Docket: T-612-11
Citation: 2012 FC 419
Ottawa, Ontario, April 12, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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CANADA POST CORPORATION
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and
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CANADIAN UNION OF POSTAL WORKERS
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision by an Occupational Health and
Safety Tribunal Canada Appeals Officer who upheld a direction by a Health and
Safety Officer that the applicant is in contravention of the Canada Labour
Code, RSC, 1985, c L-2. For the reasons that follow, the application is
dismissed.
Facts
[2]
The
facts in this case are straight-forward. In 2004, through negotiations by
their bargaining agent, the Canadian Union of Post Workers (CUPW), Rural and
Suburban Mail Carriers (RSMCs) became employees of the Canada Post Corporation
(CPC). Prior to this collective agreement, RSMCs were under contract to CPC
and therefore not employees of CPC. Until they became CPC employees, the RSMCs
were precluded from forming a trade union pursuant to the provisions of the Canada
Post Corporation Act, RSC, 1985, c C-10) (CPC Act) and the Canada Labour
Code, RSC, 1985, c L-2 (Code).
[3]
In
March 2009, CUPW took the position that CPC was in contravention of
s.134.1(3)(a) of the Code, in that it had formed more than one committee in
respect of its employee-employer policy committee without the agreement of the
RSMCs, as represented by CUPW. Stated another way, CUPW was of the position
that the RSMCs were not considered a part of the Urban Postal Operations (UPO)
National Joint Health and Safety Committee (UPO-NJHSC) by CPC and were
represented by another separate committee.
[4]
Following
an investigation, and his attendance at a Rural and Suburban Mail Carriers-National
Joint Health and Safety Committee (RSMC-NJHSC) meeting, a direction was issued
by Bruce McKeigan, Health and Safety Officer (HSO). The HSO determined that
CPC was in contravention of the Code, as contended by CUPW. The HSO wrote in
his December 17, 2009 direction: “The employer has established more than one
policy committee without the agreement of the trade union.” The direction
instructed CPC to terminate the contravention by January 15, 2010.
[5]
The
HSO’s direction was appealed to the Occupational Health and Safety Tribunal Canada by CPC on
January 14, 2010 and affirmed in a decision by Michael Wiwchar, Appeals Officer
(Appeals Officer) on March 15, 2011. On February 18, 2010 a stay of the
direction was issued until a decision on the merits of the appeal was taken. The
applicant, CPC, seeks, in this Court, judicial review of the Appeals Officer’s
decision rendered on March 15, 2011.
Standard of Review and
Issue
[6]
The
applicant has presented two issues to the Court in this judicial review
application:
a. Did the
Appeals Officer err in law by giving an interpretation to section 134.1 of the
Code that it cannot reasonably bear?
b. Did the
Appeals Officer fail to observe a principle of procedural fairness that he was
required observe?
[7]
Counsel
for both the applicant and respondent agreed that Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 has made it clear that reasonableness is the
appropriate standard of review to be applied with respect to mixed question of
fact and law and that correctness is the appropriate standard of review to be
applied with respect to questions of law arising out of administrative
decisions.
[8]
The
second issue in this case, however, ordinarily attracts a correctness standard
of review as procedural fairness questions are questions of law.
[9]
The
issue in this case, therefore, is whether the decision by the Appeals Officer
affirming the direction of the HSO that the employer, CPC, had established more
than one policy committee without the agreement of the trade union, in contravention
of section 134.1(3)(a), can withstand scrutiny under a reasonableness standard
of review. I find that it can withstand such scrutiny.
[10]
Turning
to the second issue, the applicant contends that the Appeals Officer breached
the principles of procedural fairness by violating the rule in Browne v Dunn ((1893),
6 R. 67 (HL)).
[11]
I
shall address each of the applicant’s issues in turn. I find the Appeals
Officer’s decision to be reasonable on the basis of the first issue and I find
no breach of procedural fairness with respect to the conduct of the hearing.
Analysis
The Appeals
Officer did not err in law with his interpretation of section 134.1 of the Code
and finding that no agreement had been reached
[12]
The
applicant argues that the Appeals Officer erred by giving an interpretation to
section 134.1 of the Code that it cannot reasonably bear. Section 134.1(3)(a)
of the Code provides as follows:
134.1 (1) For the purposes of
addressing health and safety matters that apply to the work, undertaking or
business of an employer, every employer who normally employs directly three
hundred or more employees shall establish a policy health and safety
committee and, subject to section 135.1, select and appoint its members.
[…]
(3) An employer may establish more than
one policy committee with the agreement of
(a) the trade union, if any,
representing the employees; and
(b) the
employees, in the case of employees not represented by a trade union.
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134.1 (1) L’employeur qui compte
habituellement trois cents employés directs ou plus constitue un comité
d’orientation chargé d’examiner les questions qui concernent l’entreprise de
l’employeur en matière de santé et de sécurité; il en choisit et nomme les
membres sous réserve de l’article 135.1.
[…]
(3) L’employeur peut constituer
plusieurs comités d’orientation avec l’accord :
a) d’une part, de tout syndicat
représentant les employés visés;
b) d’autre part, des
employés visés qui ne sont pas représentés par un syndicat.
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[13]
As
described and generally accepted by the Appeals Officer, the HSO made the
following key findings:
a. The term
“agreement” referred to in s. 134.1(3) of the Code may take different forms and
is not restricted to a collective bargaining agreement;
b. No other
agreement between the parties was presented to the HSO; therefore the HSO
referred to the collective bargaining agreement between CPC and the UPO
employee group represented by CUPW;
c. The existence
of two separate collective bargaining agreements, was not, in and of itself,
evidence of an agreement between the parties to establish a separate policy
committee. The RMSC employee group collective bargaining agreement did not
contain provisions for the establishment of either a separate policy committee
as CPC negotiated in collective bargaining agreements with three other employee
groups, nor did it include provisions for the establishment of separate work
place (local) health and safety committees or representatives; and
d. Finally,
there was no evidence of an agreement by CUPW through documents or viva voce
evidence, to establish more that one policy committee.
[14]
The
Appeals Officer’s finding reflected that of the HSO. He affirmed the HSO’s
direction on the appeal:
…I find from the evidence presented to me
that CPC violated para. 134.l(3)(a) of the Code when they established the RSMC-NJHSC
for the RSMC employee group without obtaining the agreement of their trade
union, CUPW.
…I confirm the direction issued by HSO
McKeigan on December 17, 2009. The employer will now have until April 15, 2011,
to comply with the direction.
[15]
The
Appeals Officer continued:
The Code under s. 134.1 does not require
that any agreement that is reached between the employer and the trade union be
reduced to writing or be included in a collective agreement. The collective
agreement for the RSMC employee group does not specifically reference the
establishment of two distinct policy committees.
The interpretation of the word
“agreement” in s. 134.1(3) is vital to this issue however it is not defined in
the Code. As a result, I will use a common dictionary definition of the word
which reads as follows:
Agreement: 1. the act of agreeing; the holding
of the same opinion (reached agreement) 2. mutual understanding 3.
an agreement between parties as to a course of action etc. b a document
outlining such an agreement. 4. the condition of having the same number,
gender, case, person. 5. a state of being harmonious.
The above definition of the term
“agreement” indicates clearly that it is not limited to something written. There
are other aspects within the definition that obviously could demonstrate an
agreement between the parties. Since there was no express written agreement in
the present case, I will take other requisites of the definition into
consideration.
Therefore, I will determine whether or
not the parties exhibited the following aspects of the term’s definition,
notably, did they:
a) hold the same opinion?; and
b) mutually understand each other?
…the new RSMC collective agreement, under
article 24 addressed the issue of health and safety committees but not the
issue of a policy committee. The entire realm of health and safety was covered
in four short paragraphs within the collective agreement. The first paragraph
is all encompassing stating that the provisions of the Code shall apply to
employees. What follows is wording about health and safety committees but
nothing about the establishment of a policy or a national committee for this
employee group.
It is clear to me that the negotiations
in 2003 were very intense and that the negotiators had a huge mandate to
undertake under extreme time restraints. I’m convinced that the parties did not
see eye to eye regarding the issue of establishing a policy committee these
employees. Given the importance of entering into that “first” collective
agreement versus one article about a policy committee, I can understand that
only items that were crystal clear were explicitly written into the agreement
at that time.
Consequently, I find that the omission of
an article similar to the one in the UPO collective agreement about policy or
national committees was indicative of a clear gap on the issue between the lead
negotiators. An opportunity for precise and unambiguous commitment on the issue
existed but, for whatever reason, it was not spelled out. It is apparent to me
that CPC and CUPW did not have the same opinion nor did they come to a mutual
understanding on the issue of the establishment of a policy committee for the
RSMC employee group. What transpired is that the employer and the trade union
agreed to disagree.
[Emphasis in Appeal Officer’s decision].
[16]
No
quarrel can be taken with respect to the Appeals Officer’s approach to the
ambit of the word “agreement” in section 134.1 of the Code, or as to the
evidentiary criteria of factors that might confirm or deny its existence. This
is squarely within the scope of specialized experts, and thus attracts a
standard of reasonableness, even though it is a statutory provision: Smith
v Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160.
[17]
The
respondent’s point is that more than one policy committee existed before the
RSMCs were admitted into CPC as employees, and that a separate policy
committee has been established for them once they became CPC employees. Despite
the fact that the respondent points to evidence that shows these multiple
committees were in existence, it must be clear and obvious from the evidence that
a separate committee had been established for the RMSCs by agreement.
[18]
The
applicant nevertheless argues that the RMSCs were part of a “general” policy committee.
The only evidence that such a “general” policy committee existed was, in the
words of the Appeals Officer, suggested by CPC’s counsel, not by CPC itself. The
Appeals Officer found that the RSMC-NJHSC which HSO McKeigan met with on June
3, 2009 could not be mistaken for a “general” policy committee. These are
findings of fact which this Court will not disturb.
[19]
It
therefore appeared to the two levels of decision-makers below that CPC had
organized a number of policy committees sometimes in direct and sometimes not
in direct proportion to the number of bargaining agents. On this point, I am
in agreement with the respondent who argues:
While Canada Post appears to be critical
of the fact that its policy committees are effectively organized by bargaining
agent affiliation, this structure is not the result of Mr Wiwchar’s
interpretation, but rather the result of Canada Post’s historical approach to the
organization of its policy committees. As found by Mr. Wiwchar, Canada Post did
not maintain a “general” policy committee, and had established four (4) policy
committees, each organized by bargaining agent, before the RSMCs attained
employee status.
[Emphasis added]
[20]
On
this first issue, I therefore find that the Appeals Officer’s finding that the
applicant, CPC, established a policy committee without the agreement of CUPW,
as a mixed question of fact and law, reasonable.
The
Appeals Officer did not fail to observe a principle of procedural fairness
[21]
The
applicant also takes issue with the following finding of the Appeals Officer
cited earlier in these reasons:
It is clear to me that the negotiations
in 2003 were very intense and that the negotiators had a huge mandate to
undertake under extreme time restraints. I’m convinced that the parties did not
see eye to eye regarding the issue of establishing a policy committee
these employees. Given the importance of entering into that “first” collective
agreement versus one article about a policy committee, I can understand that
only items that were crystal clear were explicitly written into the agreement
at that time.
Consequently, I find that the omission of
an article similar to the one in the UPO collective agreement about policy or
national committees was indicative of a clear gap on the issue between the lead
negotiators. An opportunity for precise and unambiguous commitment on the issue
existed but, for whatever reason, it was not spelled out. It is apparent to me
that CPC and CUPW did not have the same opinion nor did they come to a mutual
understanding on the issue of the establishment of a policy committee for the
RSMC employee group. What transpired is that the employer and the trade union
agreed to disagree.
[22]
The
applicant argues that the Appeals Officer violated the rule in Brown v Dunne
when he allowed the testimony of a CPC witness to be “impeached” by the
testimony of a CUPW witness.
[23]
The
applicant called Mr. Steve Matjanec, General Manager, and who was, at the time
of the appeal, Senior Lead for the delivery for the Postal Transformation Project
for Canada Post as a witness. The respondent called Mr. George Floresco, 3rd
National Vice President of CUPW and the trade union’s chief negotiator for the
first RSMC employee group’s collective agreement, and Ms Gayle Bossenberry, 1st
National Vice President of CUPW, and national health and safety representative.
[24]
Mr.
Matjanec testified, in the words of the Appeals Officer, that “on the outcome
of the segment of the negotiations with CUPW on the matter of combining the UPO
and RSMC into a single policy committee, [the] position he communicated
throughout the negotiations was that the RSMC employee group was distinct, and
required specific terms and conditions of employment [and] gave evidence about
CPC’s other policy committees.”
[25]
Counsel
for the applicant argued that the evidence given by Mr. Floresco, CUPW’s witness,
which contradicted the testimony of the CPC witness, was “vague at best” and,
on the key point of whether the RSMCs as represented by CUPW, had backed away
from their position of including the RSMC employee group in an all encompassing
bargaining unit.
[26]
The
applicant raises two objections to the Appeals Officer’s decision to allow Mr.
Floresco to testify on these matters:
Counsel for CUPW did not cross-examine
Mr. Matjanec on [whether the negotiations between the parties had yielded an
agreement], nor did he advise Mr. Matjanec that a witness for the Union, George
Floresco, Third National Vice President of CUPW and Lead Negotiator for CUPW,
would challenge his assertions on [this topic].
When called to give evidence by CUPW, Mr.
Floresco testified that policy health and safety committee(s) had not been
discussed by the parties at all.
Canada Post objected to Mr. Floresco’s
testimony on the basis that counsel for CUPW had violated the Rule in Browne
and Dunn when he deprived Mr. Matjanec of the opportunity to clarify his
own evidence or specifically comment on the anticipated evidence of Mr.
Floresco with respect to policy committee structure.
[27]
The
respondent argues that application of the rule is discretionary and in this
particular case: counsel for CUPW clearly put the contradictory evidence before
Canada Post’s witness, Mr. Matjanec; the evidence at issue was not “on an
essential matter”; and, it was obvious from the nature of the case that the
evidence was disputed.
[28]
There
are four reasons why the applicant’s argument on a breach of the rule in Browne
v Dunne fails. First, there is no doubt that the question of whether or
not there was an agreement was essential, if not the essential matter. Secondly,
Mr. Matjanec’s credibility was not being “impeached” by documentary evidence
introduced via a subsequent witness (a procedure which would have offended the
rule).
[29]
The
fact of the matter is that the Appeals Officer wrote in his decision:
I find that Messrs Matjanec and
Floresco’s contradictory testimonies relating to their recollections and
intentions surrounding the discussions that took place prior to the reaching of
the collective agreement will not assist me in deciding whether or not an
agreement was reached and as such will not impact my decision. Therefore, I
do not need to address the admissibility issue regarding their evidence because
it will not be given any weight.
[Emphasis added]
[30]
Thus,
even if it can be said that the rule in Brown v Dunne had been violated
in the present case, the Appeals Officer clearly stated that this testimony
would not be given any weight.
[31]
Third,
the general statements of the Appeals officer that CPC and CUPW did not “see
eye to eye,” did not have a “mutual understanding,” did not “did not have the
same opinion,” and that there was a “clear gap” between them, and that they
“agreed to disagree” are all findings of fact clearly open to the Appeals
Officer, none of which were affected by the Browne v Dunne rule. The
Officer, reasonably, noted that when agreement is reached in this type of
forum, it is habitually memorialized.
[32]
Fourth,
the fact that a subsequent witness provides contradictory oral testimony does
not in and of itself trigger the Brown v Dunne rule. Even if it did,
the Federal Court of Appeal held in Green v Canada (Treasury Board -
Transport Canada), 2000 CarswellNat 488,
50 CCEL (2d) 19, 254 NR 48, 179 FTR 318 at paras. 25-32:
Browne v Dunn stands for a rule of evidence that where
the credibility of a witness is to be impeached by evidence that contradicts
his testimony, the witness must be given a fair opportunity to explain the
discrepancy. This is a rule grounded in fairness and reason. Its application
depends upon the circumstances of the case. The trier of fact is always
entitled to disbelieve or reject any evidence that is presented….
[33]
Here,
the two individuals testified as to what transpired at the meetings between
labour and management. Findings of fact were made. A review of the examinations
and cross-examinations of both witnesses indicates that there was no doubt that
what was in issue was what transpired at the meeting. The examinations were
wide-ranging. No one can be said to have taken by surprise.
[34]
For
the foregoing reasons, the application is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. The respondent shall have its costs.
"Donald
J. Rennie"