Date: 20080107
Docket: A-497-07
Citation: 2008 FCA 3
Present: RICHARD
C.J.
Docket: A-497-07
IN
THE MATTER of a reference by the Attorney General of Canada pursuant to
subsections 18.3(2) and 28(2) of the Federal Courts Act, R.S.C.
1985, c. F-7 as amended, of questions or issues of the constitutional validity,
applicability or operability of an Act of Parliament or of Regulations made
under an Act of Parliament that have arisen in proceedings before the Canadian
Industrial Relations Board.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
APPLICATION UNDER SECTION 18.3(2) OF THE FEDERAL
COURTS ACT
Docket: A-592-07
IN THE MATTER OF THE CANADA LABOUR CODE
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, CANADA;
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 500;
INTERNATIONAL LONGSHORE AND WAREHOUSE
UNION, LOCAL 502;
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 514; AND
INTERNATIONAL LONGSHORE AND WARESHOUSE
UNION, LOCAL 517
Applicants
and
THE ATTORNEY GENERAL OF CANADA; BRITISH
COLUMBIA MARITIME EMPLOYERS ASSOCIATION ON BEHALF OF ITS MEMBER COMPANIES
INCLUDING DP WORLD (CANADA) INC., FRASER SURREY DOCKS LP, TSI TERMINAL SYSTEMS
INC. AND
CERESCORP COMPANY; LE SYNDICAT DES DÉBARDEURS, SCFP SECTION LOCALE 375;
MARITIME EMPLOYERS ASSOCIATION; AND VANCOUVER PORT AUTHORITY
Respondents
REASONS FOR ORDER
RICHARD C.J.
[1]
The
International Longshore and Warehouse Union, Canada, (the ILWU) the
International Longshore and Warehouse Union, Local 500, the International
Longshore and Warehouse Union, Local 502, the International Longshore and
Warehouse Union, Local 514 and the International Longshore and Warehouse Union,
Local 517 (the applicants) have brought a motion dated December 23, 2007, for
an Order that Part 5 of the Marine Transportation Security Regulations
SOR/2004-144 (the Regulations) made pursuant to section 5 of the Marine
Transportation Security Act, S.C. 1994, c. 40, be stayed as it applies
to the Vancouver and Fraser River Ports pending the determination of the Reference
in this matter and that the December 20, 2007 Order of the Canada Industrial
Relations Board in matter File No. 25305-C (the CIRB Order) be stayed pending
the determination of the application for judicial review in this matter
pursuant to section 18.2 of the Federal Courts Act.
[2]
The
Attorney General of Canada and the British Columbia Maritime Employment
Association oppose the granting of the interim relief sought by the applicants.
[3]
The
Vancouver Port Association states that it:
(a) takes no
position on the application to stay the coming into force of Part 5 of the Marine
Transportation Security Regulations, SOR/2004-144 (the “Regulations”),
as to whether or not Part 5 of the Regulations is stayed, VFPA’s
Operations will continue as at present, as in either case, its employees have
obtained transportation security clearances (“TSC”) under Part 5 of the Regulations.
(b) takes no
position on the application to stay the December 20, 2007 Order of the Canadian
Industrial Relations Board in matter File No. 25305-C (the “CIRB Order”).
[4]
However, the
Vancouver Port Authority does make the following submissions:
However, if
this Honourable Court considers the balance of convenience in deciding whether
or not to stay the Regulations or the CIRB Order, VFPA provides the following
facts for this Honourable Court to take into consideration, particularly if
this Honourable Court is considering refusing to stay the Regulations, but
staying the CIRB Order, in which case, VFPA believes there if a real risk of
harm to VFPA and to the local Vancouver and Canadian economy.
If the CIRB
Order is stayed, it appears certain that the employees of terminal operators
who are also members of the applicants will not apply for TSC’s under the Regulations.
If the lack
of employees who are also members of the applicants with TSC’s results in the
cessation of operations of the container and cruise ship terminal operators,
VFPA has provided evidence that there will be likely be severe economic
consequences to the Port, and discrediting of the International reputation of
the Port leading to additional severe impacts on the Port’s and the Canadian
economy.
[5]
This
motion was brought in both Court File Numbers A-497-07 and A-592-07 on the
basis of a single motion record. Although these files have not been
consolidated for the purpose of dealing with the motions, I will give a single
set of reasons.
[6]
I should
also note at the outset, that there is no real argument between the parties as
to the material facts.
[7]
This
matter came before the Board as a result of the British Columbia Maritime
Employers’ Association (the BCMEA) applying to the Canadian Industrial
Relations Board (the CIRB) for a declaration of unlawful strike under section
91 of the Canada Labour Code (the Code) due to an alleged concerted refusal by identified
employees represented by the ILWU to apply for security clearances pursuant to
Part 5 of the Marine Transportation Security Regulations which requires certain
identified employees who work in safety sensitive positions to obtain a Transportation
Security Clearance (TSC) by the implementation date which has been changed from
December 15, 2007 to February 20, 2008.
[8]
In its
decision dated December 22, 2007 (Board File: 26503-C), the Board, with one
dissent, issued a remedial order confirming that an unlawful strike occurred
when the ILWU advised the identified employees, in writing, not to apply for
the security clearance, which they would be required to hold by the
Implementation Date, and the employees refused in concert to apply. The order
of the Board was to become effective only on January 8, 2008, to allow the parties
time to consider their next legal steps.
[9]
In its
decision, the Board recognized that there is nothing in the wording of
subsection 18.3(2) of the Federal Courts Act to suggest that a
reference causes a de facto stay of the tribunal’s process. However, the Board
concluded that the questions referred by the Attorney General of Canada to the
Federal Court of Appeal should be heard and determined by that Court. The Board
however decided to continue with the unlawful strike application.
[10]
On
December 31, 2007, the applicants also filed an application for judicial review
alleging that the CIRB erred by:
a. Denying the applicants a fair
hearing;
b. Conducting a hearing in breach
of the principles of natural justice;
c. Failing to allow the
applicants to call evidence;
d. Failing to allow the
applicants to cross-examine witnesses;
e. Finding that the applicants
were engaged in an illegal strike without evidence of actual interference of
the respondents’ operations;
f.
Failing to
adjourn the proceedings pending a determination of the Attorney General of
Canada reference pursuant to subsections 18.3(2) and 28(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7 as amended, of questions or issues of the
constitutional validity, applicability or operability of the Maritime
Transportation Security Act, S.C. 1994, c. 40 (the Act) and the Maritime
Transportation Security Regulations, SOR/2004-144 (the Regulations) (the
Reference);
g. Finding that a collective
refusal to submit MTSCP forms was a strike;
h. Issuing an order without
consideration of irreparable harm to the applicants; and
i.
Issuing an
order without permitting the applicants to present their defence.
[11]
All
parties filed a motion record by Friday, January 4, 2008, and as ordered by the
Court on December 31, 2007, the motion was heard by telephone conference
between Ottawa, Vancouver and Montreal on January 7, 2008.
[12]
This Court
has directed that the reference by the Attorney General of Canada pursuant to
subsection 18.3(2) of the Federal Courts Act be heard on an expedited
basis.
[13]
The Unions
have combined their motions for a stay in both the Reference and the judicial
review application and have treated the separate motions as one for the purpose
of their memoranda of fact and law.
[14]
The BCMEA
submits that the Federal Court of Appeal does not have jurisdiction to stay the
CIRB order within the context of a motion brought under the Reference and
submits that the correct forum to hear a motion to stay the order of the Board
is within the context of the judicial review application.
[15]
At the
hearing, I indicated that I would proceed on the basis that the motion is
properly before the Court since the applicants have raised both the Reference
by the Attorney General of Canada and the Order of the Board in their
application for judicial review.
[16]
The Supreme
Court of Canada has established a three part test to determine whether a stay
should be granted in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311. The applicants must show: 1) that there is a serious
question to be tried; 2) that irreparable harm will be suffered by the
applicants if the stay is not granted; and 2) that the balance of inconvenience
favours the granting of a stay.
[17]
Each stage
of this test must be satisfied by the applicants, and the analysis must occur
in proper sequence. Thus, the applicants must first show a serious question to
be tried. The applicants must then show irreparable harm. It is only after
having satisfied the first two stages that the analysis moves to the balance of
convenience.
[18]
For the
following reasons, I have concluded that the applicants have not satisfied the
three part test to determine whether a stay or interim relief should be
granted.
[19]
The
threshold to be met in order to satisfy the test of a serious question to be
tried is a low one. I am satisfied that the grounds raised by the applicants
are not vexatious or frivolous. However, I express no opinion on their
likelihood of success.
[20]
Accordingly,
I will proceed to consider the second and third parts of the test.
[21]
The second
stage of the test is irreparable harm. At this stage of the analysis, the only
issue to be decided is whether a refusal to grant relief could so adversely
affect the applicant’s own interests that the harm could not be remedied if the
eventual decision on the merits does not accord with the result of the
interlocutory application (RJR-MacDonald Inc., supra at para. 58).
[22]
Further,
the applicants must prove that actual harm will be suffered if the stay if not
granted. It is not sufficient for the applicants to allege hypothetical or
speculative harm.
[23]
The
Unions’ allege that they face irreparable harm if they are not granted an
interim constitutional exemption from the Regulations and an interim stay of
the CIRB’s order. However, they offer little or no evidence of exactly what
that harm is or, more importantly, how it will actually impact their members,
other than financially, which can be compensated through damages.
[24]
Many of
their arguments about irreparable harm are hypothetical assertions of what
their members may face should the stays not be granted (e.g. members “may” be
disciplined or lose employment or the information obtained “may” be disclosed
by the Minister to foreign governments (ILWU Canada, at paras. 47, 48).
[25]
The need
for an applicant to conclusively prove irreparable harm that is not
speculative, but “will occur”, was clearly confirmed by this Court in Canada (Attorney General) v. Canada
(Information Commissioner)
2001 FCA 25 that when it held (at para. 12):
… the fact
that irreparable harm may arguably arise does not establish
irreparable harm. What the respondents had to prove, on a balance of probabilities,
is that irreparable harm would result from compliance with the subpoena
issued on behalf of the Commissioner (Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (S.C.C.), [1987] 1
S.C.R. 110 at para. 35). The alleged harm may not be speculative or
hypothetical (Imperial Chemical Industries PLC v. Apotex Inc.,
[1990] 1 F.C. 211 (C.A.)) [emphasis added].
[26]
The Unions
allege unreasonable privacy invasion. This Court has made it clear that such
bald allegations of unconstitutionality (including claims of privacy violations
rooted in section 8 of the Charter) are not sufficient to establish
irreparable harm under the tripartite RJR-MacDonald test (Groupe
Archambault Inc. v. CMRRA/SOCRAC Inc. 2005 FCA 330 at para. 16).
[27]
In an
affidavit filed by the Attorney General of Canada, Laureen Kinney, the Director
General of Marine Security at Transport Canada, stated that she had worked for
Transport Canada in transportation security
since May 2004 and had worked as Director General of Marine Security since May
2006.
[28]
She stated
that the objective of the Marine Transportation Security Clearance Program (the
Program) is to enhance marine and port security by requiring background
security checks for port workers who either access restricted areas or perform
duties that could impact upon the security of marine facilities. In Vancouver, less than 20% of port
workers are expected to require security clearances.
[29]
The
Program has been fully implemented in the Ports of Halifax and Montreal and the
control centres on the St.
Lawrence Seaway
with the cooperation of Unions and other stakeholders. As of December 28, 2007,
2,575 port workers from those Ports and the Seaway had submitted applications
for security clearances and security clearances had been granted to 2,291 port
workers with the outstanding applications still being processed.
[30]
More than
1400 port workers from the Ports in Vancouver
have submitted applications for security clearances, with over 1300 security
clearances granted and less than 100 applications outstanding. The applications
received to date have been from non-union and union port workers although only
Vancouver Port Authority employees of Local 517 of the International Longshore
and Warehouse Union has applied.
[31]
The
Regulations provide for the protection of information and documentation
contained in an application for security clearance.
[32]
The
applicants in this case have not provided evidence that any privacy violations
have occurred under the security clearance process.
[33]
The
applicants have failed to prove irreparable harm due to potential breaches of
privacy if the stay is not granted. Mere allegations of speculative privacy and
Charter violations are not sufficient to establish irreparable harm.
[34]
Finally,
in assessing the applicant’s claim of irreparable harm, it is relevant to note
that some members of the applicant ILWU Local 517 have applied for security
clearances under the Regulations with the support of their Union.
[35]
I find
that the applicants have failed to establish that they will suffer irreparable
harm if the requested relief is not granted. For this reason alone, the interim
order sought by the applicants must be denied. However, the applicants
similarly do not satisfy the third stage of the test i.e. the balance of
inconvenience.
[36]
At this
stage, the Court must determine which of the two parties will suffer the
greater harm from granting or refusing to grant the stay, pending the decision
on judicial review, RJR-MacDonald, supra, at para. 62.
[37]
The BCMEA
submits that the Member Companies will suffer irreparable harm if the stay is
granted.
[38]
In its
motion record, the respondent BCMBA filed supporting affidavits to establish
the following facts:
(a) that unionized longshore
employees in Montreal and Halifax have applied for security clearances
under the MTSCP. As well, unionized employees of the Vancouver Port Authority,
represented by the applicant ILWU, Local 517 have been authorized by the Union
to apply for security clearances and have done so;
(b) that it is imperative that
ILWU members, who are required to have security clearances under the MTSCP,
make application for same upon the CIRB Order becoming effective on January 8,
2008 to allow sufficient time to receive and process the applications and issue
clearances prior to February 20, 2008;
(c) there are approximately 750
ILWU members who are required to possess security clearances by February 20,
2008. The BCMEA’s affected member companies (Member Companies) operate
container terminals in the Ports of Vancouver and Fraser River, and the cruise ship terminal in
the Port of Vancouver;
(d) all of the positions and work
areas identified by the Member Companies as requiring security clearance have
been approved by the Minister of Transportation, Infrastructure and Communities
pursuant to the Regulations, by way of the approval of security plans filed by
the Member Companies as required by the Regulations;
(e) if security clearances are not
issued to ILWU employees who require them, prior to February 20, 2008, the
Member Companies will not be able to operate in compliance with the
Regulations. The impact on the Member Companies will be severe both in
financial terms and in terms of their reputation and potential permanent loss
of business, all of which constitutes irreparable harm. There will be a
profound negative impact on the Ports of Vancouver and Fraser River, the economy of British Columbia and those businesses that rely on the
operation of the container terminals and the cruise ship industry.
[39]
In her
affidavit, Laureen Kinney gave the opinion that the further failure to
implement the Program in Vancouver as scheduled, could result in Canada falling behind key trading
partners. With continued delay, there is the potential for irreparable harm to
the Port of Vancouver and to the Canadian economy.
[40]
The
Supreme Court of Canada has stated that, in all constitutional stay cases, the
public interest is a special factor that must be considered in assessing where
the balance of convenience lies: Manitoba (AG) v. Metropolitan Stores Ltd.
[1987] 1 S.C.R. 110.
[41]
At this
stage, it is open for either party to rely on considerations of public
interest. Public interest includes both the concerns of society generally and
the particular interests of identifiable groups, RJR-MacDonald, supra at
para. 66.
[42]
The
applicants are seeking to stay the operation of validly enacted Regulations
which were promulgated in order to, inter alia, minimize the threat of
terrorism that presently faces the public.
[43]
As stated
by the Supreme Court of Canada in Harper v. Canada (Attorney General) [2000] 2 S.C.R. 764 (at para.
9):
… It follows
that in assessing the balance of convenience, the motions judge must proceed on
the assumption that the law …is directed to the public good and serves a valid
public purpose…The assumption of the public interest in enforcing the law
weighs heavily in the balance. Courts will not lightly order that laws that
Parliament or a legislature has duly enacted for the public good are inoperable
in advance of complete constitutional review, which is always a complex and
difficult matter. It follows that only in clear cases will interlocutory injunctions
against the enforcement of a law on grounds of alleged unconstitutionality
succeed.
[44]
In this
case, the Regulations are for public safety and to promote the public interest.
They were promulgated by the Governor in Council pursuant to section 5 of the Marine
Transportation Security Act, which provides (in part):
5.(1) The
Governor in Council may make regulations respecting the security of marine
transportation, including regulations
(a)
for preventing unlawful interference with marine transportation and ensuring
that appropriate action is taken where that interference occurs or could occur;
(b)
requiring or authorizing screening for the purpose of protecting persons,
goods, vessels and marine facilities;
[45]
Further,
the purpose behind the Marine Transportation Security Clearance Program (the MTSCP)
was explicitly articulated in the “Regulatory Impact Analysis Statement” that
was published in the Canada Gazette Part II, Vol. 140, No. 23 along with the
Regulations: “The purpose of the MTSCP is to enhance the security of the marine
transportation system, benefiting the public, passengers, marine workers, and
operators of vessels, ports and marine facilities”.
[46]
The public
interest purpose underlying the Regulations is undeniable.
[47]
Accordingly,
under the three part test, the balance of convenience does not favour granting
the stay and the consideration of the public interest favours denying the stays
sought by the applicants.
[48]
Accordingly,
the motions for interim relief will be dismissed.
"J.
Richard"
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