Date: 20130606
Docket: A-421-12
Citation: 2013 FCA 150
CORAM: NOËL
J.A.
PELLETIER
J.A.
GAUTHIER
J.A.
BETWEEN:
OZCAN ILASLAN
Applicant
and
HOSPITALITY & SERVICE TRADES UNION, LOCAL 261
AND THE NATIONAL ARTS CENTRE
CORPORATION
Respondents
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Mr.
Ozcan Ilaslan (the applicant) seeks judicial review of the interlocutory
decision of the Chairperson of the Canadian Industrial Relations Board (the
Board) denying his request for an order compelling his union, the Hospitality
& Service Trades Union, Local 261 (the Union), and his employer, the
National Arts Centre Corporation (the NAC, and collectively, the respondents)
to disclose documents which, in his view, are in their possession. This request
for a production order was made in the context of a request for reconsideration
of an earlier board decision dismissing Mr. Ilaslan’s complaint that his union
had failed in its duty of fair representation. The request for a production
order was denied because the Board found it untimely.
[2]
In
his Notice of Application and Memorandum of fact and law, the applicant alleges
that the decision should be quashed because he was not given a proper
opportunity to make submissions on the timeliness of his request. In his view,
this constitutes a breach of the Board’s duty to act fairly. In that respect,
he relies on subsection 16(f.1) of the Canada Labour Code, R.S.C., 1985
c. L-2, Part I (the Code), which gives general power to the Board to issue
summons in respect of information or documents that may be relevant to a matter
before it. This provision expressly provides that the power to compel should be
exercised after providing the parties the opportunity to make representations.
[3]
As
always, when such allegations are made, context is important. For the reasons
that follow, I have not been persuaded that the Board acted unfairly. In any
event, even assuming that it did, I am not satisfied that this breach could
have any impact whatsoever, given that the documents sought were either: i)
already in the applicant’s possession; ii) did not exist; or iii) were
irrelevant to the issues before the Board.
Proceedings before the Board
[4]
On
February 1, 2011, the applicant filed a complaint with the Board pursuant to
section 37 of the Code alleging that the Union had breached its duty to
represent him fairly by failing to bring his termination grievance to
arbitration. However, as the grievance effectively proceeded to arbitration,
the Board suspended the proceedings in the complaint until such time as the Arbitrator
issued his decision.
[5]
On
March 6, 2012, the Arbitrator dismissed the termination grievance on the basis
that the applicant had missed work on the 26th and 27th of
June and the 1st of July 2009 for no good reason. Given the
applicant’s previous disciplinary record, the Arbitrator confirmed that
termination was an appropriate penalty. More specifically, the Arbitrator found
that the applicant had no bona fide reason in thinking that he needed the
approval of the NAC’s Human Resources Manager, Ms. Robyn Bouchard, before
returning to work (applicant’s record, page 34). Even if the Arbitrator were to
accept the evidence of the applicant that numerous messages were left and were
unanswered, in the circumstances and given his past history and behaviour, the
Arbitrator found that it was unreasonable for the applicant not to send an
email, phone another member of management or, as he did in the past, present
himself at the workplace to find someone in management with whom he might talk.
[6]
As
a result of this decision, the Union sought a dismissal of the applicant’s
complaint with the Board. However, the applicant’s counsel submitted that the
complaint should not be dismissed given that the Union had failed to provide the
applicant with fair representation during the arbitration. Among other things,
the applicant argued that the Union had not seriously tried to obtain the
needed objective evidence to support his testimony and, because of this, his
credibility was ruined (see paragraphs 14 and 21(b) of the submissions of the
applicant’s counsel before the Board, dated April 12, 2012, applicant’s record,
pages 109-111). In this respect, he submitted that telephone records constituted
critical evidence that would have been determinative of his case.
[7]
On
May 1, 2012, the applicant filed a reply to the submissions of the Union in
which he expressly sets out his view that the Union had the NAC telephone
records as well as Mr. Peter Freitas’ records (Banquet Manager at the NAC, and
the applicant’s immediate supervisor). In his comments at paragraph 5.6, he
states that:
…the fact is that NAC phone
records do list time of call and not much else. But these records nevertheless
corroborate the time at which I called NAC from my cell phone.
[8]
The
applicant also deals at length with his communications with Ms. Martel, the Health
and Safety officer at the NAC, and what she says in the statement that was
filed before the Arbitrator and the Board.
[9]
In
accordance with section 16.1 of the Code, the complaint was decided without
holding an oral hearing, the Board being satisfied that there was no need for
one. On May 17, 2012, the Board dismissed the applicant’s complaint that his
union had failed to fairly represent him in his termination grievance. Although
the Board notes that the new telephone records obtained by the applicant did
not constitute conclusive evidence in respect of the two issues for which they
were presented (to confirm that the applicant had called Ms. Bouchard and left
messages), this was not the basis on which it dismissed the complaint.
[10]
The
Board’s primary ground for dismissing the complaint was that the Union had satisfied its duty of fair representation when it negotiated a settlement of the
termination grievance according to which the applicant would be reinstated and
any reference to his dismissal would be removed
from his record (applicant’s record, page 42). The Board noted that by
rejecting the settlement,
the applicant was ultimately the author of his own misfortune. The Board went on to say that its role, in a duty of fair representation
complaint, was not to undertake a microscopic examination of how a union
conducts the case before an arbitrator.
[11]
The
Board was satisfied that the issues raised by the applicant would not likely
have caused the Arbitrator to reach a different conclusion (applicant’s record,
page 43, last paragraph) It notes that the said Arbitrator did not accept that
the applicant needed to contact Ms. Bouchard before coming in to work, and, as
mentioned above, that he was not satisfied that the applicant had made enough
efforts to contact management (applicant’s record, page 44).
[12]
The
Applicant did not seek judicial review of this decision. Rather, on June 7,
2012, pursuant to section 18 of the Code, the applicant through his counsel
filed what purported to be an application for reconsideration of the May 17,
2012 decision on the ground that “New facts are expected to become available,
but this was not possible before the statutory deadline for filing an
Application for Reconsideration. The new data will establish that the Applicant
did in fact leave messages with his employer at the pertinent time and was not
in a position to work without further contact with the employer” (applicant’s
record, page 157).
[13]
On
July 9, 2012, the Board advised the applicant that his application for reconsideration
was incomplete. However, it granted him until September 4, 2012 to perfect it.
[14]
On
August 29, 2012, the applicant himself filed a request with the Board for a
further extension of time to perfect his application and an order compelling
the respondents to produce the following documents:
a. The record of Mr.
Peter Freitas’ cell phone records during the month of June 2009.
b. The record of incoming
calls to Robyn Bouchard’s extension for the months of June-July 2009.
c. The detailed notes of
the voice mail messages that the applicant left on Robyn Bouchard’s answering
machine that were recorded on CD.
d. Ms. Nathalie Martel’s
written statement which was taken by employer Counsel Georges Rontoris on the 8th
of February 2012.
[15]
The
applicant’s request was detailed and set out a number of representations as to
what efforts he and his counsel made to obtain the records from the respondents
since January 2012. It included an email sent to the Union’s counsel on August
20, 2012, which appears to have been the only step taken to obtain the records
since March/April 2012.
[16]
On
August 30, counsel for the Union responded by communicating that:
i)
Mr.
Freitas’ cell phone records for the relevant period (June 24-July 1, 2009) had
already been provided to the applicant’s counsel on April 12, 2012 (a new copy
was also included).
ii)
There
was no statement of Ms. Martel other than the one already filed with the Board.
iii)
They
have no record of the NAC’s incoming calls nor does Ms. Bouchard have any notes
or recording of the alleged voicemail messages for the relevant period.
[17]
The
applicant did not file a reply and, on September 4, the Board issued its
decision on the basis of the written submissions received (per section 16.1 of
the Code) denying the applicant’s request as untimely. It nevertheless granted him
an extra ten days to perfect his application.
[18]
On
September 19, having received no further communication from the applicant, the
Board advised the parties that the file was closed.
Application of Judicial Review
[19]
During
the hearing before this Court, the applicant, acting on his own behalf, explained
that his goal is to establish that he did not lie when he said that he had left
several messages for Ms. Bouchard. He also wants to prove that his employer had
his medical certificate as early as June 16, 2009. In his view, this would
clear his name, and would have resulted in a different decision by the
Arbitrator.
[20]
However,
these facts are not what is at issue before us. The only question before us is
whether the Board failed to give the applicant an opportunity to make
representations before it issued its decision on September 4, 2012. Then, if
there was indeed a breach of the duty to act fairly, this Court must determine
whether, as argued by the respondents, the outcome was in any event inevitable.
[21]
There
is no doubt that the Board was entitled to decide the August 29 request without
an oral hearing (section 16.1 of the Code). Further, considering that his
original complaint was decided without an oral hearing, the applicant could not
reasonably expect that one would be held to determine this interlocutory
matter.
[22]
Pursuant
to subsection 16(f.1) of the Code, the Board cannot issue an order compelling
the production of documents or information without giving an opportunity to the
parties to make submissions in that respect. Since no production order was
made, subsection 16(f.1) was not engaged. Had it been so, this section would still
not require an oral hearing. In any case, Mr. Ilaslan, as the party affected, did
have the opportunity to make written representations. That is all that was
required.
[23]
As
mentioned earlier, the applicant made detailed submissions on his request. The
fact that he knew of the existence of all the documentation requested in August
2012, well before the proceeding leading to the May 17, 2012 decision, made the
timeliness of his request an issue.
[24]
At
the hearing, the applicant confirmed that he had nothing else to add in respect
of efforts made to obtain this documentation after the filing of his incomplete
application for reconsideration. He could not explain what else he could have
added in respect of the timeliness of his request. In fact, apart from raising
this breach of procedural fairness, the applicant does not contest the
reasonableness of the Board’s decision that his request was untimely.
[25]
In
such circumstances, I simply cannot conclude that the Board acted unfairly
before issuing its September 4, 2012 decision.
[26]
That
said and in any event, it is clear in my view that the applicant’s request for production
was bound to fail. As mentioned, the applicant already had Ms. Freitas’ records
for the period of June 24, 2009-July 1, 2009 in his possession. He stated that
the record of the NAC did not contain anything more than the time of the phone call.
He also accepted that there was no evidence whatsoever that Ms. Bouchard or the
respondents had any notes or recording of any messages he allegedly left on her
voicemail prior to the date of his termination. Finally, he acknowledged that
the Board already had before it the only statement made by Ms. Martel.
[27]
Given
the basis of the Board’s decision on May 17, 2013, what occurred on June 16, 2009
with respect to the medical certificate or after his termination is irrelevant.
[28]
In
the circumstances, even assuming that there was a technical breach of
procedural fairness, this is a case where the result was inevitable and this
Court should dismiss the application (Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at paragraph 51). I thus propose to dismiss the application with
costs.
"Johanne
Gauthier"
“I
agree.
Marc Noël J.A.”
“I
agree.
J.D. Denis Pelletier J.A.”
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