Date: 20101213
Docket: A-57-09
Citation: 2010 FCA 339
CORAM: DAWSON J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE
J.A.
BETWEEN:
GRAIN SERVICES UNION (ILWU-CANADA)
Applicant
and
RANDALL FREISEN ET AL
Respondents
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The Grain
Services Union (ILWU-Canada) (the “Union”) is challenging a decision bearing
number CIRB 436 and dated January 20, 2009 (the “Decision”) of a panel of the
Canada Industrial Relations Board (the “Board”) rejecting its preliminary
objection to an application under section 38 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (the “Code”) to revoke the certification of the
Union for the unit of employees to which the respondents belong.
[2]
The Union
asserts that the Board erred 1) in determining the merits of the preliminary
objection without hearing evidence and allowing cross-examination on
contradictory affidavit evidence on an essential matter of fact; and 2) in
finding that a final employer offer ratified by the employees may validly be
subject to subsequent ratification by the employer’s board of directors.
[3]
For the
reasons further set out below, I would dismiss this application. The Board was
under no duty to hold an oral hearing since it did not base its decision on any
of the contradictory affidavit evidence. Rather, based on evidence which was
not contradicted, the Board reasonably concluded that a new collective agreement
was not in force or in operation at the time the application to revoke the
certification of the Union had been filed, and
consequently the application to revoke was timely.
Background and context
[4]
Since 2000
the Union has been certified to represent the employees of the Agpro Grain (now
Viterra Inc.) terminal grain elevators and farm supply facilities working in
various locations in Alberta and Manitoba.
A collective agreement was in operation for this bargaining unit from October
1, 2004 to September 30, 2007. Negotiations for its renewal were initiated in
2007 and continued through the first half of 2008.
[5]
The
employer presented the Union with a final renewal offer on
May 27, 2008. The final offer included a new duration for the collective
agreement running from October 1, 2007 to September 30, 2012. The final offer
also provided that the renewed collective agreement would be subject to ratification
and would be effective on the first of the month following ratification unless
agreed otherwise. The Union took the final offer to its membership for approval.
Since the bargaining unit included employees working in various locations in
two provinces, the employee ratification vote was held between June 2 and June
13, 2008.
[6]
On the
afternoon of June 13, 2008 the Union released the results
approving the employer’s final offer. On that same afternoon, a group of
employees filed an application with the Board under section 38 of the Code
to revoke the certification of the Union.
[7]
The
renewal of the collective agreement was subsequently ratified by the employer’s
board of directors on July 4, 2008 with an authorization to implement the terms
of the new collective agreement as of July 1, 2008.
[8]
On July
15, 2008, the Union challenged the timeliness of the application to revoke its
certification, based on its view that the collective agreement had been renewed
on June 13, 2008 as soon as the Union’s
membership had ratified the employer’s final offer. Applications to revoke a
certification are strictly regulated by the Code and can only be
submitted in certain specified timeframes. The combined operation of
subsections 38(2) and 24(2) of the Code is such that if the new
collective agreement had been in operation on June 13, 2008, the application to
revoke the certification would have been untimely.
[9]
Various
affidavits on this matter were submitted to the Board by the Union and on behalf
of the employer. The unchallenged affidavit evidence showed that as a result of
emails dated June 11, 2008 and June 13, 2008, the Union was aware that the terms of the renewal
of the collective agreement were subject to ratification by the employer’s
board of directors.
[10]
However, the
affidavit evidence submitted by the employer also stated that at the time the
employer tabled its proposals, it indicated to the Union that the new
collective agreement would be subject to ratification by its board of
directors. The affidavit evidence submitted by the Union denied this. The legal counsel for the
group of employees seeking the revocation of the certification requested an
oral hearing to resolve this contradiction in the affidavit evidence, while
also submitting that despite the conflict in evidence, “the remaining evidence
clearly establishes that Viterra has been consistent that ratification would be
required” (Applicant’s record at p. 422). The Union responded by advising that
it “would be agreeable to a [B]oard hearing being convened and oral evidence
presented in order to resolve any contradiction in affidavit evidence”
(Applicant’s record p. 427).
[11]
The Board
decided the matter without holding an oral hearing, and proceeded to reject the
Union’s preliminary objection on the issue of timeliness.
[12]
The Union applied for judicial review of this Decision
before this Court, and also filed an application pursuant to section 18 of the Code
asking the Board to reconsider its Decision. The application for
reconsideration was dismissed by another panel of the Board on May 22, 2009
(the “Reconsideration Decision”).
The Board’s Decision
[13]
The Board was
satisfied that the documentation before it was sufficient to decide the matter
without an oral hearing. The Board noted that it did not need to rely on any of
the contradicted affidavit evidence in order to reach a decision (Decision at paras.
4 and 17).
[14]
The Board
found that although the employer had made a final offer to the Union for the
renewal of the collective agreement, that final offer was subject to
ratification by the employer’s board of directors. This finding was largely based
on two emails sent on June 11, 2008 and on June 13, 2008 by the employer’s
representatives to the Union.
[15]
The June
11, 2008 email described the employer’s ratification process as follows
(Decision at para. 6; Application Record at p. 154):
Viterra’s ratification procedure is
straight forward. Once approved by your membership, we will take (sic)
agreement to our principals for ratification ASAP, notify you we have an agreement
and sign off the collective agreement. I gather in the past it has taken a
while to sign off. That is not my practice. I like to sign off while everything
is fresh in everyone’s minds. I trust that won’t pose a problem for you and you
will want to put the agreement to bed quickly as well.
Moreover, the email of June 13, 2008 included the following
(Decision at para. 7; Record at p. 99):
As you know, this agreement is subject to
ratification by Viterra’s Board. I would like to have consent [to the correction
of the errors and omissions] before the document is placed before the Board for
ratification. An agreement is not in place until fully ratified by both parties
so I would not want to see any delays in implementation.
[16]
The Board
then turned its attention to the issue of whether the new collective agreement
was in force or in operation as of June 13, 2008, the date the application for
revocation of the certification had been filed. Its findings on this issue are
set out in the Decision at paras. 20 and 21:
[20] Both parties agree that the final
offer put forward by the employer required some type of ratification before it
would take effect. Article 27 of the proposed agreement, supra, clearly
indicates that ratification is required before the agreement will take effect,
however, the article does not spell out the details of any ratification
process. The union submits that only its members were required to ratify the
agreement before it took effect. For the Board to agree with this position, we
would have to ignore the emails sent to the union by the employer
representatives, which made it clear that its offer was subject to ratification
by the Board of Directors. We are unable to do so. These emails also do not
support the union’s submission that the ratification by the Board of Directors
was a “mere formality” and therefore something less than a genuine
ratification. The fact the employer’s spokesperson was making a point of
telling the union on June 11, 2008 that the contract was subject to ratification
by the company Board of Directors is not consistent with the position that this
ratification process was of no significance.
[21] The evidence suggests that the new
agreement was not in operation, for the purposes of the Code, until it
was ratified by both parties. The evidence indicates that while the union
membership ratified the agreement on June 13, 2008, the agreement was not
ratified by the company’s Board of Directors until July 4, 2008. It follows
from this that the new agreement was not in operation on June 13, 2008 when the
revocation application was filed, and therefore, the application is timely.
The
Issues
[17]
The Union
raised two somewhat overlapping issues in its application for judicial review which
do not fully reflect the arguments made in its memorandum of fact and law and
in oral argument. I have consequently restated these issues as follows:
1) Did the Board err in determining
that the new collective agreement was subject to ratification by the employer’s
board of directors without hearing evidence and allowing cross-examination on
contradictory affidavit evidence relating to this matter?
2) Did the Board err in
finding that a final employer offer ratified by the employees may nevertheless
be subject to subsequent ratification by the employer’s board of directors?
Preliminary Issue
[18]
In light
of the Reconsideration Decision, prior to the hearing of this application, the
Court issued directions to the counsel of the parties to address the
applicability of Vidéotron Télécom Ltée v. Communications, Energy and
Paperworkers Union of Canada, 2005 FCA 90 (“Vidéotron”).
In Vidéotron, the Court questioned the propriety of hearing an
application for judicial review of a Board’s decision where that decision had
been reconsidered by the Board but not disturbed, and where the reconsideration
decision had not been subsequently challenged by way of judicial review.
However, Vidéotron also confirmed the Court’s discretion, in appropriate
circumstances, to nevertheless hear an application for judicial review of an
initial decision even where an unsuccessful subsequent reconsideration of the
decision has not been challenged.
[19]
In
response to these directions, counsel for the Union sought an adjournment of the hearing for
the purpose of seeking leave to submit an application for judicial review of
the Reconsideration Decision and for the further purpose of making written
submissions on the applicability of Vidéotron. Counsel for the
respondents opposed this request for an adjournment. She argued that the
respondents did not seek to rely upon Vidéotron. Further, she submitted
that in Vidéotron the Court acknowledged its discretion to hear an
application for judicial review notwithstanding the failure to challenge a
subsequent reconsideration decision by the Board of the decision under review.
She argued that such discretion should be exercised in this case because any
further delay in these proceedings would be prejudicial to the respondents. In
reply, counsel for the Union acknowledged the willingness of her client to
proceed on the merits of the application for judicial review on this basis.
[20]
Consequently,
in these circumstances, the Court decided to exercise its residual discretion
to hear the merits of the judicial review application, and denied the request
for an adjournment without awarding any costs in respect of this request.
Did
the Board err in determining that the new collective agreement was subject to
ratification by the employer’s board of directors without hearing evidence and
allowing cross-examination on contradictory affidavit evidence relating to this
matter?
[21]
The thrust
of the Union’s argument is that the Board
should not resolve issues of credibility or draw inferences from conflicting
evidence unless it has provided the parties an opportunity to present viva
voce evidence. While the Union recognizes that the Board has the power
under section 16.1 of the Code to determine a matter without an oral
hearing, it asserts that this power can only be exercised where there is
sufficient evidence before the Board to resolve the evidentiary conflicts and
to make a decision. In this case, the Union
asserts that the contradictory affidavit evidence concerned a material fact
relating to the requirement of employer ratification, and that consequently the
Board breached the rules of natural justice and procedural fairness by denying
the parties the ability to fully present their case and to cross-examine the
affiants.
[22]
Section
16.1 of the Code clearly provides that “[t]he Board may decide any
matter before it without holding an oral hearing”. This section came into force
in 1999 and broadened the discretion of the Board in deciding when oral
hearings were necessary or useful. The section, read with the provisions of the
Canada Industrial Relations Board Regulations, 2001, SOR/2001-520,
indicates that the Board will decide matters on the basis of the material filed
before it unless the Board decides otherwise: Raymond v. Canadian Union of
Postal Workers, 2003 FCA 418, 318 N.R. 319 at para. 4; NAV Canada v. International Brotherhood
of Electrical Workers, Local 2228, 2001 FCA 30, 267 N.R. 125 at paras. 10-11.
[23]
The discretion
of the Board under section 16.1 of the Code is very wide, but it is not
absolute. Our Court has determined that this section does not authorize a
breach of the duty of procedural fairness by permitting the Board to dispense
with an oral hearing in circumstances where this would deny a party a
reasonable opportunity to participate in the decision-making process: Communication,
Energy and Paperworkers Union of Canada v. Global Television (Global
Lethbridge, a Division of CanWest Global Communications Corp.), 2004 FCA
78, 318 N.R. 275 at para. 23;
Amalgamated Transit Union, Local 1624 v. Syndicat des travailleuses et
travailleurs de Coach Canada, 2010 FCA 154, 403 N.R. 341 at para. 18.
[24]
Our Court has also found,
in the context of a complaint of unfair representation under section 37 of the Code,
that the mere fact that evidence is contradictory does not automatically
warrant an oral hearing before the Board absent other compelling reasons.
Indeed, since many credibility issues will almost unavoidably arise in a labour
relations context, section 16.1 of the Code would potentially be
deprived of effect if it were otherwise interpreted and applied: Nadeau v.
United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at para. 6; Guan
v. Purolator Courier Ltd., 2010 FCA 103 at para. 28; see also in a
different legislative context Vancouver Wharves Ltd. v. International
Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514
(F.C.A.) (1985), 60 N.R. 118.
[25]
I am of
the view that the same principle applies in this case concerning a revocation
of certification under section 38 of the Code. In order to successfully
challenge the decision of the Board not to hold an oral hearing in such
circumstances, it must be demonstrated not only that contradictory evidence was
before the Board, but that the resolution of this contradictory evidence was
essential to the outcome of the decision and that no other evidence could
reasonably support the decision of the Board.
[26]
In this
case, it is admitted that contradictory affidavit evidence was before the Board
on the issue of whether, when initially tabling its proposals, the employer had
informed the Union of the requirement for ratification by its board of
directors. The Board acknowledged this contradictory evidence, but found that
“[i]t was not necessary for the Board to resolve this evidentiary issue in
order to reach a decision in this matter” (Decision at para. 4), thus finding
that the contradicted evidence was not essential to the outcome of its
decision. The Board further found that there was ample evidence which was not
contradicted which could support its decision, including emails admittedly
received by the Union on June 11 and June 13, 2008
by which the employer clearly stated its requirement for ratification by its
board of directors (Decision at paras. 6, 7, 17 and 20).
[27]
Moreover,
the parties agree, and the Board found, that section 27 of the employer’s
proposal contemplated ratification of the offer (Decision at paras. 5 and 20), that the employer referenced the
requirement of ratification by its board of directors in its press release of
June 16, 2008 acknowledging the ratification vote by the employees (Decision at
para. 8), and that the new collective agreement was indeed submitted for
ratification to the board of directors on July 4th, 2008 (Decision at
paras. 9 and 21).
[28]
In this
context, there is no basis for the Union’s claim that the Board proceeded
improperly in finding that the new collective agreement was subject to
ratification by the employer’s board of directors. There was ample uncontradicted
evidence before the Board for it to reach this conclusion, and the resolution
of the contradicted affidavit evidence before it was not essential to the
outcome of the decision. Consequently, the Board made no error by deciding the
matter before it without holding an oral hearing.
Did the Board err in finding that a final
employer offer ratified by the employees may nevertheless be subject to
subsequent ratification by the employer’s board of directors?
[29]
The Union submits that the common law principles
of offer and acceptance should have been applied by the Board in determining
the renewal date of the collective agreement. The employer tabled a final offer
with the Union which was accepted by the majority of the employees on June 13,
2008. Therefore, upon this acceptance vote, all the necessary elements existed
for the final offer to constitute a collective agreement. To hold otherwise,
says the Union, would mean that despite the
fact the employer tabled a final offer, and despite the fact the majority of
employees accepted this final offer, the employer could still have rejected its
own offer and the parties would have been required to recommence negotiations.
If the employer’s bargaining committee did not have the authority to table a
final offer, the employer would have committed an unfair labour practice.
[30]
In
essence, the Union suggests that an employer cannot, as a matter of law,
reserve the right to ratify a final offer it has made, and that the Board erred
in finding otherwise. This raises an issue of legal interpretation of the Code
and specifically of the meaning of the terms “where a collective agreement
applicable to the unit is in force” or in “operation” set out in paragraph
24(2)(d) of the Code.
[31]
The
Board’s interpretation of the Code should, in most instances, be
reviewed on a standard of reasonableness: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at para.
48; Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 54-55 (“Dunsmuir “); Association
des courtiers et agents immobiliers du Québec v. Proprio Direct Inc., 2008
SCC 32, [2008] 2 S.C.R. 195 at para. 21, Khosa, supra, at para.
25; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678 at
paras. 33 and 34; Canadian Federal Pilots Assn. v. Canada (Attorney General), 2009 FCA 223, 392 N.R. 128
at paras. 36 and 51.
[32]
The Union has provided no case law which supports
the proposition that an employer cannot, as a matter of law, reserve the right
to ratify a final offer it has made and which has been accepted by its
employees. In fact, as noted by the Board itself (Decision at para. 19), the
principal case relied upon by the Union does not support its position: Shaw
Cablesystems G.P. (Re), [2003] CIRB No. 211, [2003] C.I.R.B.D. No. 10, at
paras. 19 to 28 (“Shaw Cablesystems”). Further, the Board specifically
acknowledged the existence of cases where a final offer from an employer
presupposes that the employer has already approved the contents of that offer.
In this case, the evidence, in the Board’s view, indicated otherwise. It was
therefore reasonable for the Board to assume in this case that there were no
legal impediments to the employer reserving the right to have its board of
directors ratify its final offer after it had been approved by the employees.
[33]
Shaw Cablesystems
correctly
sets out at paragraph 33 that a consideration of when a collective agreement is
in “operation” for the purposes of applying the provisions of sections 38 and
24 of the Code must involve a consideration of when, on the basis of the
facts actually before the Board, the collective agreement was intended to and
actually did operate.
[34]
Consequently,
each case must be considered on its own facts and with regard to its particular
circumstances. This is what the Board did here. The Board considered the facts
before it and concluded that in the circumstances of this case, the new
collective agreement was not “in force” or in “operation” on June 13, 2008 when
the application to revoke the certification of the Union had been filed. This conclusion “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, supra, at para. 47).
[35]
For these
reasons, I would dismiss the application for judicial review with costs in
favour of the respondents.
"Robert M. Mainville"
“I
agree.
Eleanor R. Dawson J.A.”
“I agree.
Carolyn Layden-Stevenson J.A.”
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