Date: 20010601
Docket: A-574-00
Neutral citation: 2001 FCA 184
CORAM: SHARLOW J.A.
BETWEEN:
MARITIME-ONTARIO FREIGHT LINES LIMITED
Applicant
- and
TEAMSTERS LOCAL UNION 938
Respondent
Dealt with in writing without appearance of parties
ORDER delivered at Ottawa, Ontario, the 1st day of June 2001
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20010601
Docket: A-574-00
Neutral citation: 2001 FCA 184
CORAM: SHARLOW J.A.
BETWEEN:
MARITIME-ONTARIO FREIGHT LINES LIMITED
Applicant
- and
TEAMSTERS LOCAL UNION 938
Respondent
REASONS FOR ORDER
SHARLOW J.A.
The applicant Maritime-Ontario Freight Lines Limited has commenced an application for judicial review of the decision of the Canada Industrial Relations Board certifying Teamsters Local Union 938 as the bargaining agent for a unit of contractors.
[2] Maritime-Ontario argues among other things that the Board erred in certifying Local 938 without first taking steps to determine whether a majority of the employees in the proposed unit wished to have the respondent represent them.
[3] In reasons issued by the Board after the application for judicial review had been commenced, the Board said this:
The Board carefully examined the information submitted by the Applicant [Local 938] to determine whether there existed the majority support within the unit as required by section 28 of the Code. The Board found it had been appropriately confirmed that the majority of the employees within the bargaining unit sought wished to have the Applicant represent them as their bargaining agent.
[4] The Board did not state what steps were taken, if any, to confirm the existence of the majority referred to. Apparently no vote was taken.
[5] In response to this application for judicial review, Local 938 filed the affidavit of Patrick Murdock sworn on February 7, 2001. He asserts in his affidavit that:
When the Respondent [Local 938] believed it had the requisite support under the Code, it made its application for certification.
[6] Maritime-Ontario cross-examined Mr. Murdock on his affidavit, having served a Direction to Attend that specifically required Mr. Murdock to bring with him and produce at the cross-examination "any evidence that was filed with the Canadian Industrial Relations Board (or copies thereof) or which is in the power, control or possession of the Respondent and which constitutes evidence in support of the Union's belief ... that it had the requisite support of employees under the Code to justify its application for certification."
[7] Counsel for Local 938 says that if Canada-Maritime had simply requested this information from the Board, the Board would have refused to produce it because of Regulation 25 of the Canada Industrial Relations Board Regulations, 1992, which reads as follows:
The Board shall not disclose to anyone evidence that could, in the Board's opinion, reveal membership in a trade union, opposition to the certification of a trade union, or the wish of any employee to be represented or not to be represented by a trade union, unless the Board considers that such disclosure would be in furtherance of the objectives of the Act.
[9] Counsel for Maritime-Ontario says that he understands the confidentiality concerns of Local 938 with respect to this material, but he correctly points out that Local 938 has made no request under Rule 230 or 94(2) to seek relief from production. It appears also that Local 938 has made no application for a protective order under Rule 151, despite the fact that counsel for Maritime-Ontario had indicated that he would consent to such an order.
[10] Mr. Murdoch was asked in cross-examination to produce the requested documents. Counsel for Local 938 advised him not to do so on the basis that the documents are privileged, confidential and non-compellable, and he refused to do so.
[11] Counsel for Maritime-Ontario now seeks an order that Mr. Murdock is in breach of Rule 94, an order compelling answers to his questions and production of the documents.
[12] It is argued by Maritime-Ontario that some of the answers given by Mr. Murdock in cross-examination of Mr. Murdock gives cause to doubt the reliability or genuineness of some of the union memberships that are presumed to form part of the basis for Local 938's certification application. I am not prepared to express any view on that, nor do I think it necessary to do so.
[13] The issue in the application for judicial review is whether the Board erred in issuing the certification order. Any argument that might be made as to the adequacy of the evidence of union support must be based on the evidence that was before the Board. The most appropriate way to obtain that evidence is to request it from the Board under Rule 317. If the Board produces the evidence, Maritime-Ontario has no further complaint.
[14] If the Board objects to producing the evidence, an objection may be made under Rule 318(2). The submissions made by the Board under Rule 318 in support of its objection to the production of the documents may include, in the alternative, a motion for a confidentiality order under Rule 151. A motion under Rule 151 may also be made by Local 938 in any submission it may make in the course of the Rule 318 proceedings.
[15] The motions of Maritime-Ontario are denied. If Maritime-Ontario chooses to request the documents from the Board under Rule 317, it will submit its request to the Board on or before June 11, 2001 and will concurrently serve Local 938 with a copy of its request.
"K. Sharlow"
J.A.
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