Date: 20110131
Docket: A-197-10
Citation: 2011 FCA 32
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
MARIO
VEILLETTE
Applicant
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
and
AIR CANADA INC.
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Preliminary issue and issues
[1]
This is an
application for judicial review of a decision of the Canada Industrial
Relations Board (Board) dated April 22, 2010 (2010 CIRB
LD 2331).
[2]
Without
notifying this Court, the applicant, Mr. Veillette, applied to the Board
for reconsideration of its decision, as provided by section 18 of the Canada
Labour Code (Part 1 – Industrial Relations), R.S.C. 1985, c. L‑2.
The Board allowed the application for reconsideration. In a second decision (2010
CIRB LD 2466) dated December 1, 2010, and brought to this Court’s
attention only a few days before the hearing of the application for judicial
review of the first decision, the Board rejected the applicant’s arguments.
[3]
In a
Direction to the parties dated December 9, 2010, the Court inquired about
the applicant’s intentions regarding his application for judicial review
scheduled to be heard on Monday, December 13, 2010, in light of this
Court’s decision in Vidéotron Télécom Ltée v. Communications, Energy and
Paperworkers Union of Canada, 2005 FCA 90. According to that decision, the
applicant must challenge both decisions, especially if the decision on the
application for reconsideration affirms the first and if quashing the first
would not eliminate the second.
[4]
An
exchange of correspondence ensued between the parties and the Court. This
exchange established that the applicant, who was advised by legal aid, wanted
to proceed with the hearing of both decisions on December 13, 2010. It was
understood that the respondent, the International Association of Machinists and
Aerospace Workers (IAMAW), objected to proceeding in this way, even though, as
the applicant noted, section 55 of the Federal Courts Rules allows
the Court, in special circumstances, to vary a rule or dispense with compliance
with a rule.
[5]
As a
matter of fairness for the parties and to avoid an adjournment and additional
costs and delays, the members of the panel deciding the issue carefully
reviewed both decisions of the Board and the applicant’s grounds of attack.
They noted and submitted to the parties at the hearing that all of the grounds
of attack stated in the application for judicial review and those raised in the
application for reconsideration essentially overlap.
[6]
In fact,
in both cases, the applicant complains that
a)
the Board
breached the rules of natural justice and procedural fairness in failing to
hold a public oral hearing with witnesses, even though the credibility of
witnesses had to be gauged;
b)
the Board
breached the rules of natural justice and procedural fairness in deeming an
expedited arbitration procedure to be valid, without any valid legal grounds;
c)
the Board,
confronted with conflicting evidence regarding the arbitration hearing held in
English, had given preference to the union’s version without any acceptable
explanation; and
d)
the Board
shifted his union’s burden of proof onto him with respect to obtaining a
medical assessment.
[7]
Following
discussions and a proposal by this Court, the parties agreed on the overlap and
the fact that this Court’s decision to intervene on these issues in the context
of the application for judicial review of the first decision would determine
the outcome of the second decision made further to the application for
reconsideration. In other words, both decisions of the Board would either stand
or fall.
[8]
An
agreement was also reached with the parties to allow them to make written
submissions on the Board’s second decision. To accommodate the parties faced
with certain time constraints, the applicant was given until January 14,
2011, to produce a short memorandum of no more than 10 pages. The
respondents had until January 21, 2011, to produce a memorandum subject to
the same length restriction.
[9]
The
parties agreed to this approach, which was suggested by the panel members and
which had been dictated by the unique circumstances of the case. These
circumstances included the applicant’s grounds of attack in the reconsideration
and judicial review proceedings, the very short time between the date of the
second decision further to the reconsideration and the date of the hearing of
the application for judicial review, the fact that this Court’s decision would
determine the fate of the Board’s two decisions, the fact that the applicant
still had time to challenge the second decision and that the hearing of the
application for judicial review would then have had to be adjourned and,
lastly, the fact that the parties were ready to proceed, not to mention the
fact that, in strict accordance with the tradition of the Federal Court of
Appeal, the panel had properly instructed itself as to the facts and sources of
the issues and was prepared for the hearing.
Analysis of the applicant’s arguments and
the Board’s decisions
[10]
At the
hearing, counsel for the applicant filed submissions in which the wording of
the issues differs from what is found in the notice of application for judicial
review and the memorandum of fact and law:
[translation]
A.
Did the
Board, in its decision dated April 22, 2010, act beyond its jurisdiction
and/or fail to observe a principle of natural justice that it was required by
law to observe in concluding that the applicant had not been forced to accept
the expedited arbitration procedure?
B.
Did the
Board, in its decision dated April 22, 2010, act beyond its jurisdiction
and/or fail to observe a principle of natural justice that it was required by
law to observe in concluding that the applicant had been unable to obtain a
medical assessment to refute that of the employer?
C.
Did the
Board, in its decision dated April 22, 2010, act beyond its jurisdiction
and/or fail to observe a principle of natural justice that it was required by
law to observe in concluding that the applicant had made no request whatsoever
related to the fact that the hearing was held in English?
[11]
I will
instead refer to the grounds as worded in the notice of application for
judicial review and combine the two for the purposes of the analysis.
Failure to hold a public oral hearing
with witnesses
[12]
In both
the first and the second decision, the Board was of the opinion that it could
decide the matter on the basis of the written documentation. Section 16.1
of the Code authorizes it to proceed thus, even when issues of credibility
arise: see Nadeau v. United Steelworkers of America, 2009 FCA 100. I am
not satisfied that, under the circumstances, the Court has been given any good
reason for interfering with this aspect of the Board’s decisions.
Expedited
arbitration procedure deemed valid and preference given to the union’s
conflicting version without reasonable explanation
[13]
In its
second decision, the Board noted “that the reasons given in LD 2331 for
dismissing the applicant’s submissions and accepting those of the respondent
regarding the expedited arbitration process and the language at arbitration
were insufficient”: see the second decision, at pages 10 to 11. It
then proceeded to justify that conclusion of the Board in its first decision.
[14]
The
applicant submits in his supplementary memorandum that, in reconsideration, the
Board acknowledged that it had breached the principles of procedural fairness
and natural justice in its first decision. He equates inadequate reasons for
the decision with a breach of these principles. He therefore submits that [translation] “the decision then became
invalid, and the Board could not speculate on the fact that the outcome would
have been the same regardless of these breaches”: see Supplementary Memorandum
at paragraph 9.
[15]
With
respect, I see nothing in the Board’s reconsideration decision that amounts to
an admission that it breached the principles of procedural fairness or natural
justice.
[16]
Moreover,
one cannot equate the content of these principles with that of the duty to
provide adequate reasons for a decision and thereby conclude that the decision
is necessarily invalid. Even a breach of the principles of natural justice or
procedural fairness does not automatically invalidate the decision, as is established
in case law that is more recent than that on which the appellant relies: see Canada
(Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41; Mobil
Oil Canada Ltd. v. Canada‑Newfoundland (Offshore Petroleum Board),
[1994] 1 S.C.R. 202, at page 228; Halifax Employers Ass. Inc. v.
Council of ILA Locals for the Port of Halifax, 2006 FCA 82; Société des
arrimeurs de Québec v. Canadian Union of Public Employees, Local 3810,
2008 FCA 237; Palonek v. Canada (Minister of National Revenue – M.N.R.),
2007 FCA 281; and Cartier v. Canada (Attorney General), 2002 FCA 384.
[17]
Weak or
inadequate reasons for a decision can be remedied, as the Board did, in the
context of a reconsideration of its first decision, to the extent that this
first decision was and remains the right decision.
[18]
At the end
of the reconsideration and on the basis of its previous decisions, the Board
found that the expedited arbitration procedure was an acceptable grievance
process and that it was up to the union, not the employee, to choose the
appropriate procedure in a given case: see page 11 of the second decision.
This was the procedure in effect while Air Canada was subject to the
Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36,
given the large number of grievances. The two parties, that is, the employer
and the union, agreed that the arbitration procedure developed and implemented with
Arbitrator Teplitsky allowed for speedy and effective settlement or arbitration
of disputes. They agreed that this procedure would continue to apply.
[19]
The Board
also found that the union had reasonable grounds for deciding to use the
expedited procedure, considering the weak evidence that it had in the
applicant’s favour and the employer’s incriminating evidence. Given all of the
circumstances, Board found that the union, in deciding thus, had not breached
its duty of fair representation: see page 12 of the second decision.
[20]
In the
appellant’s opinion, he had a say in the grievance process against his
employer’s decision, thus implying that he could tell his union how to conduct
proceedings: see paragraphs 10 and 11 of his supplementary
memorandum. He alleges that the union set itself up as a judge of his behaviour
and found that he had been at fault for having performed massages: ibidem,
at paragraphs 13 to 15.
[21]
Again, in
my view, the appellant’s claims do not reflect the actual proceedings and
surrounding facts. Faced with medical and testimonial evidence that weighed heavily against the appellant, a matter that I will discuss below, the
union had to make tactical choices to minimize the impact of such evidence. The
appellant now disagrees with these choices, but, as the Board determined, this
does not mean that the union breached its duty of fair representation.
[22]
As for the
language at the oral hearing in reconsideration, the Board reviewed the emails
between the parties and was satisfied that the appellant did not raise this
question until after the hearing. It also upheld a finding in the Board’s first
decision. Lastly, it reiterated that the union has carriage of the grievance
and must, in handling the grievance, act in a manner that is not arbitrary,
discriminatory or in bad faith, which, in the Board’s opinion, it did.
[23]
On this
subject, the Board wrote the following at page 12 of its second decision:
In
regard to the use of English at the arbitration hearing held on April 1,
2009, the Board was correct in making the following determination in
LD 2331:
In addition, nothing in the complaint
before the Board shows that the complainant made any request whatsoever to his
union representative, either during the meetings held with him to prepare his
grievance file, in the hours preceding the hearing, or even at the hearing
itself, related to the fact that the hearing was being held in English.
In
reconsideration, the Board checked the emails exchanged between the parties and
noted that the applicant did not raise this question until after the hearing,
on April 27, 2009 (Exhibit P‑12).
However, even if
the Board had found that the applicant had specified that he wanted the
arbitration hearing to be held in French prior to the date of the hearing, the
union would still have had the discretion to act as it did. In fact, the union
has carriage of the grievance and its referral to arbitration, and the Board
has no jurisdiction to assess the quality of representation at arbitration
unless there is evidence of arbitrariness, discrimination or bad faith on the
part of the union.
[Emphasis added.]
[24]
I cannot
say that these findings of the Board are wrong or unreasonable. Therefore, in
my view, there is no merit in these grounds for judicial review.
The shifting of the burden of proof for
obtaining a medical assessment
[25]
A proper
understanding of this argument of counsel for the appellant requires that I lay
out certain facts specific to the issue.
[26]
On or
around April 11, 2008, the applicant injured his right elbow (traumatic
epicondylitis). He sustained this injury while turning the crank of a loading bridge
on a plane. Consequently, he was absent from work until he tried to go back to
work in June, an attempt that was unsuccessful because the injury to his right
elbow had not yet healed sufficiently.
[27]
On
September 22 of the same year, he returned to work on light duty for
20 hours a week. On October 18, 2008, he began a gradual return to
his job as a sheet metal mechanic and finally resumed his position on
November 18, 2008.
[28]
On
November 26, he was suspended prior to being dismissed on the ground that,
while on disability leave and receiving disability benefits from the CSST, he
had worked as a massage therapist and had thereby exacerbated the symptoms of
his injury. The employer alleged that, by abusing the workers’ compensation
system, the appellant had defrauded his employer and the CSST. That is what led
to the appellant’s grievance.
[29]
In the
context of that grievance, the employer informed the union that it had in its
possession a medical assessment report concerning the complainant. According to
this report, the complainant was to avoid all repetitive movements of his right
elbow.
[30]
Furthermore,
the employer stated that it had evidence that, for payment in cash, the
applicant had performed at least two massages lasting more than an hour each on
September 13 and 25, 2008, while receiving disability benefits from
the CSST. The union knew that the applicant had performed at least one other
massage, unbeknownst to his employer.
[31]
The
employer sought the opinion of Dr. Yvan Comeau, an orthopaedic surgeon and
member of the Société des médecins experts du Québec. In light of the audio and
video evidence of the appellant, the medical expert was asked
a) whether
the activities that the appellant had performed were consistent with the injury
diagnosed and/or whether they were inconsistent with the disability and
functional limitations diagnosed by the attending physician; and
b) whether,
in his opinion, the appellant could have feigned his symptoms and/or
exaggerated the consequences.
[32]
In the
audio and video surveillance, the appellant claimed that he was very busy with
various types of massage therapy and performed 10 or so massages per week.
The treating physician who had ordered the appellant to cease all work until
September 18, 2008, and to perform only light duties thereafter, had also
indicated the following restrictions in his report: [translation] “Avoid all repetitive movements, vibrations and contrecoups
to the right elbow”. On the basis of this evidence, the medical expert
concluded that the appellant had disobeyed his treating physician’s
recommendations in performing massage therapy treatments on September 13,
2008, since his physician [translation]
“had advised against any sustained manual activity with the upper limbs,
as he was to cease all work”: see the report in the Applicant’s Record,
Vol. 1, at page 186.
[33]
He also
based his conclusion on the fact that the appellant [translation] “had performed intensive activities that work
the epicondyle in particular, not to mention the fact that he engaged in this
kind of activity even on weekends, whereas his physician had wanted him to take
advantage of that time to rest”: ibidem, at page 187.
[34]
Lastly,
while the medical expert was unable to confirm that the appellant’s massage
therapy activities had aggravated the injury, he did not hesitate in concluding
that the appellant had exaggerated his clinical picture to justify not working
from April to mid‑September. He added that [translation] “there is no doubt that Mr. Veillette would
have been incapable of performing his massage therapy treatments had he
suffered from severe epicondylitis warranting a cessation of work”: ibidem.
[tranlation] “There is no doubt
that Mr. Veillette, in the course of the evolution, feigned symptoms with
Dr. Masri and exhibited grossly exaggerated behaviour when I met with
him”: ibidem, at page 189.
[35]
The union
was notified of the employer’s audio‑visual evidence, as well as of the
conclusions of Dr. Comeau’s assessment. It therefore met with the
appellant to inform him of this new evidence and the proper procedure to
follow.
[36]
At that
meeting, according to counsel for the union, the appellant admitted the fact
but [translation] “claimed that
giving massages involved the same movements as the treatments he was undergoing
for his injury”: see the union’s response, Applicant’s Record, Vol. 1,
page 173, at paragraph 9.
[37]
Given this
statement of the appellant, the union asked him to obtain from his treating
physician a certificate to this effect, which the appellant failed to do.
[38]
It is in
this factual context that counsel for the appellant stated the following at
paragraph 53 of his memorandum of fact and law:
[translation]
53. Thus, by putting the
“blame” on the applicant for not having been able to obtain a medical
assessment, the Board shifted the union’s responsibility onto him, whereas it
was the union that failed to meet its obligations regarding the applicant. In
doing so, the Board unfairly and unjustifiably denied the fact that the
International Association of Machinists and Aerospace Workers (IAMAW) breached
its duty of fair representation with respect to the applicant.
[39]
It is true
that, in its first decision, at page 20, the Board had noted that “the
complainant [had been] unable to obtain a medical assessment to refute that of
the employer”.
[40]
In its
second decision, the Board recognized that there was a factual error in that
statement, as the appellant had never been asked to produce such a medical
assessment: see the second decision, at page 13.
[41]
However,
it is not denied that the union did ask the appellant to obtain from his
treating physician a certificate stating that the massage therapy treatments
that he had performed were compatible with his epicondylitis. The union was
confronted with evidence that was, to put it mildly, damaging to the appellant.
The union had carriage of the grievance and bore the burden of rebutting that
evidence if it could. This burden was never shifted.
[42]
However,
to discharge this burden, the union needed the appellant’s cooperation. The
treating physician who had diagnosed him and ordered him to cease all work was
the proper person for providing the medical certificate required, but, as
mentioned above, the appellant was unable to obtain the assessment from his
treating physician.
[43]
In any
event, the Board recognized its factual error in its second decision and
corrected it. I agree with the Board that this was not an error of law that
cast doubt on the interpretation of the Code and that resulted in a shifting of
the burden of proof.
Conclusion
[44]
For these
reasons, I would dismiss the application for judicial review, without costs in
the circumstances. I would indicate in the judgment to be rendered that these
reasons apply in support of the decision 2010 CIRB LD 2466 of the
Board in reconsideration dated December 1, 2010.
“Gilles
Létourneau”
“I
agree.
M.
Nadon J.A.”
“I
agree.
Johanne
Trudel J.A.”
Certified
true translation
Tu-Quynh
Trinh
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