(b) refers to costume design; and paragraph 2(1)(c) refers to set design (“scénographie”). The parties do not dispute that scénographie includes set design (“conception de décors”). The Tribunal finds that set, costume, lighting and sound designers contribute directly to the creative aspects of the production, and consequently persons who are engaged in those professions are artists under subparagraph 6(2)(b)(iii) of the Act.

The Tribunal also understands that in some productions, the set designer may be responsible for props design, and delegate to someone else the job of assembling or selecting props. It is clear that, in that case, the contribution of the propsman does not “contribute directly to the creative aspects of the production”, since the artistic choices will have been made by the set designer.

[...]

In the Tribunal’s view, the fact that no awards are presented is not conclusive evidence that the position does not exist. ADC itself explained that the position of sound designer has only recently been recognized, illustrating that functions evolve. The fact that one person may agree to carry out both positions does not mean that in another situation these functions might not be assigned to two people. The Tribunal is of the opinion that there is in fact a separate activity that may be called props design. However, it must be understood that the person who performs this function must report to the stage director, just like other designers in a production, and his or her work must include the creation or transformation of objects as well as research in order to develop a whole concept that expresses the vision of the stage director.

[...]

The Tribunal finds that props design is an activity that is akin to set design. Therefore, this position is covered by paragraph 2(1)(c) of the Regulations and the props designer is an artist under subparagraph 6(2)(b)(iii) of the Act.

First, designing the puppet-theatre is similar to theatrical set design. On the other hand, as Mr. Lacroix testified, when the designer draws the puppet, creates the puppet’s image and conceptualizes its clothing, the work resembles that of a costume designer. Whereas these two functions are clearly covered by the Regulations, in paragraphs 2(1)(b): costumes, coiffure and make-up design, and 2(1)(c): set design, the Tribunal concludes that puppet design is a function covered by the Regulations and the puppet designer is an artist under subparagraph 6(2)(b)(iii) of the Act.

The evidence demonstrates that the individuals who work as assistant set and costume designers are usually independent contractors. These professionals meet the criterion of contributing to the creative aspects of a production as set out in subparagraph 6(2)(b)(iii), since the proposed sector relates to the performing arts, dance and variety entertainment. The artistic skills described by Mr. Gaucher illustrate the direct contribution made by these assistants to the creative aspects of a production. The Tribunal finds, based on that evidence, that this creative contribution is sufficient for these functions to be covered by paragraphs 2(1)(b) and 2(1)(c) of the Regulations and that set and costume design assistants are artists under subparagraph 6(2)(b)(iii) of the Act.

The Tribunal accepts APASQ’s evidence that while set painters follow the artistic instructions given by the designers, their work involves a significant element of artistic adeptness. Based on this creative contribution, the Tribunal concludes that set painters contribute directly to the creative aspects of a production, and thus meet the criteria set out in subsection 2(1) of the Regulations. The Tribunal rejects the argument made by the intervenors TAI and the NAC, that set painters merely perform “support” duties, having regard to the detailed analysis done by the Tribunal in respect of the positions of assistant set and costume designer [see paragraph 158]. As the set painter’s work complements that of the set designer’s, the Tribunal concludes that it is covered by paragraph 2(1)(c) of the Regulations and the set painter is an artist under subparagraph 6(2)(b)(iii) of the Act.

The evidence shows that the director of photography has a primary role in developing the artistic and stylistic design of the film. Moreover, the director of photography works closely with other creators. These two factors are sufficient to allow the Tribunal to find that this profession contributes directly to the creative aspects of the production and is covered by paragraph 2(1)(a) of the Regulations (category 1: camera work, lighting and sound design).

The purpose of the Status of the Artist Act is to establish a framework to govern professional relations between producers in the federal jurisdiction and artists who are independent contractors. To this end, the Tribunal is responsible for determining sectors suitable for bargaining and certifying artists’ associations to represent each of these sectors, having regard to the common interests of the artists, the history of their professional relations, and any geographic and linguistic criteria that the Tribunal considers relevant.

The Tribunal believes that it is important to keep in mind the purpose of the Act. Section 7 of the Act provides that the purpose of Part II is as follows:

(…) to establish a framework to govern professional relations between artists and producers that guarantees their freedom of association, recognizes the importance of their respective contributions to the cultural life of Canada and ensures the protection of their rights.(our italics)

Although the Tribunal believes that the number of metteurs en scène who are not members of one or the other of the applicant associations is relatively small, it concludes that in order to ensure that all metteurs en scène affected by Decision No. 024 are able to exercise their rights to freedom of association, they should be able to participate in the representation vote.

Section 9 of the Act provides that an artist who contracts his or her services through an organization is covered by the Act. Accordingly, set painters who carry out their functions through a corporation may benefit from the labour relations scheme established by the Act.

When the Tribunal certifies an artists’ association, everyone working in a particular artistic field will not necessarily be covered by the certification. Obviously, artists who are engaged in an employer-employee relationship will be excluded. Moreover, it is important to point out that there is nothing that prevents a person from being an employee and also working in the arts as an independent contractor [...]

• 10(1)
• 10(2)
• 10(3)
• 10(4)
• 10(5)
• 10(6)

• 9
• 10(1), (2), (3)
• 10(1), (2), (3)
• 12(1)
• 11(1)
• 11(1), (2)

• 12, 20
• 22(1)
• 22(2)
• 22(3)
• -
• 18(1)(d)

• 11(1)
• 11(2)
• 11(3)
• 11(4)
• 11(5)

• 12.01(1)
• -
• 12.01(2), (3)
• 12.03
• 12.03

• 44
• -
• 45
• 46(1)
• 46(2)

• 12(1)
• 12(2)

• 12.04(1), (2)
• 12.05

• 23
• 24, 25

• 13(1)
• 13(2)

• 13
• 12.02(2), 14(1)

• 26
• 27, 28, 31

• 14(1)
• 14(2)
• 14(3)
• 14(4)

• 14.2(1)
• 14(3), (4), (5)
• 12(2)
• 14.1

• 30, 35
• 31, 32
• 22(4)
• 34

• 16(a)
• (b)
• (c)
• (d)
• (e)
• (f)
• (g)
• (h)
• (i)
• (j)
• (k)
• (l)

• 15(a)
• (c)
• (d)
• (e)
• (f)
• (h)
• (i)
• (k)
• (l)
• (n)
• (o)
• (p)

• 39(I)
• 39(a)
• -
• -
• -
• -
• -
• -
• -
• -
• 39(l)
• -

Section 16 of the Act gives the Tribunal the power to make regulations of general application prescribing a number of things, including the practice and procedures before the Tribunal, the certification of artists’ associations, and the period for sending notices and other documents. The Tribunal has not yet exercised its authority to make the regulations contemplated by section 16. It has instead published and distributed guidelines outlining the procedures it intends to use for the first year or two of operation before moving to the regulation making stage. In developing these guidelines, the Tribunal was mindful of the direction contained in paragraph 19(1)(a) of the Act, which provides:

19.(1) In any proceeding before it, the Tribunal

1. shall proceed as informally and expeditiously as the circumstances and considerations of fairness permit;

• 17(a)
• (b)
• (c)
• (d)
• (e)
• (f)
• (g)
• (h)
• (i)
• (j)
• (k)
• (l)
• (m)
• (n)
• (o)
• (p)

• 16(a), (f. 1)
• (b)
• (c)
• (d)
• (e)
• (f)
• (g)
• (i)
• (k)
• (l)
• (m), (m.1)
• (n)
• (o)
• -
• -
• (p)

• 40(1)(a), 40(1)(h)
• 40(1)(d)
• 40(1)(e)
• 40(1)(f)
• 40(1)(g)
• -
• 40(1)(i)
• 65(1)
• 40(l)
• -
• -
• -
• -
• -
• -
• -

Each association submitted its membership list in support of its position that it is most representative of the metteurs en scène in the sector proposed in its application. However, the sector that the Tribunal has found to be suitable for bargaining in the instant case, described above, differs from the sectors proposed by the two applicants. Under the circumstances, the Tribunal concludes that it cannot rely solely on the membership lists to determine representativeness and that there should be a representation vote so that the artists themselves can decide which association should represent them.

The following procedure was used for the conduct of the vote:

1. each applicant for certification provided the Tribunal Secretariat with a list of the names and addresses of those of its members who consider themselves to be metteurs en scène;
2. from these lists, the Tribunal Secretariat prepared a preliminary list of potential voters;
3. the list of potential voters was published in 6 French and 4 English newspapers and bilingually in the Canadian Conference of the Arts’ INFO-FAX bulletin, together with a notice inviting metteurs en scène whose names were not on the list but who met the eligibility criteria to register with the Tribunal no later than May 15, 1998. A copy of the notice is attached as Annex I to these Reasons for Decision;
4. the applicants for certification provided the Tribunal Secretariat with the campaign materials that they wished to have sent to the voters;
5. the Tribunal Secretariat sent each person whose name appeared on the final voters list a voters kit consisting of the following materials:
   1. voting instructions;
   2. a declaration of eligibility;
   3. an official ballot with the Tribunal’s seal;
   4. an envelope marked “scrutin secret”;
   5. a stamped return envelope, addressed to the Tribunal;
   6. the UDA and APASQ campaign material;
   7. a brochure describing the Status of the Artist Act and the Tribunal.
6. voters were requested to return their ballots postmarked no later than June 19, 1998.

The ballots were counted in the Tribunal’s offices in Ottawa on Monday, June 29, 1998 in the presence of representatives of the UDA and APASQ. The certificate of results signed by the Registrar of the Tribunal and the representatives of the parties is attached to these Reasons for Decision as Annex II.

[…] in order to determine whether it will exercise the power conferred on it by paragraph 17(k), the Tribunal may examine one or more of the following factors:

• The length of time that has elapsed and the circumstances surrounding the delay;
• The existence of prima facie evidence indicating that the application of the complaint has merit;
• The existence of serious reasons for extending the time limit;
• The interests of the parties and the purpose of the Act.

The concept of prima facie evidence is important since it is unlikely that a tribunal can find that a case has merit if evidence that could support the allegations is missing. In this case, we understand prima facie evidence to mean evidence that, if it were not contradicted, would lead the Tribunal to conclude that the respondent breached his or her duty to bargain in good faith with the complainant.

Accordingly, the Tribunal prefers to adopt the labour relations’ practice to the effect that costs will only be awarded in exceptional circumstances. Circumstances warranting such a measure could include, for example, when one or more provisions of the Act are violated, when irreparable harm is caused to one of the parties, or when the conduct of one or more parties at a hearing is unreasonable, frivolous or vexatious in light of all the circumstances.

Accordingly, the Tribunal prefers to adopt the labour relations’ practice to the effect that costs will only be awarded in exceptional circumstances. Circumstances warranting such a measure could include, for example, when one or more provisions of the Act are violated, when irreparable harm is caused to one of the parties, or when the conduct of one or more parties at a hearing is unreasonable, frivolous or vexatious in light of all the circumstances.

The Status of the Artist Act covers only professional artists who are found to be independent contractors in accordance with the criteria in subsection 18(b) of the Act. The Tribunal is therefore of the opinion that there is no need to specify that employees of producers are excluded from the sector. Any professional artist who meets the criteria established by the Act and who works in a sector for which a certified artist’s association has negotiated a scale agreement must be able to claim the benefit of the terms of the scale agreement, even though in a different context the individual in question may be an ”employee”.

The NFB argues that only artists recognized as such by their peers should be recognized as artists within the meaning of the Act. Although it is correct to say that, historically, some persons were recognized as artists by their peers or by third parties with whom they established a relationship, the Act does not make this distinction.

Although membership in an artists’ association is not a determinative factor, it is, however, an indication that the individual has attained a professional status for the purposes of paragraph 18(b) of the Act.

In the Tribunal’s view, periodical writers are authors of literary works within the meaning of the Copyright Act, and the purchase of their works by a publisher or producer with the intent that it be disseminated to the public in some fashion is sufficient to bring the author within the scope of 18(b) of the Act.

In interpreting any question that arises under Part II of the Act, the Tribunal is guided by the applicable principles of labour law (paragraph 18(a) of the Act). An essential component of federal labour law is Parliament’s legislative authority in this area of law. In this respect, the Tribunal endorses the statements of the Canada Labour Relations Board, as it was then, in Finn et al. v. Canadian Brotherhood of Railway, Transport and General Workers (1982), 47 di 49, at pp. 63-64:

But the dictates of judicial decision-makers must remain the Board’s final guide. We said this in an earlier decision in the following terms:

“Members of labour relations boards, whether they be full time or part time, and whether they be on a tripartite board or a non-representational board, like this Board, are not appointed because of their competence in the field of constitutional law. Notwithstanding this some considerable expertise is developed in some cases. (...) What the Boards frequently seek to find is a ‘practical’ and ‘functional’ solution. In this respect the nature of the judgment may be more labour relations oriented than activity focused as in the courts. This is not to say the Boards do not follow the judicial decisions. They do even if they disagree or find it makes little labour relations sense.”

(Northern Telecom Canada Limited, supra, pp. 76-77; and 150)

In dealing with an objection limited to the members of the federation and assuming that it would determine that certain members are “artists” within the meaning of the Act, the Tribunal would allow the producers to know the artists’ wish to be represented by an artists’ association. This would go against the fundamental principle applicable in labour law that it is paramount to keep the wish of employees (or artists) to be or not to be represented by a union (or artists’ association) confidential. In the case at bar, the producers have the right to intervene on the issue of determining the sector, but they cannot intervene on the issue of determining representativity, without the Tribunal’s permission. The Tribunal is of the opinion that it should not allow the producers to do indirectly what they cannot do directly.

In deciding any question that arises under Part II of the Status of the Artist Act, the Tribunal is directed by subsection 18(a) of the Act to take into account the applicable principles of labour law. One of these principles is that supervisors should not be included in the same bargaining unit as those whom they supervise.

The applicant has persuaded the Tribunal that the freelance conductors who are subject to the Status of the Artist Act do not perform managerial functions in the sense that this term is commonly understood in the labour relations milieu. For example, freelance conductors do not have responsibility for the discipline of musicians; this responsibility rests with symphony management. Accordingly, the Tribunal finds that it is appropriate to include conductors in the same sector with instrumental musicians.

Subsection 18(a) of the Act requires the Tribunal to take into account the applicable principles of labour law. One of these principles is that employees in managerial positions should not be included in the same bargaining unit as those whom they supervise. According to the applicant, in most cases a conductor serves as leader of a group of musicians and has few, if any, administrative duties. In other cases, where a conductor serves as musical director, he or she can have certain administrative duties, but musical directors who are independent contractors are few in number and are also musicians. The applicant also pointed out that, historically, the function of conductor has normally been covered by the collective agreements negotiated with Quebec producers by the Guilde.

The Tribunal accepts the applicant’s argument that the conductors who are independent contractors subject to the Status of the Artist Act do not, for the most part, perform managerial functions as this expression is commonly understood in the labour relations milieu, and it therefore finds that it is appropriate to include them in the same sector as performing musicians.

The reasons behind this labour law principle were explained by a panel of the Canada Labour Relations Board (“CLRB”) in Bank of Nova Scotia (Port Dover Branch) (1977), 21 di 439; [1977] 2 Can LRBR 126; and 77 CLLC 16,090 (CLRB no. 91): The basis of the exclusion of certain ‘management’ persons from the coverage of collective bargaining is the avoidance of conflicts of interest for those persons between loyalties with the employer and the union. This avoidance of conflicts protects both the interests of the employer and the union. The conflict is pronounced when one person has authority over the employment conditions of fellow employees. It is most pronounced when the authority extends to the continuance of the employment relationship and related matters (e.g. the authority to dismiss or discipline fellow employees). (...)

The Tribunal agrees that a significant level of managerial responsibility must be exercised before a function should be excluded from collective bargaining. The NFB opposed the inclusion of choreographers in the same bargaining unit as performers, on the grounds that their work includes the direction of performers, but provided no detail as to the nature of the directorial responsibilities that a freelance choreographer might exercise at the NFB.

[...]

With respect to those independent choreographers who may be engaged by producers subject to the Status of the Artist Act, the Tribunal is of the view that the administrative and supervisory responsibilities they undertake, while important, are of secondary importance to their artistic responsibilities. In these instances, it is the producer, or the director, who has the ultimate responsibility for the engagement, discipline and dismissal of the performers. Accordingly, the Tribunal finds that the level of supervisory responsibility exercised by an independent choreographer in these circumstances is not sufficient to warrant excluding them from a sector that includes dancers and other performers. Moreover, because choreographers have a demonstrable community of interest with dancers and other performers, the Tribunal concludes that it is appropriate to include them in the same sector as performing artists.

Paragraph 18(a) of the Act provides that the Tribunal shall take into account the applicable principles of labour law. As the intervenors indicated, one of these principles states that individuals who occupy management positions and the individuals they supervise not be included the same bargaining unit.

[...]

In this case, the relationship between set and costume designers and their respective assistants bears more resemblance to the relationship between a conductor and his or her musicians than to the relationship between a stage director and the performers or designers. The stage director is the “maître d’oeuvre” of the production, while the designer is not. The administrative duties are primarily the producer's responsibility, not the designer's. Set and costume designers and their assistants contribute in a collaborative manner to the creative aspects of a production, and in most cases they report to the same person. The Tribunal therefore concludes that they share a community of interest and that it is appropriate to include them in the same bargaining sector.

Directors and first assistant directors work in tandem and, although it is clear that the director provides the vision and the first assistant director implements that vision, the former does not “manage” the latter in a strict authoritative sense. The Tribunal believes that the relationship between a director and a first assistant director bears more resemblance to the relationship between a conductor and his musicians. For this reason, the Tribunal finds it appropriate to include directors and first assistant directors in the same sector.

As directed by paragraph 18(a) of the Act, the Tribunal took into account the applicable principles of labour law. Paragraph 18(a) of the Act states as follows:

18. The Tribunal shall take into account

1. in deciding any question under this Part, the applicable principles of labour law; (...)

The Tribunal has turned to the jurisprudence from the courts and labour boards for guidance on the duty of fair representation. The consideration of principles applicable in other spheres of labour relations and their application in the context of the Act, did not involve the introduction of evidence.

The original panel's determination, in regards to the nature of the grievance and more specifically the appropriateness of the heightened standard of representation ultimately decided by the Tribunal, was based on existing case law available to the parties at the time they formulated their arguments. The fact that neither party referred to these decisions did not prevent the Tribunal from relying on them. In determining matters before it, the Tribunal cannot be limited to the cases that are referred to by the parties and doing so does not constitute a denial of natural justice.

[…]

The facts considered by the Tribunal were on the face of the record and not ones that it took judicial notice of. The Tribunal did not engage in an independent search for further evidence or data. Both parties have had full opportunity to present their version of the case. The Tribunal took no new facts into consideration.

The Tribunal accepts the AFM’s submission that this is in effect a technical amendment and is satisfied that “leader” falls within the definition of performers and directors of performers at subparagraph 6(2)(b)(ii)) of the Act. Since the AFM has historically represented “leaders” as well as “conductors”, the Tribunal finds it appropriate to include these artists in the proposed sector. To avoid any confusion, “leader” will be added to the text of the French version of the new certification order.

The CBC objects to the Tribunal considering these issues, on the grounds that they were raised for the first time in a reply and should have been raised by way of an application. The Tribunal agrees that, normally, a reply should address the issues raised in a respondent’s pleading and should not be used to bring forward an entirely new application. However, the Tribunal is not a court and need not adopt strict rules of pleading, particularly in light of subsection 19(1) of the Act. The Tribunal may, in its discretion, allow a pleading of this nature provided that “considerations of fairness permit”.

The Tribunal is also of the opinion that it has the power to limit the extent of the rights of participation which an intervenor will have. In order to ensure that the informality and expeditiousness of Tribunal proceedings are not unduly compromised, the Tribunal may decide that it is necessary to restrict an intervenor’s ability to cross-examine witnesses called by the parties to a proceeding and to place time limits on the presentation of oral argument to the Tribunal.

In determining whether a person has a sufficient interest to warrant granting them intervenor status in a proceeding, the Tribunal will consider the following four factors:

1. whether the proposed intervenor is directly affected by the outcome of the proceeding;
2. whether the position of the proposed intervenor is adequately represented by one of the parties to the proceeding;
3. whether the public interest and the interests of justice would be better served by the intervention of the proposed intervenor; and
4. whether the Tribunal could hear and decide the case on its merits without the intervention of the proposed intervenor.

The Tribunal is of the view that the dispute between the applicants and the APVQ is an internal matter which is not relevant to the issues raised in the context of the application for certification.

[...]

As a distinct entity, the APVQ can apply for certification or form a federation with another artists’ association in order to make an application.

[...]

Moreover, the applicants assert that if the Tribunal certifies the federation, this could have an impact on their legal proceedings against the APVQ. However, it is important to understand that the Status of the Artist Act establishes a legal framework for collective bargaining with producers specified in paragraph 6(2)(a)

[...]

The Tribunal is of the view that the applicants have failed to demonstrate that they are directly affected by the application for certification and, consequently, are not “interested persons” within the meaning of the Act. It is not necessary to consider the issue of timeliness.

The Tribunal is of the view that the finding that it has jurisdiction to make a declaration of disqualification may rest on either subsection 19(3) or its ancillary jurisdiction. Based on Booth v. Huxter and Kirsch v. Royal Lepage Real Estate Services Ltd., the Tribunal concludes that it has jurisdiction to declare a representative to be disqualified by reason of a conflict of interest.

The Tribunal’s file indicates that two lawyers from the law firm of Sauvé et Roy, Mr. Vallée and Mr. Lavergne, handled the APVQ’s application for certification from 1996 to 1999. In light of that, there is an inference that these two lawyers and all the other lawyers at Sauvé et Roy received confidential information that is closely connected to the “matter at hand”. This inference includes Ms. Bousquet, since she was a lawyer with Sauvé et Roy during that time period. The fact that she now works for the FNC as a labour relations advisor and not as a lawyer has no effect on this finding. The principle here is that substance prevails over form.

The Tribunal is of the view that the fact that the APVQ has formed a federation with the STCVQ does not alter this finding.

[...]

The Tribunal should draw the inference, unless satisfied, on the basis of clear and convincing evidence, that all reasonable measures have been taken to prevent confidential information from being disclosed to the lawyers at Sauvé et Roy or to Ms. Bousquet. Mr. Lévesque did not suggest that any measure of that kind had been taken. Therefore we find that all the lawyers with Sauvé et Roy, as well as Ms. Bousquet, who worked at Sauvé et Roy during the relevant time period, “receive[d] confidential information attributable to a solicitor and client relationship relevant to the matter at hand”.

Accordingly, neither the lawyers at Sauvé et Roy nor Francine Bousquet may act against the APVQ.

In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, Justice L’Heureux-Dubé acknowledged at pages 677-678 that there is a right to procedural fairness before administrative tribunals, which includes the right to be heard, but that the legislative framework must be considered in order to determine whether it changes this right. Subsection 19(4) of the Act permits the Tribunal to take notice of facts that may be judicially noticed, and under subsection 19(5) it does not have to inform the parties of its intention to do so.

The Tribunal may accordingly take notice of legislation, regulations, its jurisprudence, well-known and indisputable facts and take them into consideration in its decisions and, under subsection 19(5) of the Act, it does not have to inform the parties and the intervenors concerning this kind of taking of notice. Consequently, the Tribunal is of the opinion that the Federation was not deprived of its right to be heard and that there was no breach of the rules of natural justice.

The Tribunal may accordingly take notice of legislation, regulations, jurisprudence, well-known and indisputable facts and take them into consideration in its decisions.

• 20(1)
• 20(2)

• 18, 18.1
• 20(1)

• 43
• -

This dispute is in relation to the scope, quality and fairness of ACTRA’s representation. Given the scheme of the Act, reviewing the certification order is not the appropriate mechanism to address these concerns. More appropriate avenues would be a ‘duty of fair representation’ complaint, an application for revocation or partial revocation, or a timely application for certification when ACTRA’s certificate comes up for renewal.

Subsection 20(1) of the Act provides as follows: “The Tribunal may uphold, rescind or amend any determination or order made by it, and may rehear any application before making a decision” (our italics). It is therefore clear that the Tribunal has the necessary legislative authority to amend one of its decisions.

At the joint request of the parties pursuant to subsection 20(1) of the Act, the Tribunal subsequently amended Decision No. 024 in order to permit all metteurs en scène affected by the two applications for certification to participate in the representation vote (see Decision No. 025, March 10, 1998).

The Tribunal is of the view that reconsideration of its decisions should be the exception rather than the rule. In the case at bar, the 30-day time limit for filing an application for reconsideration elapsed on May 25, 1996. To reconsider a decision after such a lengthy period could cause serious prejudice to the CAEA as well as to other artists’ associations with whom it has jurisdictional agreements. However, the Tribunal would consider extending the time limit in appropriate circumstances.

Normally, the Tribunal requires that a request for reconsideration be filed within 30 calendar days of the date of the order [...]

[...]

In this case, the request to reconsider the certification order comes almost four years after the order was made. This is an extremely long delay. The prejudice to ACTRA is obvious: it has relied on this certification in its negotiations for scale agreements. To reconsider the certification decision would upset the regime which ACTRA and the producers have negotiated. Furthermore, PACT/CMG has not offered any evidence as to why the information which it now asks the Tribunal to consider was not available at the time of the original certification order. From the evidence, it appears that the circumstances which have led to dissatisfaction amongst background performers existed in 1996 and earlier, although they have only come to the fore in the last year or so [...] The fact that the background performers’ dissatisfaction has only more recently come to the fore does not alter this fact. Accordingly, the Tribunal has decided that the request for reconsideration should be dismissed as untimely.

The Canada Labour Code, R.S.C. 1985, c. L-2, contains an identical provision at section 18. This provision has been interpreted by the Canada Industrial Relations Board and it has clearly articulated that its “... reconsideration power is not intended to be an appeal process, nor is it meant to contest the Board’s findings or the decision of the original panel” (Telus Corp. (Re), [2000] CIRB no. 94 (Q.L.) at para. 7). The Tribunal agrees with this interpretation and, accordingly, will not interfere lightly with its findings unless it has committed an error of law or a serious error of fact.

Having regard to the evidence submitted by SPACQ, and having regard to SPACQ's commitment to assisting the GCFC in representing the GCFC's French-speaking members, the requested amendments are reasonable in the instant case. In addition, the changes proposed by SPACQ do not jeopardize the basis of its certification itself, that is, the appropriateness of the sector for bargaining and the representativity of SPACQ for the sector in question. Accordingly, the Tribunal is of the opinion that SPACQ's request should be granted.

An application for reconsideration of a Tribunal decision must therefore be made within 30 calendar days of the date of the decision, with the exception of an application for review involving only an amendment of the sector determination, which can be made at any time.

Subsection 25(3) of the Act requires the publication of public notices in the case of applications for certification. This practice is also commonly followed by the Tribunal when dealing with requests for review where the scope of a sector could be affected. Public notices appear in the Canada Gazette, Part I, as well as in a wide range of publications including widely distributed daily newspapers, specialized journals and daily and weekly newspapers in the minority official language throughout Canada.

The Tribunal's review power is explained further at section 45 of the Canadian Artists and Producers Professional Relations Tribunal Procedural Regulations, SOR/2003-343, (the "Regulations"):

45. (1) Subject to subsection (3), any person affected by a determination or order of the Tribunal may, within 30 days after the date of the determination or order, make an application for a review of the determination or order.

(2) The application must be based on the grounds that
(a) the Tribunal's determination or order contains an error of law or a serious error of fact; or (...)

The Canada Labour Code, R.S.C. 1985, c. L-2, has a provision similar to the review provisions of the Act and its Regulations. This provision has been interpreted by the Board and it has clearly articulated that its "(...) reconsideration power is not intended to be an appeal process, nor is it meant to contest the Board's findings or the decision of the original panel" (Telus Corporation, [2000] CIRB no. 94; and 72 CLRBR (2d) 305).

The Board also had the following to say about the use of the reconsideration power in its decision in Canadian Broadcasting Corporation (1991), 86 di 92; and 92 CLLC 16,006 (CLRB no. 897)

(...) Let us repeat what was said recently in CanWest Pacific Television Inc. (CKVU) (1991), 84 di 19 (CLRB no. 847), to the effect that reconsideration of decisions is the exception rather than the rule. The Board's primary concern is the finality of its decisions and the onus is therefore on an applicant to satisfy the Board that there are serious grounds which warrant the setting aside of the original decision. The primary function of a reconsideration panel is to screen applications with these policies in mind. Applications will not proceed past this initial screening stage if they do not provide new facts or circumstances which, if they had been known at the time, could have resulted in the Board arriving at a different conclusion. Applications alleging error in law or policy that do not contain something substantial, which throws the interpretation applied by the original panel into serious doubt, will meet the same fate. Mere disagreement with the Board's analysis of the facts or with the interpretation of law or policy applied by the Board are not grounds for a review by the full Board sitting in plenary.

Similarly, the Board wrote in 591992 BC Ltd., [2001] CIRB no. 140

The finality of its decisions is of primary concern to the Board. Thus, the rescinding of an original panel's decision remains the exception rather than the rule. The applicant has the burden of proving that there are serious reasons, or even exceptional circumstances, that would justify the reconsideration of a decision. The grounds raised by the employer in the present matter do not appear to warrant re-opening of the case.

The Tribunal agrees with these interpretations and, accordingly, will not interfere lightly with its findings.

• 21(1)
• 21(2)

• 22(1)
• 22(2)

• 51(1)
• 51(3)

• 22(1)
• 22(2)
• 22(3)s

• 23(1), 23.1
• 23(2)
• 23(3)

• 52(1)
• -
• 52(2)

• 24(1)
• 24(2)
• 24(3)

• -
• -
• -

• -
• -
• -

An organization which styles itself as a producers’ association but which does not have as members any producers who are in the federal jurisdiction is not a “producers’ association” within the meaning of the SAA and must apply to the Tribunal for status to intervene in accordance with subsection 19(3).

• 25(1)
• (2)
• (3)
• (4)

• 24(1), 24(2)(a), (b), (c)
• -
• -
• -

• 54, 55
• -
• 54
• -

The Status of the Artist Act provides a regime for the certification of an artists’ association to represent freelance artists working in a particular sector. Certification by the Tribunal gives the artists’ association the exclusive authority to bargain on behalf of artists working in that sector. It is not necessary for each individual artist to grant a licence or mandate to the artists’ association to bargain on his or her behalf; by virtue of the certification, the statute effectively appoints the certified artists’ association as the bargaining agent for all individuals working in the sector designated by the Tribunal.

The Tribunal does not consider its proceedings in an application for certification to be adversarial, unless a competing application for certification is filed.

This legislative scheme does not require that the Tribunal determine, at the application for certification stage, the usual relationship between the producer(s) and the applicant’s different members when they exercise their profession.

[...]

In fact, such a requirement appears to go completely against the fundamental principles underlying the Act. When the Tribunal certifies an artists’ association, this does not mean that all persons working in a given artistic field will be affected by the certification. It stands to reason that artists engaged in an employer-employee relationship are excluded. However, it is important to bear in mind that there is nothing preventing someone from being an employee and working in the artistic world as an independent contractor at the same time [...]

[...] by proceeding in the manner requested by the federal producers, the Tribunal may well undermine the purposes of the Act since their objection concerns only members of the federation. However, the federation has not only asked for certification of the artists included in the proposed sector who are its members; it is requesting certification for all the artists working in the sector sought, whether they are members or not. In accordance with its policy, the Tribunal continues “to certify the artists’ association that it considers the most representative of each artistic sector, by granting to this association the exclusive authority to bargain on behalf of all the artists in the sector, whether or not they are members of the association” [...]

In dealing with an objection limited to the members of the federation and assuming that it would determine that certain members are “artists” within the meaning of the Act, the Tribunal would allow the producers to know the artists’ wish to be represented by an artists’ association. This would go against the fundamental principle applicable in labour law that it is paramount to keep the wish of employees (or artists) to be or not to be represented by a union (or artists’ association) confidential. In the case at bar, the producers have the right to intervene on the issue of determining the sector, but they cannot intervene on the issue of determining representativity, without the Tribunal’s permission. The Tribunal is of the opinion that it should not allow the producers to do indirectly what they cannot do directly.

Although the Tribunal must examine an association’s constitution and by-laws in order to assure itself that the association is an “artists’ association” within the meaning of the Act, this does not mean that the Tribunal will become involved in the internal disputes of associations. In the present case, there is nothing in the applicants’ submissions which suggested that the APVQ or the federation lacked the necessary status to apply for certification. Indeed, the CSN’s constitution states [translation]: “Each affiliated organisation forms a distinct entity. [...]”. As a distinct entity, the APVQ can apply for certification or form a federation with another artists’ association in order to make an application. It should be noted that the APVQ and CSN constitutions require that affiliates must respect the CSN constitution. However, that is an internal matter which is none of the Tribunal’s concern and, furthermore, which is outside the scope of the present certification proceedings.

With respect to applications for certification, the procedure adopted by the Tribunal provides that when the public notice contemplated by subsection 25(3) of the Act is given, it not only indicates the period in which competing applications may be made by other artists’ associations, but also sets a time period in which artists, artists’ associations and producers who have an interest in the application must notify the Tribunal of their interest.

By setting a time limit, the Tribunal essentially requires artists, artists’ associations and producers to notify the Tribunal of their intent to claim the right of intervention granted to them by subsections 26(2) and 27(2) of the Act. This procedure enables the Tribunal to notify the applicant artists’ association on a timely basis of the interventions that have been filed with respect to its application. This notification enables the applicant to modify its application or to prepare to meet the concerns raised by the intervenors.

There are two means by which an artists’ association can obtain standing to intervene in an application for certification filed by another artists’ association. One is by filing its own application for certification for the same sector or any part of it during the time period prescribed by the Tribunal in the public notice (see subsection 25(3) of the Act); the second is by claiming the statutory right to intervenor status provided for in subsections 26(2) and 27(2) of the Act.

Because the effect of CMAQ’s request was to expand the sector it had been certified to represent, the Tribunal decided that it was important to seek the views of artists and producers who might be affected by the request. Public notice was therefore given in La Presse, Le Soleil and The Globe and Mail on December 3, 1997. This notice also appeared in Le Devoir on December 13, 1997 and in the December 1997 issue of the INFO-FAX bulletin of the Canadian Conference of the Arts.

When the Tribunal publishes a public notice, the sector definition which appears is in fact only a proposed sector, not necessarily the sector which will be granted to the particular artists’ association. At that stage of the process, the Tribunal has not made a determination as to what the appropriate sector for bargaining should be. The Tribunal has frequently refined or amended proposed sector definitions in light of the evidence it heard from applicants and intervenors. In cases where the Tribunal has done so, it has satisfied itself that the new sector definition did not enlarge the sector that was initially proposed.

• 26(1)
• 26(2)
• 26(3)

• 27
• -
• -

• 57
• -
• -

There are only two issues to be determined by the Tribunal in an application for certification: (1) whether the proposed sector is suitable for bargaining; and (2) whether the applicant is the most representative of artists working in the sector. Accordingly, the Tribunal treats its proceeding as an inquiry or investigation process, leading to the required determinations.

Generally speaking, the Tribunal believes that national sectors are more suitable for bargaining with producers who are under federal jurisdiction when language is not a part of the artistic expression, as is the case with music, dance and the visual arts. This holds true especially when there is a national artists’ association with the infrastructure necessary to serve its membership in both official languages. The Tribunal believes that is preferable to limit the number of sectors to avoid overlap and conflict.

Although the Tribunal is not fully convinced by the applicant’s arguments, it recognizes that there is a jurisdictional agreement between the AFM and the Guilde that reflects a factual situation in the operations of these two organizations. Moreover, the Tribunal recognizes that the Guilde’s application covers all musicians in Quebec, whereas the AFM’s application covers only its members. In order to allow as many artists as possible to enjoy the benefits of the Status of the Artist Act, the Tribunal prefers sector definitions that include all artists in a given discipline, as opposed to definitions that include only the members of an association. The Tribunal therefore concludes, having regard to the facts of the instant case, that a separate sector covering all musicians in Quebec is acceptable.

The Tribunal finds that the duties of a réalisateur described in paragraph [23], including staging, clearly and exhaustively define the work of such directors. The Tribunal wishes to point out that a person’s job title does not necessarily determine the sector to which that person belongs; one must examine the duties that the person actually performs. As the Tribunal explained earlier, a person with the title “metteur en scène” must be considered a réalisateur/co-réalisateur included in any sector granted to ARRQ because this person exercises full authority equivalent to that of the réalisateur, whereas someone else with the title “metteur en scène” would not be included in the sector proposed by ARRQ because they work under the supervision of a réalisateur or because his or her participation is limited to a single aspect of the production. For these reasons, the Tribunal believes that the definition of the proposed sector should make reference to the “duties of a director” and not merely to the title “director” (réalisateur).

In its decision concerning La Guilde des musiciens du Québec (decision No. 020), the Tribunal set out its position regarding the application of linguistic and geographic criteria in defining a sector. In summary, the Tribunal believes that it is preferable to limit the number of sectors to avoid potential overlap or conflicts. Where language is not part of artistic expression, as is the case with music, dance and the visual arts, the Tribunal believes that national sectors are more suitable for bargaining with producers in the federal jurisdiction, provided there is a national artists’ association with the infrastructure necessary to serve its membership in both official languages. However, when language is part of the artistic expression as in the case of authors, linguistic criteria assume greater importance and the Tribunal takes them into account when defining the sector.

The Tribunal is of the view that in the case of audio-visual productions, language is an essential element of artistic expression and that it would have been preferable for the proposed sector to include all directors of French-language audio-visual productions in Canada. However, in addition to linguistic and geographic criteria, the Tribunal is required to take into account other criteria, including the history of professional relations between directors and producers.

The Tribunal is of the opinion that notwithstanding the important role a fight director plays in ensuring the safety of performers in scenes involving the illusion of physical conflict, an artists’ association representing such a small sector would not have sufficient bargaining power to ensure that the interests of fight directors are protected adequately. The Tribunal therefore is not persuaded that the interests of fight directors would be served by creating a separate sector for this occupation.

The Tribunal has an obligation to prevent overlap between certified sectors by excluding from the definition of new sectors those it has already defined. Consequently, relying on CMAQ’s statement that it is the artist himself/herself who decides, for a given work, whether he/she belongs to the arts and crafts sector or the visual arts sector, the Tribunal will add to the definition of the sector for arts and crafts a provision excluding artists who identify themselves as belonging to the visual arts sector.

If the Tribunal were to establish a separate bargaining unit for background performers, this would lead to a multiplicity of certifications in the same area and would ultimately dilute bargaining power for artists’ associations while forcing producers to undertake collective bargaining with two or more associations instead of just one. These are just some of the undesirable effects of fragmentation. Furthermore, when it certified ACTRA, the Tribunal did so on the basis of a community of interest which it found between background performers and other performers referred to in ACTRA’s certificate. This community of interest remains a live consideration in this case. Although some performers work exclusively in background, the evidence showed that others work in both background and other disciplines mentioned in the ACTRA certificate. In those circumstances, the Tribunal will not fragment the sector unless there are compelling circumstances.

Compelling circumstances are absent in this case.

The Federation emphasizes the historical and economic factors that have influenced film and television production in Québec, in order to justify granting a sector on a geographical basis. The Federation also notes the particular working methods that exist in Québec, even though these methods have changed since the increase in the number of American productions filmed in Québec. The Tribunal agrees that these factors argue in favour of granting a “geographical” sector in the present case.

The Tribunal agrees that language is an important element of the artistic expression in design, and it would have been preferable for the proposed sector to cover all designers working on a French-language production throughout Canada. Even if, in the Tribunal’s view, a sector that includes all designers who work on French-language productions in Canada seems more “functional”, the sector proposed by APASQ is not as vast, and APASQ is not prepared to make such a proposal viable.

In light of the evidence it has heard, the Tribunal is unable to conclude that metteurs en scène have more interests in common with performers than they do with designers. In fact, the probability that the interests of metteurs en scène differ from those of each of these two groups leads the Tribunal to conclude that it would be more appropriate to create a separate sector for metteurs en scène. The Tribunal recognizes that this conclusion differs from the one it reached in the case of the Canadian Actors’ Equity Association (see Decision No. 010, rendered on April 25, 1996), where it determined that stage directors should be included in the same sector as performers. However, the Tribunal notes that, in that case, the applicant established that it had historically represented stage directors and that its scale agreements covered both performers and directors.

If the Tribunal were to accept that the sector definition excluded symphonic performances of an opera as requested by the NAC, it would be accepting that some singers could not be covered by a scale agreement. It has been the constant intention of the Tribunal in defining various sectors to be as inclusive as possible, in the interest of the well-being of all artists.

[...]

[...] the sector definition was meant to include all artists who take part in an operatic work as singers, in whatever form. Singers performing an opera on stage, off stage, or in a pit are within the sector. The lack of theatrical elements including staging, direction, costumes, lighting, sets, props or costumes is irrelevant. The wording of the sector definition is sufficiently broad to encompass singers engaged in symphonic performances of opera in concert.

Although subsection 26(2) of the Act states that “only the artists in respect of whom the application was made, artists’ associations and producers may intervene as of right on the issue of determining the sector that is suitable for bargaining”, it does so “notwithstanding subsection 19(3)”. Similarly, subsection 27(2) which grants only artists in respect of whom the application was made and artists’ associations the right to intervene on the issue of determining the representativity of an artists’ association is also “notwithstanding subsection 19(3)”.

It is the Tribunal‘s view that the interaction of 19(3), 26(2) and 27(2) establishes two categories of intervenors: those who are intervenors as of right and those who are intervenors by permission of the Tribunal.

Subsections 26(2) and 27(2) of the Act provide that artists’ associations may intervene as of right on the issue of determining the sector that is suitable for bargaining and the representativity of the applicant.

Subsection 26(2) of the Act provides that producers may intervene as of right on the issue of determining the sector that is suitable for bargaining. Producers may not intervene as of right on the issue of the representativity of an artists’ association.

The Tribunal is of the opinion that there is indeed a community of interest between dancers and other professionals who engage in live theatrical performances. The Status of the Artist Act also directs the Tribunal to take into account the history of professional relations among the artists, their associations and producers when determining the suitability of a sector for bargaining. However, the Tribunal is also mindful that if progress is to be made in achieving the objectives of this new Act, and particularly in improving the compensation paid to artists for their work, it may sometimes be necessary to go beyond the limits of historical professional relations. The applicant has demonstrated that it has experience in representing dancers, although in a somewhat more limited sphere than they are seeking in this application. The Tribunal therefore finds it is appropriate to include dancers engaged by producers subject to the Status of the Artist Act within the scope of the sector.

In applying this criterion, the Tribunal looks at the whole of the association’s activities in order to determine its entire history of professional relations. It does not rely solely on the existence of scale agreements. In addition, the history of professional relations is based not only in terms of the relationship between artists’ associations and producers, but also as between artists and the associations, and as among the artists themselves.

The evidence demonstrates that the artistic skills required in order to be a designer or other off-stage participant are the same, and that these artists work in theatre, opera, dance and variety entertainment.

When reviewing an association’s history of professional relations, the Tribunal must not only look to the existence of scale agreements, but all types of agreements that the association has negotiated on behalf of the artists it seeks to represent.

The evidence clearly indicates that there is a long history of professional relations between the GCFC, its members, producers and other organizations. Although no scale agreements were filed with the Tribunal, the GCFC has developed a “contract recipe” available to members on its website. Artists and producers can amend the terms of the “contract recipe” to meet their needs. The GCFC filed agreements that indicate that it maintains professional relations with other organizations such as the Songwriters Association of Canada, the AFM, SOCAN, and SODRAC.

Detailed evidence was presented at the hearing regarding the DGC’s history and in particular its record in representing the interests of directors and assistant directors. The DGC’s representation dates back to the early 1960s and touches on an extensive array of interests from labour relations proper, to training, copyright issues and government policy in the arts. Several scale agreements have been negotiated with Canadian and even foreign producers. Consequently, the Tribunal finds there is a long and important history of professional relations in the proposed sector.

Vocalists, for the purposes of this application, are those musicians who both play an instrument and sing. The AFM informed the Tribunal that it is seeking to represent only those singers who accompany themselves on a musical instrument. It has entered into agreements with the Canadian Actors’ Equity Association, ACTRA Performers Guild and Union des Artistes that describe the respective jurisdictions of these organizations in this regard. The Tribunal is of the view that musicians who may sing while playing a musical instrument have a community of interest with other instrumental musicians, and therefore, to the extent that these professionals are not already represented by an artists’ association certified by the Tribunal, they should be included in the same sector as other musicians.

With respect to those independent choreographers who may be engaged by producers subject to the Status of the Artist Act, the Tribunal is of the view that the administrative and supervisory responsibilities they undertake, while important, are of secondary importance to their artistic responsibilities. In these instances, it is the producer, or the director, who has the ultimate responsibility for the engagement, discipline and dismissal of the performers. Accordingly, the Tribunal finds that the level of supervisory responsibility exercised by an independent choreographer in these circumstances is not sufficient to warrant excluding them from a sector that includes dancers and other performers. Moreover, because choreographers have a demonstrable community of interest with dancers and other performers, the Tribunal concludes that it is appropriate to include them in the same sector as performing artists.

Paragraph 18(a) of the Act provides that the Tribunal shall take into account the applicable principles of labour law. As the intervenors indicated, one of these principles states that individuals who occupy management positions and the individuals they supervise not be included the same bargaining unit.

[...]

In this case, the relationship between set and costume designers and their respective assistants bears more resemblance to the relationship between a conductor and his or her musicians than to the relationship between a stage director and the performers or designers. The stage director is the “maître d’oeuvre” of the production, while the designer is not. The administrative duties are primarily the producer's responsibility, not the designer's. Set and costume designers and their assistants contribute in a collaborative manner to the creative aspects of a production, and in most cases they report to the same person. The Tribunal therefore concludes that they share a community of interest and that it is appropriate to include them in the same bargaining sector.

The evidence shows that a stage manager must be familiar with the work carried out by each member of the production team, allowing him or her to be the liaison between the stage director and this team. The assistant director assists the stage director from the start of the project to opening night, and contributes to the development and finalizing of the staging. In practice, the assistant stage director often becomes the stage manager of the production.

The Tribunal is satisfied that the individuals who occupy the positions of stage manager and assistant stage director share a sufficient community of interest with designers to include them in a single bargaining sector.

In the present case, the evidence shows that individuals working on a film set must form close-knit teams to carry out the project successfully, and that each of these teams is essential to the production. Furthermore, the evidence indicates that management responsibilities primarily lie with the producer and/or director. Consequently, we find that it is appropriate to include designers and creators in the same bargaining sector as the other artists covered by the Regulations, since all these individuals really do have common interests.

There are common interests between authors, composers and author-composers, as they are recognized, throughout the world in copyright legislation, as being primary artistic creators. Like authors, composers and author-composers tell stories with music. This group of artists, compared to other artists, share the same distinctive characteristics in their work which requires a similar degree of creativity. They also share similar working conditions. Accordingly, it is our view that there exists a strong community of interests among the artists in the proposed sector.

Directors and assistant directors work in a constant collaborative effort, one acting as the “right hand” of the other in the implementation of an artistic vision. The work of the assistant director also serves in many cases as a stepping stone to becoming a director, namely through the direction of background performers and of a second unit in a production. These elements establish a strong community of interest between assistant directors and directors.

The NCC submitted that masters of ceremonies do not share a community of interest with the artists in Equity’s sector. We would agree that someone engaged to act as master of ceremonies or toastmaster at a conference or a private social event may not share a community of interest with the artists in Equity’s sector. Furthermore, as discussed in paragraph 19 above, we have indicated that the Act applies only to those artists deemed to be “professionals” as defined in paragraph 18(b) of the Act and we have found that Mr. Girard clearly falls within that category. Consequently, we find that masters of ceremonies and the other artists included in Equity’s sector share a community of interest.

The AFM is correct in saying that no other association has been certified to represent only its own members. The Tribunal has stated in the past that:

In order to allow as many artists as possible to enjoy the benefits of the Status of the Artist Act, the Tribunal prefers sector definitions that include all artists in a given discipline, as opposed to definitions that include only the members of an association. (1997 CAPPRT 020 (GMQ), para. 36)

• 27(1)
• 27(2)

• -
• -

• -
• -

There are only two issues to be determined by the Tribunal in an application for certification: (1) whether the proposed sector is suitable for bargaining; and (2) whether the applicant is the most representative of artists working in the sector. Accordingly, the Tribunal treats its proceedings as an inquiry or investigation process, leading to the required determinations.

Each association submitted its membership list in support of its position that it is most representative of the metteurs en scène in the sector proposed in its application. However, the sector that the Tribunal has found to be suitable for bargaining in the instant case, described above, differs from the sectors proposed by the two applicants. Under the circumstances, the Tribunal concludes that it cannot rely solely on the membership lists to determine representativeness and that there should be a representation vote so that the artists themselves can decide which association should represent them.

In circumstances such as the present case, where there are two artists’ associations that have applied to represent the same artistic sector, the Tribunal must carefully reflect on the factors that it will consider when determining whether it is satisfied that either one of them is the “most representative” of artists in the sector that it has found to be suitable for bargaining.

Clearly, the test is not that which is used in traditional labour relations, where an applicant for certification must demonstrate that it represents a majority of the employees in the bargaining unit (for example, 50% + 1). Had Parliament wished to impose this criteria, it would have included in the Status of the Artist Act provisions analogous to sections 28 to 31 of the Canada Labour Code (R.S.C. 1985, c. L-2, as am.). It did not.

Nevertheless, the Tribunal must consider a number of the traditional factors used in any democratic system. Among the factors that the Tribunal believes it is appropriate to consider are the overall size of the sector, the total number of votes cast and the number of votes cast for each applicant for certification.

The Tribunal is of the view that Parliament left it with significant discretion to determine representativeness in recognition of the fact that, when dealing with independent contractors, it is often difficult if not impossible to determine the exact size of a sector.

Although subsection 26(2) of the Act states that “only the artists in respect of whom the application was made, artists’ associations and producers may intervene as of right on the issue of determining the sector that is suitable for bargaining”, it does so “notwithstanding subsection 19(3)”. Similarly, subsection 27(2) which grants only artists in respect of whom the application was made and artists’ associations the right to intervene on the issue of determining the representativity of an artists’ association is also “notwithstanding subsection 19(3)”.

It is the Tribunal’s view that the interaction of 19(3), 26(2) and 27(2) establishes two categories of intervenors: those who are intervenors as of right and those who are intervenors by permission of the Tribunal.

Subsections 26(2) and 27(2) of the Act provide that artists’ associations may intervene as of right on the issue of determining the sector that is suitable for bargaining and the representativity of the applicant.

The Status of the Artist Act does not provide producers with a statutory right to make submissions regarding the representativeness of an applicant for certification (see subsection 27(2)). In the Tribunal’s view, representativeness should be a matter between the applicant artists’ association and the individual artists in the sector determined by the Tribunal to be suitable for collective bargaining.

• 28(1)
• 28(2)
• 28(3)
• 28(4)
• 28(5)

• 28
• -
• -
• -
• 36(1), (a), (b), (c)

• 64(1)(a)
• -
• -
• -
• 67, 68

In circumstances such as the present case, where there are two artists’ associations that have applied to represent the same artistic sector, the Tribunal must carefully reflect on the factors that it will consider when determining whether it is satisfied that either one of them is the “most representative” of artists in the sector that it has found to be suitable for bargaining.

Clearly, the test is not that which is used in traditional labour relations, where an applicant for certification must demonstrate that it represents a majority of the employees in the bargaining unit (for example, 50% + 1). Had Parliament wished to impose this criteria, it would have included in the Status of the Artist Act provisions analogous to sections 28 to 31 of the Canada Labour Code (R.S.C. 1985, c. L-2, as am.). It did not.

Nevertheless, the Tribunal must consider a number of the traditional factors used in any democratic system. Among the factors that the Tribunal believes it is appropriate to consider are the overall size of the sector, the total number of votes cast and the number of votes cast for each applicant for certification.

The Tribunal is of the view that Parliament left it with significant discretion to determine representativeness in recognition of the fact that, when dealing with independent contractors, it is often difficult if not impossible to determine the exact size of a sector.[...]

It is clear that the Canadian Artists and Producers Professional Relations Tribunal does not have the power to confer rights which are within the jurisdiction of the Copyright Board. The right to bargain conferred as a consequence of the Tribunal’s certification of an artists’ association is the only right which is contemplated by the Status of the Artist Act.

In these early stages of collective bargaining on behalf of artists who are independent contractors, the Tribunal is not inclined to begin defining or limiting the subjects that can be included in the category of “matters related to the provision of artists’ services”. In our view, it would be unacceptable to divide the provision of services from the use of the work. A producer who commissions a work must be able to use or disseminate the work for which he or she has paid.

The Tribunal is not convinced that it is appropriate, at this time, to define or limit the exclusive authority resulting from the determination of a sector under the Status of the Artist Act. As we stated in interim decision #001 dated December 8, 1995, “there is no necessary conflict between the provisions of the Status of the Artist Act and those of the Copyright Act.” We are certain that if an artists’ association were to try, without the necessary authorization, to appropriate the exclusive rights held by a body mandated by the Copyright Board, that transgression would be brought to the Tribunal’s attention by way of a complaint.

When the Tribunal grants certification to an artists’ association, this association obtains the exclusive right to bargain on behalf of all artists in the sector with producers under federal jurisdiction. Consequently, there must not be any overlap between bargaining sectors.

[...] the Tribunal endeavours to certify the artists’ association that it considers the most representative of each artistic sector, granting to this association the exclusive authority to bargain on behalf of all the artists in the sector, whether or not they are members of the association. Apart from CMAQ’s case, the Tribunal has made only one exception to this practice, [...]

PACT/CMG says that the background performers covered by ACTRA’s certificate are not the same as the ones covered by its application for certification – it states that background performers covered by ACTRA’s certificate are limited to those background performers who are members of ACTRA. This is not a valid position. The certificate held by ACTRA is not limited to ACTRA members. When the Tribunal certifies an artists’ association, it normally does so for all artists in the sector, not just for members of the association; exceptions rarely occur, [...]

The Tribunal nevertheless wishes to point out that certification to represent all the artists in a sector imposes on the certified association the obligation to negotiate scale agreements with producers in the federal jurisdiction that establish minimum terms and conditions for the provision of services. The association is required to protect the interests of non-members as well as members.

The duty of fair representation exists as a counterpart to the artists' association exclusive authority to bargain on behalf of artists in that sector. When the Tribunal certifies an artists' association, the association becomes the exclusive representative of artists in that section with their relations with producers.

• 29(1)
• 29(1) a)
• 29(1) b)
• 29(2)
• 29(3)
• 29(4)

• 38(1)
• -
• 38(2), 39(2)
• -
• -
• 42a)

• -
• 98(b)
• 94
• -
• -
• 101(1)(a)

Nowhere does the Act refer to the notion of “abandonment” of bargaining rights

[...]

Should this Tribunal adopt an approach like that of the OLRB, i.e. recognizing an implicit power to declare bargaining rights to have been abandoned? Such an interpretation is not a step which should be taken lightly, or without the benefit of full argument, since it goes to the jurisdiction of the Tribunal. The onus was on PACT/CMG to convince the Tribunal that it should adopt an approach like that of the OLRB, which it failed to do.

• 30(1)
• 30(2)

• 43(1)
• 43(2)

• 79(1)
• 79(2)

We draw two general principles from the wording of this section, principles we will apply in our analysis of the facts of this case. The first is that an association succeeding another must also be an association pursuant to the Act. The second is that the role of the Tribunal is limited to recognizing that a merger has taken place and determining its consequences.

[...] the association alleging that it is the successor of another must first demonstrate that it is also an artists’ association or a federation of artists’ associations as defined under section 5 of the Act.

A necessary consequence of the aforementioned requirement is, in our opinion, that the statutes and by-laws of the succeeding association must first conform to the criteria for certification set out at section 23 of the Act. Although this is not an application for certification, it would seem illogical to allow an association to gain certification indirectly while its statutes and by-laws would have precluded it from doing so in the case of an application for certification.

• 31(1)
• 31(2)
• 31(3)
• 31(4)
• 31(5)

• 48
• 49(1)
• 36(2)
• 49(2)
• -

• 105(1)
• 105(2)(b)
• -
• -
• -

The objective of the bargaining undertaken by an artists’ association subsequent to certification is to put in place one or more scale agreements prescribing the minimum terms and conditions under which the artists covered by the agreement will provide their services to producers in the federal jurisdiction. The content of the scale agreement is a matter for negotiation between the certified artists’ association and the producers; the scale agreement could touch on matters of copyright but need not necessarily do so.

What is included in this right to bargain? Subsection 31(1) of the Act states that the purpose of bargaining is to enter into a scale agreement. A scale agreement is defined as “an agreement in writing between a producer and an artists’ association respecting minimum terms and conditions for the provision of artists’ services and other related matters”.

In these early stages of collective bargaining on behalf of artists who are independent contractors, the Tribunal is not inclined to begin defining or limiting the subjects that can be included in the category of “matters related to the provision of artists’ services”. In our view, it would be unacceptable to divide the provision of services from the use of the work. A producer who commissions a work must be able to use or disseminate the work for which he or she has paid.

[...] the duty to bargain in good faith is ongoing, beginning at the point at which the notice to bargain is given and ending when a scale agreement is signed. [...]

• 33(1)
• 33(2)
• 33(3)
• 33(4)
• 33(5)

• 56
• -
• 33(3)(a)
• -
• -

• 114, 115
• -
• -
• -
• -

The objective of the bargaining undertaken by an artists’ association subsequent to certification is to put in place one or more scale agreements prescribing the minimum terms and conditions under which the artists covered by the agreement will provide their services to producers in the federal jurisdiction. The content of the scale agreement is a matter for negotiation between the certified artists’ association and the producers; the scale agreement could touch on matters of copyright but need not necessarily do so.

The Tribunal wishes to point out that even though persons with the title “metteur en scène” in radio or television are excluded from the sector, this does not mean that a certified association that represents theatre directors could not negotiate terms and conditions for the payment of fees when their works are recorded and broadcast, regardless of the form. As UDA witness Mrs. Erika Marcus explained, there are already agreements covering performers that provide for compensation when a work in which they have performed is recorded and broadcast. According to APASQ, it would be possible to honour the copyrights of metteurs en scène when their works are recorded by producers through collective agreements negotiated in the performing arts sector.

Although an artist in a given sector is bound by a scale agreement negotiated by a certified association, the Act provides that an artist may benefit from an individual contract that is more favourable. [...]

The scheme of the Act differs from traditional labour law in that individual negotiation can take place between an artist and a producer in respect to terms and conditions of engagement that are more favourable than those contained in the scale agreement. […]

The Tribunal has commented on this provision in The Writers Union of Canada, 1998 CAPPRT 028 at paragraph 62:

Under the Status of the Artist Act regime, artists retain control over the decision whether to accept a commission from a producer or to allow a particular producer to use one of their works. The artist remains free to negotiate individual contracts above the minimum, but no producer may offer less than the terms set out in the scale agreement to which the producer and the artists' association have agreed. For the use of the work, the artist receives, directly from the producer, either the remuneration prescribed by the scale agreement or whatever greater amount the artist has been able to negotiate. To enforce the right to payment under the scale agreement, the artist has recourse to the dispute resolution procedure provided in the agreement and the resources of the certified artists' association.

Accordingly, without a nexus to a federal undertaking, it is our view that Parliament is without authority to enact legislation governing the relationship between unions and their members. This reasoning would apply equally to artists’ associations and their members under the Act as Parliament cannot legislate over matters that do not come within its constitutional jurisdiction.

As section 35 of the Act stipulates, the duty owed by an artists’ association to an artist must involve rights under a scale agreement applicable to him or her. This provision has a nexus to a federal undertaking built into it: the existence of a scale agreement enforceable under the Act. In order to be enforceable under the Act, one of the parties to a scale agreement must be a producer subject to the Act.

The Tribunal did not receive any evidence to the effect that Christopher was subject to a scale agreement binding Equity and a producer under federal jurisdiction at the time the impugned events took place. Consequently, the Tribunal must conclude that it lacks jurisdiction to adjudicate the complaint under this section.

The duty of fair representation exists as a counterpart to the artists' association exclusive authority to bargain on behalf of artists in that sector. When the Tribunal certifies an artists' association, the association becomes the exclusive representative of artists in that section with their relations with producers. […]

The duty of fair representation is a fundamental part of Canadian labour legislation. It exists as a counterpart to the union's exclusive authority over the negotiation and administration of the collective agreement and the power it yields in representing its members as a single entity vis-à-vis the employer/producer. Applied to the Act, the artists' association's exclusive authority is counterbalanced by the duty provided at section 35 of the Act to treat all members of its representative sector fairly.

The Tribunal's role in a complaint under section 35 of the Act is to review the association's decision-making process, not the merits of the grievance. The standard of conduct applies to the manner in which the association exercised its internal decision-making authority in relation to the complainant's concerns.

[…]

It is clear that the role of the Tribunal in a duty of fair representation complaint is not to review the outcome of the grievance, nor to substitute its judgement for that of the association. However, as stated above, the Tribunal may review the facts of a grievance to determine whether an artists' association investigation has adequately reflected "the worthiness and seriousness" of the grievance.

The question before the Tribunal is to determine whether or not the WGC breached its duty of fair representation through, as alleged by the complainant, bad faith or arbitrary conduct in its handling of the complainant's grievance.

The degree of scrutiny afforded by the Tribunal will vary depending on the seriousness of the matter and the association's sophistication, experience and resources in dealing with these matters. Accordingly, the Tribunal's assessment of the artists' association process is a contextual one. Once established, it is against this backdrop, that the artist's association's actions will be examined.

[…]

In the unique labour-cultural milieu of the Status of the Artist Act, any scale agreement disputes that involve licensing of copyright are considered to be of primordial importance by the parties to the scale agreement. Indeed, these types of issues can be paralleled to those which involve questions of seniority in collective agreements subject to federal and provincial labour regimes. "A higher degree of recognition of individual interests will prevail on matters of critical job interest, which may vary from industry to industry and from employer to employer". In the cultural milieu, scale agreement matters dealing with issues of copyright are, in the Tribunal's view, to use the language of Brenda Haley, supra, "a matter of critical job interest".

• 36(1)
• 36(2)
• 36(3)
• 36(4)
• 36(5)
• 36(6)

• 57(1)
• 57(2)
• 57(3)
• 57(4)
• 57(5)
• 57(6)

• -
• -
• -
• -
• -
• -

• 37(1)
• 37(2)
• 37(3)

• 58(1)
• 58(2)
• 58(3)

• 233(1)
• 233(2)
• -

• 39(1)
• 39(2)

• 60(1), (1.1), (1.2)
• 60(2)

• 226(1)(a), (c)
• -

• 40(1)
• 40(2)
• 40(3)

• 61
• 62
• 63

• -
• 228(3)
• 235

• 41(1)
• 41(2)

• 65(1)
• 65(2)

• -
• -

In the Reasons for Decision given in the Canadian Actors Equity Association case (Decision No. 010), the Tribunal made the following observation:

[29] For a variety of legal purposes, the law has had to distinguish between employees who work under contracts of service and contractors who perform work for another person on an independent basis in the context of contracts for service. A number of tests have been developed by the courts to determine when independent contractor status exists. The common feature of these tests is that each particular situation must be looked at on its own merits and that no blanket determination can be made on the basis of job title alone. [Emphasis added]

“...[T]he collective agreement between the UDA and TM does not apply to Mr. Denis Niquette because in the context of the arrangement existing between his employer, CFGL, and TM, he is not an independent contractor vis-à-vis TM.”

In order to determine whether an artist is covered under a scale agreement, the Tribunal must focus on the “duties” carried out by the artist in light of the intended scope of the certification order. As the Tribunal noted in Application for certification filed by the Association des réalisateurs et réalisatrices du Québec et al., 1997 CAPPRT 024, at para. 40, “[...] a job title does not necessarily determine the sector to which that person belongs; one must examine the duties that the person actually performs.[...]”. Accordingly, it would be inappropriate to conclude that masters of ceremonies are not covered under Equity’s certification order on the basis that it is not one of the enumerated functions or job titles.

• 42(1)
• 42(2)

• 66(1)
• 66(2)

• 234
• -

• 43(1)
• 43(2)

• 67(4)
• 67(5)

• -
• -

• 47(1)
• 47(2)(a)
• 47(2)(b)
• 47(2)(c)

• 91(1)
• 91(2)(a)
• 91(2)(b), (c)
• 91(2)(d)

• 198(1)
• 198(2)(a)
• 198(2)(d)
• 198(2)(e)

• 49(1)
• 49(2)

• 93(1)
• 93(2)

• 198(3)
• 198(4)

• 50(a)(i)
• 50(a)(ii)
• 50(a)(iii)
• 50(a)(iv)
• 50(a)(v)
• 50(a)(vi)
• 50(b)
• 50(c)
• 50(d)
• 50(e)
• 50(f)

• 94(3)(a)(i)
• 94(3)(a)(iii)
• 94(3)(a)(iv)
• 94(3)(a)(v)
• 94(3)(a)(vi)
• 94(3)(a)(ii)
• 94(3)(b)
• 94(3)(c)
• 94(3)(e)
• 94(3)(f)
• 94(3)(g)

• 186(2)(a)(i)
• 186(2)(a)(ii)
• -
• 186(2)(a)(iii)
• 186(2)(a)(iv)
• -
• 186(2)(b)
• -
• 186(2)(c)
• -
• -

• 51(a)
• 51(b)
• 51(c)
• 51(d)
• 51(e)
• 51(f)
• 51(g)

• 95(a), (b)
• -
• 95(e)
• 95(g)
• 95(h)
• -
• 95(i)

• -
• -
• -
• 188(c)
• 188(d)
• -
• 188(e)

Accordingly, without a nexus to a federal undertaking, it is our view that Parliament is without authority to enact legislation governing the relationship between unions and their members. This reasoning would apply equally to artists’ associations and their members under the Act as Parliament cannot legislate over matters that do not come within its constitutional jurisdiction.

By not explicitly requiring a nexus to a federal undertaking, section 51(d) of the Act appears to exceed Parliament’s jurisdiction in the field of labour relations. The principles of statutory interpretation, specifically the constitutional law doctrine of “reading down” are of assistance in interpreting this provision.

[...]

The requirement that a complainant pursuant to section 51(d) have a nexus to a producer under federal jurisdiction is consistent with the above-noted doctrine. This requirement is further supported by paragraph 6(2)(a) of the Act which states that Part II of the Act, dealing with professional relations, applies to federal government departments and agencies and broadcasting undertakings under the jurisdiction of the Canadian Radio-television and Telecommunications Commission.

Section 51(d) provides the Tribunal with the power to oversee the internal affairs of artists’ associations; however, this power is restricted in that it can be invoked only for the purpose of ensuring that artists’ associations do not act in a “discriminatory manner” when applying their rules of discipline to one of their members.

• 53(1)
• 53(2)
• 53(3)
• 53(4)
• 53(5)

• 97(1)
• 97(2)
• 97(4), 16(o.1)
• 98(1), 15.1(1)
• 98(4)

• 190(1)
• 190(2), (3)
• 40(2), 191(2)
• -
• 191(3)

On the one hand, it is clear that a party may file a complaint alleging a failure to bargain in good faith at any time in the bargaining process if it believes that the circumstances so justify. It is not necessary to wait until the parties have reached an impasse. On the other hand, a party alleging bad faith on the part of the other party may also file a complaint, even after the conduct complained of has ceased.

The duty to bargain in good faith is a duty that is ongoing and a breach of this duty usually relates to general behaviour and not necessarily to any event in particular. Consequently, the approach taken in the case of Brewster Transport, supra, in calculating the time limit seems to us to be appropriate. The period of six months will accordingly start to run from the point when the alleged conduct ceased.

• 54(1)(a)
• 54(1)(b)
• 54(1)(c)
• 54(1)(d)
• 54(1)(e)
• 54(1)(f)
• 54(2)

• 99(1)(a)
• 99(1)(b)
• 99(1)(c)
• 99(1)(d)
• 99(1)(e)
• 99(1)(f)
• 99(2)

• 192(1)(a)
• 192(1)(d)
• 192(1)(b)
• 192(1)(c)
• 192(1)(e)
• 192(1)(f)
• -

• 55(1)
• 55(2)

• -
• -

• -
• -

Section 55 of the Status of the Artist Act applies to co-productions in which at least one of the producers is a producer within the meaning of that Act (i.e., those enumerated in paragraphs 6(2)(a)(i) and (ii) of the Act). In such cases, section 55 requires that the co-producers designate which of them is to be considered the actual “engager” of the artists. This designation takes on greatest significance when one of the co-producers is not a producer under the jurisdiction of the Status of the Artist Act. If the co-producers designate the federal jurisdiction producer to be the engager of the artists, then the co-production will be governed by the terms of the Act. In this regard, section 55 essentially provides for an arrangement as between the co-producers regarding the legislative jurisdiction that will apply to the co-production. As such, it does not and should not have any effect on the obligations and liabilities that each assumes towards the artists and the Canadian Actors’ Equity Association pursuant to the terms of the Canadian Theatre Agreement.

• 57(1)
• 57(2)
• 57(3)

• 101(1), (2)
• 100(1)
• 102

• 200, 201, 202, 203, 204
• 202(2)
• -

• 58(1)
• 58(2)
• 58(3)

• 103(1)
• 103(2)
• -

• 202(3)
• 202(3)
• -

• 60(1)
• 60(2)

• 112(1)
• 112(2)

• -
• -