Date:
20120301
Docket:
A-268-10
Citation: 2012 FCA 69
CORAM: NADON
J.A.
SHARLOW
J.A.
MAINVILLE
J.A.
BETWEEN:
EDUARDO BUENAVENTURA JR., UMER BUTT,
DAMAN CHAWLA, FABIAN CHUNG, WILLIAM COS, ZHI YU DUAN, KARL EATON, JIAN DONG
FENG, GARETH FRASER, PUKHRAJ GOHALWAR, CHANG HE, LIANG HE, BOB HOLOWENKO, JEFF
HOLTEN, GRAYDON HOOGE, HE HUANG, SUCHAT JITMAS, MATTHEW KREMSER, HORACE KWAN,
ANTHONY LAM, KEVIN LEE, JIN LIU, MARIO MATEJKA, RUSSELL METCALFE, MIKHAIL
POPOVICH-KASERES, TONY QIN,
KEN REDDING, JESSE REMPEL, JAMES RENNEBOOG, KEVIN
RODRIGUES,
TOM RUMBAL, MIKHAIL SEMESHKO, RAHAT
SHARMA, ZHE SHI, BILL SOLACZEK, JAKE SWAFFIELD, LASZLO SZOCS, CHRIS SZYMANSKI,
JOHN TANTON, FELIZARDO TORRES, SUNNY WAN, PETER WANG, KENJI WONG, RAYMOND WONG,
ERIC YEH, KYLE ZACHER
Applicants
and
TELECOMMUNICATIONS WORKERS UNION (TWU)
and TELUS COMMUNICATIONS INC.
Respondents
and
CANADA INDUSTRIAL RELATIONS BOARD
Intervener
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
During
the period relevant to this application, the applicants were apprentice
technicians and employees of Telus Communications Inc. (“Telus”) who were bound
by a collective agreement between Telus and the Telecommunications Workers
Union (the “TWU”). They submitted to the Canada Labour Relations Board a
complaint against the TWU under section 37 of the Canada Labour Code,
R.S.C. 1985, c. L-2. As the complaint was made after the statutory time limit,
they also asked the Board to extend the time limit. The Board refused to extend
the time limit, and dismissed the complaint. The complainants have applied for
judicial review of the Board’s decision. Their application is opposed by the
TWU and by Telus. The Board has exercised its right under section 22(1.1) of
the Code to make submissions. To reflect the Board’s participation, it has been
added to the style of cause as an intervener.
[2]
The
TWU, in addition to opposing the application on its merits, has submitted that
the Court should exercise its discretion to refuse to entertain the
application, or to deny the complainants a remedy, because they failed to avail
themselves of an adequate alternative remedy under the Code. That is the first
issue to be considered. If the TWU’s submission on that point is rejected, it
will be necessary to determine the merits of the complainants’ application.
[3]
For
the reasons set out below, I have concluded that this Court should consider the
complainants’ application, but that their application should be dismissed
because the Board’s refusal to extend the time limit was reasonable.
(1) Relevant
provisions of the Code
(a)
Complaints procedure
[4]
As
indicated above, the complainants are seeking a remedy from the Board for what
they allege is a breach by the TWU of section 37 of the Code. Section 37 reads
as follows:
37. A trade union or representative
of a trade union that is the bargaining agent for a bargaining unit shall not
act in a manner that is arbitrary, discriminatory or in bad faith in the
representation of any of the employees in the unit with respect to their
rights under the collective agreement that is applicable to them.
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37. Il est interdit au syndicat, ainsi
qu’à ses représentants, d’agir de manière arbitraire ou discriminatoire ou de
mauvaise foi à l’égard des employés de l’unité de négociation dans l’exercice
des droits reconnus à ceux-ci par la convention collective.
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[5]
The
procedure for complaints to the Board is set out in section 97 of the Code.
Subsection 97(1) sets out what complaints may be made, and subsection 97(2)
stipulates a 90 day time limit for making a complaint. Those provisions read in
relevant part as follows:
97. (1) Subject to subsections
(2) to (5), any person or organization may make a complaint in writing to the
Board that
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97. (1) Sous réserve des
paragraphes (2) à (5), toute personne ou organisation peut adresser au
Conseil, par écrit, une plainte reprochant :
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(a) … a trade union … has contravened or
failed to comply with … section 37 ….
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a) soit […] à un syndicat […]
d’avoir manqué ou contrevenu […] articles 37 […].
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(2) Subject to subsections (4) and (5), a complaint
pursuant to subsection (1) must be made to the Board not later than ninety
days after the date on which the complainant knew, or in the opinion of the
Board ought to have known, of the action or circumstances giving rise to the
complaint.
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(2) Sous réserve des paragraphes (4) et (5), les
plaintes prévues au paragraphe (1) doivent être présentées dans les
quatre-vingt-dix jours qui suivent la date à laquelle le plaignant a eu — ou,
selon le Conseil, aurait dû avoir — connaissance des mesures ou des
circonstances ayant donné lieu à la plainte.
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(b) The Board’s power to extend time limits
[6]
Paragraph
16 (m.1) of the Code permits the Board to extend the time for
initiating a complaint. It reads as follows:
16. The Board has, in relation to any
proceeding before it, power
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16. Le Conseil peut, dans le cadre de
toute affaire dont il connaît :
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…
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[…]
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(m.1) to extend the time limits set
out in this Part for instituting a proceeding.
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m.1) proroger les délais fixés par la
présente partie pour la présentation d’une demande.
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[7]
The
practice of the Board permits a request for an extension of time to be
submitted as part of a late filed complaint. The practice of the Board also
permits a request for an extension of time to be refused without requiring the
respondent to make submissions, and without an oral hearing.
(c) The finality of Board decisions and the exceptions
[8]
By
virtue of subsection 22(1) of the Code, decisions of the Board are final,
subject to two exceptions. One exception is expressed in the opening words of
subsection 22(1) (“subject to this Part”). That exception would include the
Board’s reconsideration power under section 18 of the Code, which reads as
follows:
18. The Board may review,
rescind, amend, alter or vary any order or decision made by it, and may
rehear any application before making an order in respect of the application.
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18. Le Conseil peut réexaminer,
annuler ou modifier ses décisions ou ordonnances et réinstruire une demande
avant de rendre une ordonnance à son sujet.
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[9]
The
other exception to the finality of Board decisions is an application for
judicial review in
accordance with the Federal Courts Act , R.S.C. 1985, c. F-7, on the
grounds referred to in paragraph 18.1(4)(a), (b) or (e) of
that Act. Neither the TWU nor Telus has suggested that the grounds for the
present application for judicial review are outside the scope of those
provisions.
(d)
Procedure for applying for reconsideration
[10]
Section
15 of the Code gives the Board the power to make regulations. Pursuant to that
power, the Board enacted the Canada Industrial Relations
Board Regulations, 2001, SOR/2001-520. Section 44 and 45 of the Regulations
deal with applications for reconsideration of Board decisions. Section 45 sets
out the application procedure (including the information required to be
included in the application, the time limits and the requirements for service
of the application and relevant documents). Section 44 deals with the grounds
for reconsideration. It reads as follows:
44. The circumstances under
which an application shall be made to the Board exercising its power of
reconsideration under section 18 of the Code include the following:
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44. Les circonstances dans
lesquelles une demande de réexamen peut être présentée au Conseil sur le
fondement du pouvoir de réexamen que lui confère l’article 18 du Code
comprennent les suivantes :
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(a) the
existence of facts that were not brought to the attention of the Board, that,
had they been known before the Board rendered the decision or order under
reconsideration, would likely have caused the Board to arrive at a different
conclusion;
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a) la survenance de faits
nouveaux qui, s’ils avaient été portés à la connaissance du Conseil avant que
celui-ci ne rende la décision ou l’ordonnance faisant l’objet d’un réexamen,
l’auraient vraisemblablement amené à une conclusion différente;
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(b) any
error of law or policy that casts serious doubt on the interpretation of the
Code by the Board;
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b) la présence d’erreurs de
droit ou de principe qui remettent véritablement en question l’interprétation
du Code donnée par le Conseil;
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(c) a
failure of the Board to respect a principle of natural justice; and
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c) le non-respect par le
Conseil d’un principe de justice naturelle;
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(d) a decision made by a Registrar under
section 3.
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d) toute décision rendue
par un greffier aux termes de l’article 3.
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[11]
According
to the Board, section 44 of the Regulations was enacted in 2001 as a
codification of the Board’s jurisprudence relating to applications for
reconsideration. It is now well established that the list in section 44 of the
permissible grounds for reconsideration is not exhaustive. That is indicated by
the use of “includes” in the opening words of section 44. More importantly, it
necessarily follows from the general principle that the Board cannot use its
power to make regulations to limit the scope of its statutory discretion. This
point is well made in ADM Agri-Industries Ltée v. Syndicate national des
employees de Les Moulins Maple Leaf (de l’Est), 2004 FCA 69, at paragraph
40 (translation):
…
We do not feel that the Board could by regulation set aside a discretion
conferred by the Code. Additionally, the fact that the Board saw fit to
identify by regulation certain circumstances giving rise to an application
for reconsideration by one party does not mean that in so doing it limited
the circumstances in which it could of its own motion reconsider its
decisions itself.
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(See also Société des arrimeurs de Québec v. Canadian Union of Public Employees,
Local 3810, 2008 FCA 237 and Canadian Union of Public Employees, local 2614 (Syndicat des débardeurs
du port de Québec) v. Société des arrimeurs de Québec inc., 2011 FCA 17.)
[12]
The
Board says that consideration is being given to repealing section 44 of the Regulations
because of its limited utility in the face of section 18 of the Code. The
Standing Joint Committee for the Scrutiny of Regulations (a Parliamentary
committee established pursuant to section 19 of the Statutory Instruments
Act, R.S.C. 1985, c. S-22) has said that section 44 of the Regulations
serves no legislative purpose.
(e) The Board’s standing in this Court
[13]
The
Board’s participation in an application for judicial review of one of its
decisions is permitted by subsection 22(1.1) of the Code, which reads as
follows:
22. (1.1) The Board has standing to
appear in proceedings referred to in subsection (1) for the purpose of making
submissions regarding the standard of review to be used with respect to
decisions of the Board and the Board’s jurisdiction, policies and procedures.
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22. (1.1) Le Conseil a qualité pour
comparaître dans les procédures visées au paragraphe (1) pour présenter ses
observations à l’égard de la norme de contrôle judiciaire applicable à ses
décisions ou à l’égard de sa compétence, de ses procédures et de ses
politiques.
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(2) Facts
[14]
According
to a collective agreement in force between the TWU and Telus from November 20,
2005 to November 19, 2010, a wage step plan was provided for apprentice
technicians (including the complainants) so that they would receive wage
increases upon completion of certain stages of the apprenticeship program. In
or about February of 2008, the TWU filed individual grievances concerning
retropay allegedly owed by Telus to apprentice technicians in connection with
the wage step plan. The TWU subsequently filed a policy grievance regarding the
same issue.
[15]
On
June 5, 2009, the TWU and Telus entered into an agreement settling the policy
grievances. The agreement provided for future wage increases for all apprentice
technicians, but retropay was stipulated for only 49 named apprentice
technicians. Approximately 250 apprentice technicians, including the
complainants, were not named and therefore were not entitled to retropay under
the settlement agreement. All individual grievances, including those initiated
by or on behalf of the complainants, were dismissed or discontinued. As a
result, the complainants were left with no recourse against Telus in respect of
their claims for retropay.
[16]
On
June 17, 2009, a Telus official told all apprentice technicians that they would
receive retropay under the settlement agreement. That information was
incorrect. On July 9, 2009, an official of the TWU correctly told some
complainants that they would not receive retropay. The receipt of that
information marked the beginning of the 90 day period stipulated in subsection
97(2) for the making of any complaint to the Board about the settlement
agreement.
[17]
In
July of 2009, three of the complainants formed a steering committee to consider
what action might be open to apprentice technicians who were not entitled to
retropay under the settlement agreement. Between July of 2009 and April of
2010, the steering committee took steps to try to determine the nature of their
claims for retropay, compile documents, and identify and locate other
apprentice technicians who were not entitled to retropay. In April of 2010 they
retained counsel, who quickly took steps to initiate a section 37 complaint and
to seek an extension of time.
[18]
The
Board did not require the TWU to file submissions in response to the complaint,
and did not convene an oral hearing. In a decision dated June 29, 2010, the
Board refused the request for an extension of time, and gave written reasons
for its decision (2010 CIRB 526). The Board’s analysis reads as follows:
16 Section 97(2) of the Code
contains a 90-day time limit for the filing of unfair labour practice complaints:
97.(2) Subject to subsections (4) and (5), a
complaint pursuant to subsection (1) must be made to the Board not later than
ninety days after the date on which the complainant knew, or in the opinion
of the
Board
ought to have known, of the action or circumstances giving rise to the
complaint.
17 Prior
to 1999, the Board had no ability to extend this time limit, though the Board
always had the discretion to determine when complainants "knew, or ...
ought to have known" that they could file a complaint.
18 With the amendments to the Code
effective January 1, 1999, the Legislator added section 16(m.1) in order to
give the Board the discretion to extend time limits such as those applying to
section 37 complaints:
16. The
Board has, in relation to any proceeding before it, power
…
(m.1) to
extend the time limits set out in this Part for instituting a proceeding.
19 The Board will not automatically
relieve a party from compliance with the 90-day time limit for the filing of
an unfair labour practice complaint. The Legislator has always emphasized
that labour relations matters must be brought to the Board forthwith.
Potential respondents are entitled to know whether they need to preserve
evidence and otherwise prepare for a complaint under the Code.
20 While it may appear unfair that
laypeople need to act quickly in bringing labour relations complaints
forward, section 97(2) applies equally to trade unions and employers.
21 The Board will not exercise its
discretion under section 16(m.1) so as to render illusory the Legislator's
intent to oblige parties to file their labour relations complaints
expeditiously.
22 Nonetheless, the Board will consider
extending the time limits in compelling situations, such as if a
complainant's health prevented the filing of a timely complaint: Louise
Galarneau, 2003 CIRB 239. Generally, the Board will consider the length
of the delay and the justification for it.
23 In this case, Mr. Torres knew, or ought
to have known, following correspondence from the TWU and the telephone conversation
on July 9, 2009, that a final decision on his entitlement to retropay had
been made. The 90-day time limit would have expired on October 10, 2009.
24 The complaint was filed more than six
months after the expiration of that time limit.
25 While Mr. Torres and the complainants
may in good faith have thought it preferable to file a single complaint in
order to include as many complainants as possible, that is not the type of
justification that will convince the Board to exercise its discretion under section
16(m.1) to excuse the nine months which passed between the start of the
limitation period and the filing of the complaint.
26 Had the Board received multiple
complaints within the applicable time limit, the Board could have easily
consolidated them given the similarity of the facts. Similarly, it could have
suggested taking a representative case forward, given the similarity in the
facts, in order to determine the outcome of all the cases.
27 As a result, the Board declines to
extend the Code's 90-day time limit set out in section 97(2) of the Code.
The complaint is dismissed.
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[19]
The
complainants did not ask the Board to exercise its reconsideration power. They
commenced an application for judicial review in this Court, seeking an order
setting aside the Board’s decision and remitting their complaint to the Board
for consideration on the merits, or alternatively requiring the Board to
reconsider the request for an extension of time.
(3) Discussion
(a) Grounds
for the application for judicial review, and the standard of review
[20]
The
broad grounds stated in the notice of application for judicial review were
narrowed in the complainants’ memorandum of fact and law, and further narrowed
at the hearing. At the outset the parties did not agree on the applicable standard
of review, but by the time of the hearing all parties agreed that the standard
of review is reasonableness. I agree that reasonableness is the appropriate
standard of review because the decision sought to be reviewed is the exercise
of a discretionary power (see Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9, at paragraph 53).
[21]
The
complainants’ challenge to the Board’s decision is based entirely on their
submission that the Board’s decision not to extend the time for initiating the
complaint is unreasonable. The TWU and Telus take the contrary position.
However, before discussing that debate, it is necessary to consider the
preliminary issue raised by the TWU, which is whether this Court should
exercise its discretion to refuse to entertain this application, or to deny the
complainants a remedy, because they failed to pursue an adequate alternative
remedy.
(b) Whether the complainants had an adequate alternative
remedy
[22]
The
TWU submits that the right of the complainants to ask the Board to exercise the
reconsideration power granted to it under section 18 of the Code is an adequate
alternative remedy. The Board disagrees because its reconsideration process is
not a statutory appeal process or a functional equivalent. The applicants adopt
the Board’s position.
[23]
The
Board’s written submissions were filed only four days before the date of the
hearing. The TWU addressed the Board’s submissions orally, but was also given
the opportunity to submit further written submissions on this issue, which it has
done. The complainants were also given the right to file submissions in
response, which they have done.
[24]
The
TWU’s position is based in part on the unquestionable proposition that a court
has the discretion to refuse to grant an administrative law remedy to an
applicant for judicial review who fails to pursue an adequate alternative
remedy. The TWU also relies on a line of cases that provide guidance as to the
factors that may be considered by a court in determining whether a particular
statutory appeal process is an adequate alternative remedy: Harelkin v.
University of Regina, [1979] 2 S.C.R. 561, Canadian Pacific Ltd. v.
Matsqui Indian Band, [1995] 1 S.C.R. 3, and Nancy Green’s Cahilty Lodge
Ltd. v. Thompson Nicola (Regional District), [1996] B.C.J. No. 547
(B.C.S.C.). However, none of these cases address a situation that is remotely
like this case. In my view, it would take a considerable stretch to read them
as authority for the proposition that the reconsideration power in section 18
of the Code is an adequate alternative remedy.
[25]
In
Harelkin, a faculty committee required a student to discontinue his
studies. The legislation (the University of Regina Act, 1974, 1973-74 (Sask.), c. 119)
provided for an appeal to a committee of the university council. The student
appealed to that committee without success. The legislation provided for a
further appeal to a committee of the senate of the university. The student did
not appeal to the senate committee. Instead, he filed an application for
judicial review. The Supreme Court of Canada (a 4 to 3 majority) held that the
student should be denied a remedy on judicial review because he had not availed
himself of his right to appeal to the senate committee, which was an adequate
alternative remedy for a number of reasons. First, the appeal procedure was
fair in the sense that the student would have a sufficient right to present
evidence (including new evidence) and be heard. Second, the senate committee
had the authority to set aside the decision of the university council, consider
the matter de novo, and render a decision on the merits. Third, the
appeal process was more convenient, less costly and more expeditious than
judicial review, both for the student and the university.
[26]
Canadian
Pacific v. Matsqui Indian Band involved applications for judicial review
of property tax assessments issued by two First Nations bands. The issue in
each case was whether the property sought to be taxed, a rail line that crossed
a reserve and a right of way over the railway line on which fibre optic cables
had been laid, was “land in the reserve”, which was the statutory basis for the
tax. The First Nations’ property tax by-laws provided for appeals to boards
they had established, and an appeal to the Federal Court on questions of law. The
applications for judicial review were struck by the Federal Court on the basis
that the statutory appeal process was an adequate alternative remedy. That
decision was reversed by the Federal Court of Appeal. The Supreme Court of
Canada upheld the decision of the Federal Court of Appeal (by a 5 to 4
majority).
[27]
Although
the five judges in the majority reached the same conclusion, they did so for
three different reasons. Two of the five concluded that although some factors
pointed to the conclusion that the statutory appeal process was an adequate
alternative remedy, the appeal tribunal lacked institutional independence which
was a factor that was sufficient by itself to determine that the appeal process
was not an adequate alternative remedy. Two of the five judges thought that the
appeal tribunal did not have the jurisdiction to determine the key legal
question, which was whether certain property was in the reserve. One judge
thought that the Federal Court should have determined that key legal question
by way of judicial review because the Federal Court was the final point of the
statutory appeal scheme and would have been required to determine that key
legal question in any event.
[28]
In
the Cahilty Lodge case, a builder applied to the British Columbia
Supreme Court for judicial review of the refusal of a municipal building
inspector to issue a building permit for a hotel because the planned mezzanines
violated a height restriction in the provincial building code, and also for a
second refusal when the builder reapplied for a permit, invoking an
“equivalents” provision in the building code. The governing statute established
a Building Code Appeal Board with the jurisdiction to determine any question of
interpretation or application of the building code. The Court held that a
reference to the Board was an adequate alternative remedy with respect to the
equivalents question, and dismissed that part of the builder’s application for
judicial review. However, the Court held that a reference to the Board was not
an adequate alternative remedy with respect to the height question because a
previous decision of the Board on the same question had rejected the builder’s
argument, so that a reference to the Board on that point would have been
inconvenient and futile. The Court determined the height question against the
builder because the decision of the building inspector was held not to be
patently unreasonable.
[29]
In
all of these cases, the issue was whether a statutory appeal process was an
adequate alternative remedy. In all of them, the applicant had a statutory
right to appeal a decision to an appellate body that was not the same as the
initial decision maker. As indicated above, none of them can be taken as
authority for the proposition that an adequate alternative remedy can be found
in the right of a party to ask an initial decision maker to reconsider its
decision pursuant to section 18 of the Code or an analogous provision.
[30]
In
determining whether a statutory process is an adequate alternative remedy, one
important factor is the manner in which the power exercisable under the
statutory process is likely to be exercised given the burden of the initial
decision. For example, a statutory right of appeal may be a robust remedy if
the appeal must be heard by a body that is separate from the initial decision
maker and the mandate of the appeal body is to consider the matter de novo.
In such a case it could be said that the burden of the initial decision is
small. On the other hand, an experienced decision maker with a power to reconsider
its own decisions will often be inclined to exercise that power relatively
sparingly, so that the burden of the initial decision likely will be
substantial. In my view, that would tend to defeat any argument that a
reconsideration power is an adequate alternative remedy.
[31]
The
reconsideration power of the Board falls well into the last mentioned category.
The Board itself asserts that its jurisprudence shows a consistent adherence to
the general principle that Board decisions are final and that the Board’s
reconsideration power is to be exercised with restraint, so that
reconsideration is the exception rather than the norm: Canadian National
Railways, [1975] 1 Can LRBR 327; Canadian Broadcasting Corporation,
92 CLLC 16,006; 591992 B.C. Ltd., 2001 CIRB 140; Wholesale Delivery
Service (1972) Ltd.; 2002 CIRB 204; Brink’s Canada Limited, 2002
CIRB 204; Ted Kies, 2008 CIRB 413; British Columbia Maritime
Employers Association and DP World (Canada) Inc., 2008 CIRB 424; D’Anglo
(Cynthia Jay), 2009 CIRB 460; 3329003 Canada Inc. and Trentway-Wagar
Inc., 2010 CIRB 521.
[32]
That
there is a difference in this context between a statutory appeal process and a
statutory power of reconsideration is also evident from the comments of Justice
LeBel and Justice Binnie, writing for the majority and minority, respectively,
of the Supreme Court of Canada in Ellis-Don Ltd. v. Ontario ((Labour
Relations Board), [2001] 1 S.C.R. 221. Justice LeBel wrote this at
paragraph 57 (my emphasis):
57. There was also some discussion in
this Court about the failure of the appellant to ask for reconsideration.
However, even the Board conceded that in the circumstances, reconsideration did not constitute an absolute
prerequisite to judicial review. In the present
case, it might have been a good tactical move that would perhaps have
elicited some information from the Board about its consultation process, but the
principles of judicial review did not require the use or exhaustion of this
particular remedy. Of course, in some cases, failure to seek reconsideration
might be a factor to be weighed by superior courts when determining whether
to grant a remedy in an application for judicial review.
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And Justice Binnie wrote
this at paragraph 94:
94.
The Divisional Court also faulted the appellant for its failure to seek a
reconsideration by the Board under s. 114(1) of the Act. Apparently the court
was not pleased with appellant counsel's somewhat triumphal rejoinder that
the Board had been "caught ... with [its] hand in the cookie jar"
and he was not disposed to give it an opportunity to extricate itself. While
a motion for reconsideration was an option, it was not equivalent to an
internal appeal for purposes of an "exhaustion of administrative
remedies" argument. The Board's position advanced with ingenuity and
vigour in these proceedings no doubt reflects what the panel would have said
on a reconsideration, namely the assertion that [IWA v.
Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282] sanctioned the
procedure adopted in this case.
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[33]
I
take from the comments of Justice LeBel that when a court is considering
whether to exercise its discretion to grant an administrative law remedy, a
failure to seek reconsideration is not a bar to an application for judicial
review, although it may be a factor that is relevant in determining whether to
grant an administrative law remedy. Justice Binnie does not disagree, adding
that reconsideration is not equivalent to an internal appeal.
[34]
The
TWU did not cite any case in which a failure to seek reconsideration under section
18 of the Code would preclude an administrative law remedy. The Board itself
brought to the Court’s attention the only such case of which it was aware: Murphy
v. Canadian Telecommunications Employees’ Association, 2010 FCA 113. The
Board submitted that Murphy is wrongly decided and should not be
followed. The TWU argued that this Court is bound by Murphy.
[35]
Like
the present case, Murphy involved a complaint to the Board under section
37 of the Code. The complaint was based on the fact that a certain letter
agreement between the union and the employer had been excluded from the
collective agreement. The letter agreement established a joint employer/union
committee with a mandate to review and reclassify various positions based on
their characteristics and job descriptions. Because the letter agreement was
excluded from the collective agreement, any grievance resulting from the
reclassification of positions reviewed by the committee was not subject to
arbitration.
[36]
The
work of the joint committee caused a pay reduction for Mr. Murphy, who
complained to the Board under section 37 of the Code. First, Mr. Murphy
complained that his union had unlawfully deprived its members of the grievance
procedure. The Board rejected this aspect of the complaint on the basis of its
reasoning in two other prior similar complaints. On judicial review, this Court
found that the decision of the Board in respect of this ground of complaint was
reasonable.
[37]
Second,
Mr. Murphy complained that his union had not adequately disclosed information
to its members prior to the ratification of the collective agreement. The union
conceded that the Board had not explicitly dealt with this aspect of the
complaint, although it argued that the Board had dealt with it implicitly. On
judicial review, this Court was inclined to agree that the Board had implicitly
dealt with this aspect of the complaint. However, the Court also noted (at
paragraph 7 of Murphy) that “where the applicant’s concern is
that the Board failed to address an aspect of the complaint that was put to it,
the applicant should have availed himself of the administrative remedy of
reconsideration that was available under section 18 of the Code.”
[38]
The
TWU argues that the principle underlying the second point in Murphy is
that the statutory power of reconsideration in section 18 of the Code is such a
part of the Board’s administration process that the failure to invoke it is
necessarily fatal to any application for judicial review of a Board’s decision.
I do not read Murphy as establishing any such proposition. The Board
itself asserts that its statutory reconsideration power is not intended to be a
statutory appeal procedure and that failure to seek reconsideration is not an
impediment to judicial review.
[39]
The
rationale for the Court’s decision on the second point in Murphy is not
stated, but I infer that it is based on two assumptions. First, where a Board
decision is challenged by way of an application for judicial review, the best
remedy the applicant can hope for is an order requiring the Board to
reconsider. Second, if the Board has in fact overlooked one aspect of a
complaint, the Board may well correct the oversight on request, even without
being ordered to do so. Seen in that light, Murphy is an example of the
kind of situation to which Justice LeBel adverted in Ellis-Don; the
failure of Mr. Murphy to seek reconsideration was given significant weight in
determining that no administrative law remedy was warranted in the particular
circumstances of that case.
[40]
The
facts of this case are quite unlike the facts in Murphy. Here, the
Board’s own jurisprudence, as summarized in its submissions, suggests that in
the present case the Board is unlikely to reconsider a decision to refuse an
extension of time.
[41]
For
these reasons, I conclude that the Court would not be justified in dismissing
this application for judicial review, or refusing to grant an administrative
law remedy, merely because the complainants failed to ask the Board to exercise
its reconsideration power.
(c) Whether the decision of the Board to refuse the
extension of time was reasonable
[42]
I
turn now to the second main point in this application, which is a review of the
merits of the Board’s decision. The question is whether it was reasonable for
the Board to refuse to extend the time limit for the complaints. I conclude for
the following reasons that the answer is yes.
[43]
As
I read the Board’s reasons, its refusal to extend the time was based on its
consideration of four general factors in light of the undisputed facts. I
summarize the factors as follows: (1) The statutory time limit is a matter of
law and is justified by policy considerations, namely, to encourage parties to
act expeditiously in order to promote certainty and avoid prejudice to the
other parties. (2) The Board should not exercise its discretion to extend time
limits automatically because that would undermine the policy justification for
the existence of the time limit. (3) On the other hand, the Board should
exercise its discretion in compelling situations, after taking into account the
reasons for the delay and its duration. (4) Generally, laypersons (which I take
to include individuals unrepresented by counsel) should be held to the same
standard as unions and employers.
[44]
The
Board also considered specifically the length of the delay (9 months), and its
cause. The Board concluded that the main cause was the honest but mistaken
belief of the complainants that the Board would prefer a single, multi-party
complaint filed late to a multitude of individual complaints filed earlier.
However, the Board noted that it has ample procedural means for dealing with
large numbers of related complaints.
[45]
The
complainants do not suggest that the Board misunderstood the reason for the
delay. However, they argue that it was unreasonable for the Board not to give
special consideration to the fact that the complainants were not represented
for most of those 9 months. They point out that their relative inexperience
represented difficult hurdles, both in assembling the information they believed
would be necessary to support their complaint, and in appreciating the Board’s
procedures and the ways in which a multiplicity of complaints could best be
managed.
[46]
A
decision is reasonable if it is sufficiently explained and it falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008
SCC 9, at paragraph 47. In my view,
the record discloses nothing unreasonable about the Board’s decision not to
extend the time limit in this case.
[47]
It
is true that the Board took an unsympathetic stance toward the difficulties
faced by the complainants as they attempted to navigate unfamiliar territory
and to ensure that their complaint, once made, could be handled efficiently.
However, these difficult circumstances gave the complainants no legal right to
have the Board exercise its discretion in their favour. In my view, the Board’s
decision to refuse the extension was a decision that fell within the range of
possible, acceptable outcomes that are defensible in respect of the facts and
the law, and thus was reasonable. In my view, the application for judicial
review should be dismissed.
(5) Conclusion
[48]
I
would dismiss the application for judicial review. As between the complainants
and the TWU, I would award no costs given the divided success. Telus sought
costs in its memorandum of fact and law, but its submissions added nothing
substantive to the submissions of the TWU and its request was withdrawn at the
hearing. The Board did not seek costs.
“K.
Sharlow”
“I
agree
M. Nadon J.A.”
“I
agree
Robert M.
Mainville J.A.”