Date:
20080123
Docket:
T-643-07
Citation:
2008 FC 81
[ENGLISH TRANSLATION]
Montréal, Quebec, on January 23, 2008
PRESENT:
Richard Morneau, Esq., Prothonotary
BETWEEN:
MARITIME
EMPLOYERS ASSOCIATION
Applicant
and
HER MAJESTY THE QUEEN OF CANADA
(HUMAN RESOURCES AND
SOCIAL DEVELOPMENT CANADA)
and
SYNDICAT DES DÉBARDEURS S.C.F.P.
SECTION LOCALE 375
and
ASSOCIATION INTERNATIONALE DES
DÉBARDEURS,
ILA, SECTION LOCALE
1657
and
LOGISTEC STEVEDORING
INC.
and
MONTREAL GATEWAY
TERMINALS PARTNERSHIP
and
TERMONT MONTRÉAL INC.
and
EMPIRE STEVEDORING CO.
LTD.
and
CERESCORP INC.
Respondents
REASONS
FOR ORDER AND ORDER
[1]
This
is a motion by the respondent, the Attorney General of Canada, to strike
several other respondents from the style of cause on the grounds that they essentially
espouse the views and remedies sought by the applicant (MEA). Thus, according
to the Attorney General of Canada, these respondents, LOGISTEC STEVEDORING
INC., MONTREAL GATEWAY TERMINALS PARTNERSHIP, TERMONT MONTRÉAL INC., EMPIRE
STEVEDORING CO. LTD. and CERESCORP INC. (the respondents), are not genuine
respondents in this case because their interests are not different or opposed
to those of the MEA.
[2]
In
the alternative, if these respondents retain their standing in this case, the
Attorney General of Canada requests that some of the conclusions raised by
these respondents in their factum on the merits be struck, since these
conclusions are different from those sought by the MEA in its application for
judicial review (the MEA’s application), and the respondents themselves did not
initiate an application for judicial review.
Background
[3]
It
appears that the respondents are all stevedoring companies located in the Port
of Montréal where they operate loading and unloading terminals. For this
purpose they employ auditors and longshoremen.
[4]
The
respondents are all members of the MEA. The MEA sees itself as an association
of longshoremen employers working in the Port of Montréal and would be named as
the employer representative for the purposes of Part I of the Canada
Labour Code, R.S.C., 1985, c. L-2, (the Code), by decision of the Canada
Industrial Relations Board under section 34 of the Code.
[5]
Within
the meaning of the Code, the MEA would therefore constitute an employer
representative deemed to be an employer empowered to bargain collectively on
behalf of employers who are truly active in longshoring at the Port of
Montréal, namely the respondents. The MEA itself would therefore not perform
any stevedoring or freight forwarding activities.
[6]
On
April 18, 2007, the MEA filed its motion to challenge what it sees as a unique
new approach taken by the Health and Safety Division of Human Resources and
Social Development Canada (HRSDC) (the federal authorities), which considers
that it, the MEA, and not the respondents, is the employer within the meaning
of Part II of the Code.
[7]
According
to the MEA, longshoremen at the other ports in Canada are correctly named as
employers with respect to Part II of the Code, which was apparently the case at
the Port of Montréal prior to adoption of the new approach mentioned above.
[8]
Through
its application, the MEA is essentially seeking not to be named as an employer
for purposes of Part II of the Code.
[9]
On
September 17, 2007, the respondents and the respondent, the Attorney
General of Canada, served and filed their respective factums.
[10]
In
this regard, pursuant to their factum, the respondents are asking this Court to
grant the orders sought by the MEA.
[11]
In
addition, the respondents also formulated conclusions in their factum, that is,
conclusions 73(b) and (c), which the Attorney General of Canada sees as their
own and go beyond what the MEA has requested. These conclusions read as
follows:
a)
Declare
void HRSDC’s pledge of voluntary compliance provided to the applicant on
April 4, 2007;
b)
Declare
that the respondents are the longshoremen’s employers assigned to their
respective operations, for the purposes of Part II of the Canada Labour
Code.
Analysis
[12]
Paragraph
303(1)(a) of the Federal Courts Rules (the Rules) requires that
the applicant for judicial review name as a respondent every person directly
affected by the order sought in the application. As mentioned in Richards
Packaging Inc. v. Canada (Attorney General), 2006 FC 257, at
paragraph 13 (Richards Packaging):
[13] (…)
In other words, a person who will be directly affected by the outcome of the
decision to be rendered on an application shall be named as a respondent.
[13]
Paragraph 303(1)(a)
of the Rules reads as follows:
|
303.(1) Respondents
– Subject to sub-section (2), an applicant shall name as a respondent every
person
|
303.(1) Défendeurs
– Sous réserve du paragraphe 2, le demandeur désigne à titre de défendeur :
|
|
(a) directly
affected by the order sought in the application, other than a tribunal in
respect of which the application is brought; or
|
a) toute personne
directement touchée par l’ordonnance recherchée, autre que l’office fédéral
visé par la demande;
|
[14]
Here,
there is no doubt that the decision to be rendered on the MEA’s application
will directly affect the respondents, as they argue in paragraph 24 of
their written submissions:
(…)
the decision will determine who, among the respondents and the applicant, will
be responsible for ensuring the health and safety of longshoremen within the
Port of Montréal.
[15]
Because
the MEA initiated the application, it had no choice. It had to include the
respondents in the style of cause under the terms of paragraph 303(1)(a)
of the Rules. It is also difficult to conclude in this case that, in April
2007, the respondents could have presented themselves as applicants in an
application for judicial review of a decision that was not addressed to them.
[16]
In
addition, there are no grounds here to draw this conclusion based on the case
law where this paragraph could have been viewed in conjunction with Rules 104
or 109 since in this matter (unlike cases such as Richards Packaging and
NuPharm Inc. v. Canada (Attorney General) (2001), 14 C.P.R.
(4th) 280 and the decision reviewed in it, Merck & Co. v. Canada
(Attorney General) (1993), 48 C.P.R. (3d) 54) the respondents are already
included in the style of cause and therefore do not seek to be included by
motion.
[17]
Finally,
it is true that the final outcome may be perplexing in that the respondents are
seeking to have the MEA’s application granted. However, it is clear here that
the Attorney General of Canada intends to fully exercise his role as respondent
and that, based on the merits, the Court will understand the dynamics
surrounding the respondents’ presence in this capacity.
[18]
The
principal remedy sought by the Attorney General of Canada, the striking of the
respondents and their factum, will therefore be dismissed.
[19]
With
respect to the conclusions of the same respondents in paragraph 73(b) and
(c) of their factum (supra, paragraph [11]), I agree with the Attorney
General of Canada that as respondents in an application for judicial review,
these respondents cannot directly or indirectly seek orders against the
Attorney General of Canada that are not claimed by the only party authorized to
do so, here the MEA (in this regard, see the Federal Court of Appeal’s decision
GKO Engineering v. Canada, 2001 FCA 73, at paragraph 3, and
the application of this decision in Canada (Attorney General) v. Pépin,
2006 FC 950, at paragraphs 29 and 30).
[20]
Although
it may be admitted that the respondents’ conclusions 73(b) and (c) in some way
complement in practice conclusions 84(a) and (b) formulated by the MEA in its
factum on the merits, said conclusions 73(b) and (c) do, however, add aspects
or components that are not explicitly claimed by the MEA. In that sense, it is
therefore not for the respondents in an application for judicial review to seek
or provide any conclusions that the MEA itself does not claim.
[21]
It
will therefore be ordered that paragraphs 73(b) and (c) shown on page 74
be considered struck from the respondents’ factum on the merits.
[22]
Since
success is divided on this motion, no costs will be awarded.
ORDER
The
principal remedy sought by the Attorney General of Canada, the striking of the
respondents and their factum, is dismissed.
It
is also ordered that paragraphs 73(b) and (c) shown on page 74 be
considered struck from the respondents’ factum on the merits.
Since
success is divided on this motion, no costs are awarded.
“Richard Morneau”
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