Date: 20100426
Docket: A-333-09
Citation: 2010 FCA 113
CORAM: NOËL J.A.
LAYDEN-STEVENSON J.A.
STRATAS J.A.
BETWEEN:
STEVEN MURPHY
Applicant
and
CANADIAN TELECOMMUNICATIONS EMPLOYEES’
ASSOCIATION and BELL CANADA
Respondents
Heard at Toronto, Ontario, on April 26, 2010.
Judgment delivered at Toronto, Ontario,
on April 26, 2010.
REASONS FOR JUDGMENT OF THE COURT BY:
STRATAS J.A.
Date: 20100426
Docket: A-333-09
Citation: 2010 FCA 113
CORAM: NOËL
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
STEVEN MURPHY
Applicant
and
CANADIAN TELECOMMUNICATIONS EMPLOYEES’
ASSOCIATION and BELL CANADA
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on April 26, 2010)
STRATAS J.A.
[1]
This is an application for judicial review
concerning a decision of the Canada Industrial Relations Board, dated July 30,
2009. The Board dismissed the applicant’s complaint that the respondent union
breached the duty of fair representation under s. 37 of the Canada Labour
Code, R.S., 1985, c. L-2, as amended (the Code).
[2]
In support of his application, the applicant
raises a number of grounds concerning the Board’s decision dismissing his
complaint. Looking at the applicant’s section 37 complaint, it seems to us that
it raises two categories of issues.
[3]
First, the applicant complained that the union,
in agreeing to a letter of intent outside of the collective agreement, deprived
its members of the availability of a grievance procedure for final settlement
of disputes.
[4]
The standard of review of the Board’s decision
to dismiss this aspect of the complaint is reasonableness. Its decision is
protected by a privative clause and is based on principles of labour law within
its expertise, which it applied to the facts found by it. The Board also relied
upon the reasoning in two earlier decisions made by it in response to others in
the union who made the same complaint. No submissions have been made to us that
suggest that the Board’s decision in this regard was outside the range of
outcomes reasonably available to it.
[5]
Second, the applicant complained that the union
did not adequately disclose information to its members before ratification.
Counsel for the respondent concedes that the Board did not explicitly deal with
this aspect of the complaint but states that the Board implicitly dealt with
it. We are inclined to agree with the respondent on this, but in any event find
the respondent’s alternative argument to be determinative.
[6]
The respondent submitted that the applicant
should have sought reconsideration of the Board’s decision before coming to
this Court on judicial review on this aspect of the complaint. Under section 18
of the Code, the Board has the power, when invited, to reconsider its own
decisions.
[7]
In our view, 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. It is
well-known that, absent exceptional circumstances, an applicant cannot obtain
relief on an application for judicial review when it has not exhausted all
available administrative remedies: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61.
[8]
Therefore, the application will be dismissed
with costs payable only to the respondent union.
“David
Stratas”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-333-09
(APPEAL FROM A JUDGMENT OR ORDER OF THE
CANADIAN INDUSTRIAL RELATIONS BOARD DATED JULY 30, 2009, IN CIRB FILE NUMBER
26547-C)
STYLE OF CAUSE: STEVEN MURPHY v. CANADIAN TELECOMMUNICATIONS
EMPLOYEES’ ASSOCIATION and BELL
CANADA
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: April 26, 2010
REASONS FOR JUDGMENT
OF THE COURT BY: NOËL J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
DELIVERED FROM THE BENCH BY: STRATAS
J.A.
APPEARANCES:
Andrew MacDonald
|
FOR THE APPLICANT
|
Larry
Steinberg
|
FOR THE RESPONDENT, CANADIAN
TELECOMMUNICATIONS EMPLOYEES’ ASSOCIATION
|
SOLICITORS OF RECORD:
Markson MacDonald
Barristers
Toronto, Ontario
|
FOR THE APPLICANT
|
Koskie Minsky
LLP
Barristers and Solicitors
Toronto, Ontario
|
FOR THE RESPONDENT, CANADIAN
TELECOMMUNICATIONS EMPLOYEES’ ASSOCIATION
|