Date:
20080711
Docket: A-9-07
Neutral citation: 2008 FCA 237
CORAM:
DESJARDINS J.A.
LÉTOURNEAU
J.A.
BLAIS
J.A.
BETWEEN:
SOCIÉTÉ DES ARRIMEURS DE QUÉBEC
and
QUEBEC STEVEDORING COMPANY LTD.
and
SERVICES MARITIMES QUÉBEC INC.
Applicants
and
CANADIAN UNION OF PUBLIC EMPLOYEES,
LOCAL 3810
and
SYNDICAT DES DÉBARDEURS DU PORT DE QUÉBEC,
LOCAL 2614 OF CUPE
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
application for judicial review of a decision by the Canada Industrial
Relations Board (Board) in reconsideration of a decision of a differently
constituted panel of the Board.
[2]
At issue
are the powers of the Board to (a) reconsider its initial decision; (b)
determine, on reconsideration, the intended scope of the bargaining
certificate; (c) rule on the limits of its jurisdiction, relative to that of an
arbitrator; and (d) reconsider, on its own initiative, an issue in the initial
decision.
[3]
In
addition to those issues, it is alleged that, on reconsideration, the Board
breached the rules of natural justice.
Facts and procedural history
[4]
In an
application dated April
17, 2003, the
Canadian Union of Public Employees (CUPE) called on the Board to rule on the
scope of the bargaining certificate governing relations between the parties. It
asked the Board to declare that the certificate includes bulk cargo loading and
unloading activities as well as passenger baggage handling. It also asked the
Board to declare that thirteen (13) persons, who did not have the required
authority, were performing checking work, contrary to the existing
certification.
[5]
After a
long series of hearings (18 days) involving numerous witnesses and a large
volume of documentary evidence, the Board, in an initial decision by the
Vice-Chairperson sitting alone, concluded as follows:
declares
that, unless directly engaged in the loading and unloading of ships, the
employees mentioned in paragraph 7 of the application are not performing
checking work;
declares that
the wording of the current certification order does not include the ticketing
and checking of luggage, unless an agreement is reached between the parties or
an arbitral award is issued with respect to the interpretation of the
collective agreement;
[6]
The Board’s
decision dated November 9, 2005, is the subject of an application for
reconsideration dated November 30,
2005, filed by
applicants CUPE Local 3810 and CUPE Local 2614.
[7]
On
December 8, 2006, a three-member reconsideration panel of the Board rendered a
unanimous decision varying the conclusions of the initial decision. More
specifically, the Board wrote the following:
.
. .
2) reconsiders
and sets aside the original panel’s finding that “unless directly engaged in
the loading and unloading of ships, the employees mentioned in paragraph 7 of
the application [the 13 persons identified in the original application] are not
performing checking work.” The dispute between the parties, that is, whether
specific work done by the 13 persons identified in the original application
constitutes checking work, falls under the jurisdiction of a grievance
arbitrator.
3) reconsiders
and sets aside the original panel’s findings on excluding bulk cargo checking
work and passenger baggage tagging and checking work, and states that, in the
absence of a formal application to amend the description set out in the
bargaining certificate pursuant to section 18 of the Code, the bargaining
certificate does not exclude any type of cargo.
The Société des arrimeurs du Québec, Quebec Stevedoring
Company Ltd. and Services maritimes Québec Inc. then filed an application for
judicial review of that decision in this Court.
[8]
Through
the questions they raise, the applicants seek to re-open the debate on subjects
that have already been decided by this Court. Therefore, there will be no need
to dwell much on any one of the questions they submit.
Power
of Board to reconsider initial decision
[9]
In the
circumstances of this case, there is no doubt that the Board had jurisdiction
to review one of its earlier decisions, since the reconsideration power
conferred on it by section 18 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (Code), is not constrained by section 44 of the Canada
Industrial Relations Board Regulations, 2001, SOR/200-520 (Regulations).
[10]
As this
Court held in ADM Agri-Industries Ltée. v.
Syndicat national des employés de Les Moulins Maple Leaf (de l’Est), 2004 FCA 69, the list of
grounds for reconsideration presented in section 44 of the Regulations is
not exhaustive. It does not affect the scope of the discretion under section 18
of the Code.
Power
of Board on reconsideration to rule on intended scope of bargaining certificate
[11]
When the
Board reconsidered its initial decision, it had the required jurisdiction to
rule on the intended scope of the bargaining certificate. This is an important
aspect of the role it is asked to play, and the issue lies at the heart of its
expertise. Therefore, it did not exceed its jurisdiction in determining whether
CUPE’s certification included bulk cargo as well as passenger baggage tagging
and checking.
Power
of Board on reconsideration to decide whether or not it has jurisdiction to
determine whether persons were performing checking work
[12]
On
reconsideration, the Board could determine whether the issue of whether or not
the 13 persons mentioned in the initial application for reconsideration
were performing checking work is within the Board’s jurisdiction or should instead
be decided by an arbitrator.
Power
of Board on reconsideration to review, on its own initiative, an issue in the
initial decision
[13]
Where a
party applies to have the Board reconsider its initial decision, the Board may,
on its own initiative, consider a question that was not raised by the parties. In
ADM Agri-Industries Ltée, cited above, this Court reiterated the
conclusion it had come to on this subject in Communications, Energy and
Paper Workers Union of Canada v. Canada (Labour Relations Board) (1994),
174 N.R. 57. However, in so doing, the Board must give the parties the
opportunity to make submissions.
[14]
The
question in the case at bar involved interpreting the bargaining certificate so
as to determine whether it included passenger baggage tagging and checking. It
is true that, on reconsideration, the applicants were not asked to make
submissions to the Board on that subject.
[15]
However,
the question had been thoroughly debated at the hearing leading to the Board’s
initial decision. The parties did, in fact, present arguments on how the bargaining
certificate should be interpreted in relation to that question.
[16]
On
reconsideration of its initial decision, the Board had all of the evidence
adduced, the applicants’ arguments on that question and the Board’s own initial
analysis at its disposal.
[17]
In that
context, I do not believe that the applicants suffered any harm whatsoever. This
in itself is enough to dispose of the issue, but I would also add the
following.
[18]
The Board
benefits from a privative clause that considerably limits any judicial review
of its decisions and orders. Under section 22 of the Code, the Board is
not subject to judicial review except where it acts without jurisdiction, acts
beyond its jurisdiction, refuses to exercise its jurisdiction or fails to
observe a principle of natural justice (I will ignore instances of fraud, since
that is not at issue here).
[19]
Here, the
Board’s decision on the merits in reconsideration deals with the interpretation
of the scope of the bargaining certificate. If we assume, without deciding the
issue, that the decision on the merits could be subject to judicial review, then
it could be quashed only if it is unreasonable according to the new
categorization of the standard of review set out in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9. It is
not at all clear that, since that judgment, an unreasonable decision
necessarily results in a loss of jurisdiction: see, for example, the decision
of our colleague, Justice Pelletier, in Air Canada, Jazz Air LP and West Jet
v. Canadian Transportation Agency and the Estate of Eric Norman, Joanne
Neubauer and the Council of Canadians with Disabilities, 2008 FCA 168.
[20]
In the
circumstances, given the lack of harm, the privative clause and the severe
restrictions imposed by the Supreme Court of Canada on the concept of
jurisdiction in its decision in Dunsmuir, I am of the opinion that a new
hearing would inexorably lead to the same result at both decision levels. I
would apply the remedy invoked by the Supreme Court of Canada in Mobile Oil
Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R.
202, at page 228, which is to ignore breaches of natural justice in such cases:
see also Yassine v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 949 (F.C.A.), paragraph 9; Cartier v. Canada (Attorney
General), [2002] F.C.J. No. 1386, paragraphs 31 to 33; and Vézina v.
Attorney General of Canada (Minister of National Revenue), 2003 FCA 67, at
paragraph 7, where that remedy was also applied.
[21]
For these
reasons, I would dismiss the application for judicial review with costs.
“Gilles Létourneau”
“I concur in these reasons.
Alice Desjardins
J.A.”
“I concur.
Pierre Blais J.A.”
Certified
true translation
Michael
Palles
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