Date: 20060424
Dockets: A-475-04
A-11-05
A-107-05
A-392-05
Citation: 2006 FCA 146
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NADON J.A.
A-475-04
A-107-05
BETWEEN:
TRANSPORT BESNER
ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL
LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER
LTÉE,
Applicants
and
SYNDICAT DES
TRAVAILLEUSES ET
TRAVAILLEURS DE
TRANSPORT BESNER (CSN),
UNION DES CHAUFFEURS DE
CAMIONS,
HOMMES D’ENTREPÔTS ET
AUTRES OUVRIERS,
TEAMSTERS QUÉBEC,
SECTION LOCALE 106 (FTQ)
Respondents
A-11-05
A-392-05
UNION DES CHAUFFEURS DE
CAMIONS,
HOMMES D’ENTREPÔTS ET
AUTRES OUVRIERS,
TEAMSTERS QUÉBEC,
SECTION LOCALE 106 (FTQ)
Applicants
and
SYNDICAT DES
TRAVAILLEUSES ET
TRAVAILLEURS DE
TRANSPORT BESNER (CSN)
and
TRANSPORT BESNER
ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL
LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER
LTÉE,
TRANSPORT TF 13
Respondents
REASONS FOR JUDGMENT
DESJARDINS
J.A.
[1]
The
Court has before it four applications for judicial review.
[2]
The
first (A‑475‑04) is by the applicants Transport Besner Atlantic
Ltée, Transport Besner Central Ltée, Transport Besner Inc. and Gestion Réseau
Besner Ltée (the employer). It asked the Court to quash a decision by the
Canada Industrial Relations Board (the Board), decision No. 285 dated
April 17, 2004 ([2004] C.I.R.B.D. No. 26 (QL)). That decision
allowed two applications made by the Syndicat des travailleuses et travailleurs
de Transport Besner (the Syndicat or CSN), one concerning a sale of business
declaration pursuant to section 44 of the Canada Labour Code,
R.S.C. 1985, c. L‑2 (the Code), and the other a single
employer declaration pursuant to section 35 of the Code.
[3]
The
second and third applications for judicial review were filed by the Union des
chauffeurs de camions, hommes d’entrepôt et autres ouvriers (Teamsters) Québec,
section locale 106 (FTQ) (the Teamsters) (A‑11‑05) and by the
employer (A‑107‑05). They related to a second Board decision,
No. 303 dated December 23, 2004 ([2004] C.I.R.B.D. No. 44 (QL)).
The Board determined the appropriate bargaining unit and ordered that, pursuant
to subsection 29(1) of the Code, a representation vote be held for all
drivers in the appropriate bargaining unit to decide whether the unit drivers
wished to be represented by the Syndicat or by the Teamsters.
[4]
The
fourth application for judicial review was filed by the Teamsters (A‑392‑05).
It concerned a third Board decision, No. 329 dated August 16, 2005
([2005] C.I.R.B.D. No. 24 (QL)), which dismissed two applications to
reconsider the Board’s first two decisions, one by the employer and the other
by the Teamsters.
Facts
[5]
It
appeared from decision No. 285 by the Board that, on September 20,
2002, a corporation known as Transport Besner Inc. (Transport Besner), whose
line of business is the transportation of complete units, was doing business in
Canada and the northeastern U.S. from its place of business located at Saint‑Nicolas.
The business was created in 1976 and held majority interests in two companies
named Transport Besner Atlantic (Besner Atlantic) and Besner Central Ltée
(Besner Central). It was itself held by La Financière Besway Inc.
[6]
Before
October 2002, Besner Atlantic only had a place of business in Moncton and a
facility in Lachine. Besner Central had only a place of business located in
Mississauga and a facility in Lachine. Besner Atlantic had about
25 drivers who were all working in Moncton, and Besner Central used the
services of some 25 drivers in Mississauga through placement agencies.
These companies had no drivers in Saint‑Nicolas (at
paragraphs 11-13).
[7]
Gestion
Réseau Besner Ltée (Gestion Réseau Besner) was created in 1998. It described
itself as a transportation logistics undertaking whose principal line of
business, in addition to administration, consisted in obtaining customers and
then allocating contracts to transportation businesses, primarily Transport
Besner, Besner Atlantic and Besner Central. Its head office was located at the
same address as Transport Besner in Saint‑Nicolas. A significant part of
its administrative and managerial staff had formerly worked for Transport
Besner. Before the creation of Gestion Réseau Besner, Transport Besner itself
took care of all of its administrative activities (recruiting, training and
human resource management in general).
[8]
On
July 18, 2002, the Teamsters filed a certification application for Besner
Central, and on July 24, 2002, they filed a certification application for
Besner Atlantic. Those two applications did not relate to the Saint‑Nicolas
facility. Indeed, Besner Atlantic and Besner Central had no facility at Saint‑Nicolas
before the end of summer 2002. On October 29, 2002, the Board allowed the
Teamsters’ application to discontinue these two cases.
[9]
On
August 27, 2002, two identical collective agreements were concluded
between the
Teamsters and Besner Central and between
the Teamsters and Besner Atlantic for the drivers in those businesses. The
Teamsters were voluntarily recognized by Besner Central and Besner Atlantic.
On November 1, 2002, they filed two applications for certification with
the Board relating to all the facilities of those two businesses respectively,
including that at Saint‑Nicolas. The Syndicat had previously filed two
applications for certification with the Board regarding these same two
businesses, but only for their Saint‑Nicolas facility. The Syndicat had
represented the Transport Besner drivers since February 27, 1998. The
collective agreement applicable to them expired on May 31, 2002. A
transitional clause governed the drivers’ working conditions. That clause,
32.05, read as follows:
[translation]
This
agreement shall remain in effect until renewed.
[10]
In
summer and fall 2002, significant changes were observed in Transport Besner’s
activities. In May 2002, the business had over 280 drivers. As of
December 23, 2002, it only had 98. In fall 2002, no more drivers were
recruited for Transport Besner, but an increase in the number of drivers
recruited for Besner Atlantic and Besner Central could be noted (see
paragraph 22 of the reasons).
[11]
As
early as September 2002, several drivers left Transport Besner and concluded
contracts of employment with Besner Central, Besner Atlantic or other
transportation businesses. Two or three drivers for each of those businesses
were posted in Saint‑Nicolas in September 2002. In December 2002, there
were some 30 drivers posted in Saint-Nicolas for each of the businesses.
[12]
Between
May and December 2002, the Syndicat and Transport Besner undertook negotiations
to arrive at a new collective agreement. The first of these meetings were held
on May 24, July 5, August 29-30 and September 5 and 6.
According to the testimony heard, the stumbling block in the negotiations
concerned the booking system.
[13]
On
October 1, 2002, the Fonds de revenu TransForce purchased the shares of
Transport Besner, Besner Atlantic, Besner Central and Gestion Réseau Besner.
[14]
Negotiations
between the Syndicat and Transport Besner broke down on December 23,
2002. On the same date, Transport Besner closed its doors. The last
98 drivers with the business were dismissed the same day. On
January 10, 2003, the Syndicat filed grievances with Transport Besner on
behalf of the 98 dismissed drivers.
Board’s
decisions
[15]
Decision
No. 285 stated that, at the start of the hearing, the employer filed a
motion to dismiss the application for a single employer declaration made by the
Syndicat. The reason given was that the application was moot as the employer
had closed down.
[16]
The
Board dismissed this application on the ground that the proceeding before it
had concrete consequences for the rights of the parties. In the Board’s view,
an application for a single employer declaration or a sale or transfer of
business declaration could not become moot simply because one of the businesses
in question had closed down. The Board felt that such a ruling would go
against the purpose of the provisions of the Code on the sale or transfer of a
business (see paragraph 79 of the decision).
[17]
The
employer further contended that the Board could not make a single employer
declaration because all the businesses in issue did not fall under federal
jurisdiction. In the employer’s submission, Gestion Réseau Besner had ceased
the activities which made it federal since the end of December 2002 and had
come under provincial jurisdiction. The Board dismissed these arguments on the
ground that Gestion Réseau Besner was a vital and integral part of Besner
Central and Besner Atlantic, which were federal businesses. Accordingly,
Gestion Réseau Besner also had to be governed by the provisions of the Code
(paragraph 197 of the Board’s reasons). The Board made a single employer
declaration, adding that [translation]
“in the event that Transport Besner were to be reactivated as part of this group
of companies, it could also be covered by the single employer declaration
insofar as its activities were carried out in the same way as before its
closure on December 23, 2002” (paragraph 225 of Board’s reasons).
[18]
As
to the application for a sale of business declaration, the Board considered
that the definition of a “sale” contained in section 44 of the Code should
be broadly interpreted. In its view, Transport Besner was the subject not of a
sale in the commercial sense of the word but of a partial transfer
(paragraph 175 of the Board’s reasons). The Board observed that a
significant part of the activities of Transport Besner had been maintained in
Saint‑Nicolas by Besner Atlantic and Besner Central and that Transport
Besner’s activities had not ceased, but had been largely taken over in Saint‑Nicolas
by two affiliated companies, Besner Central and Besner Atlantic. The means
specific to this business, such as the equipment, customers’ usual trips and a
large proportion of the drivers, had been transferred to Besner Atlantic and
Besner Central (paragraph 177 of the Board’s reasons). Accordingly,
Transport Besner’s know‑how in Saint‑Nicolas, much of its staff,
the customers it served and its facilities had survived the closure of
December 23, 2002 (paragraph 179 of the Board’s reasons).
[19]
The
Board ordered the parties herein, namely the Syndicat, the group of businesses
Besner Central, Besner Atlantic, Gestion Besner and Gestion Réseau Besner and
the Teamsters, to undertake negotiations to arrive at an agreement on the
number of appropriate bargaining units and the bargaining agent for each unit.
In the absence of an agreement, they were to discuss among themselves any
question relating to a possible vote, including eligibility criteria.
[20]
The
parties were not able to come to terms. They submitted their comments to the
Board, which had to make a ruling.
[21]
In
its decision No. 303 of December 23, 2004, the Board considered that
a single unit combining all the locations of the employer’s companies was the
appropriate bargaining unit (paragraph 24 of the Board’s reasons). It
ordered the holding of a secret representation to decide on the bargaining
agent.
[22]
The
right to vote was given to all drivers working for Gestion Réseau Besner,
Besner Atlantic and Besner Central on April 17, 2004, who were still
employed by those businesses on the date of the vote. The right to vote was
also available to the 98 drivers dismissed on December 23, 2002 at
Transport Besner and to Martin Alain, the CSN union representative who was
dismissed on or about December 16, 2002.
[23]
Finally,
it appeared that in reconsideration decision No. 329 of April 16,
2005, the Board rejected as follows the arguments by the employer and the
Teamsters that the initial panel had made an error of law when it held that the
98 dismissed drivers still had rights of recall:
37
In the case before us, the evidence presented
indicates that, at the time the transfer of the business pursuant to section 44
of the Code was finalized, that is, on December 23, 2002, the working
conditions of the 98 Transport Besner drivers were governed by a bridging
clause of the expired CSN collective agreement. This bridging clause was
agreed to by the CSN and Transport Besner and stipulated that the terms and
conditions of that collective agreement (including the arbitration procedure)
would apply until these parties entered into a new collective agreement. The
collective agreement contained clauses relating to the recall rights of
employees.
38
For that reason, the original panel concluded
that the bargaining and representation rights of the union of the Transport
Besner employees, including the 98 laid-off drivers, had been transferred
pursuant to section 44 of the Code to Besner Central and Besner Atlantic
(and subsequently included in the single employer declaration).
39
In the original panel’s view, since the lay-offs
took place prior to the closing of Transport Besner on December 23, 2002, the
dispute to which the lay-offs gave rise was also transferred pursuant to
section 44 of the Code. The original panel found that the union had
filed the grievances relating to these lay-offs within the time period provided
for in its collective agreement. Since section 44(2)(d) of the Code
states that the purchaser becomes a party to any proceeding taken under Part I
of the Code that affects the vendor’s employees, the purchaser inherits
pending grievances.
40
The reconsideration panel has given due
consideration to the employer’s argument that the union did not file its
grievances against the lay-offs of December 23, 2002 until January 10, 2003,
after the transfer pursuant to section 44 of the Code. According to the
employer and the Teamsters, these grievances therefore could not bind the
purchaser. However, this reconsideration panel is of the opinion that, since
the union filed its grievances as soon as possible after the closure, it was
appropriate, in this very specific and exceptional case, to consider the
grievance process to have been initiated on the date of the sale of business.
Since the proceeding had already begun, the filing of the grievances on January
10, 2003 should not be an obstacle to the application of section 44 of the Code.
. . .
46 It is not the role of
the Board to assess the legitimacy or admissibility of the union’s grievances.
Under section 46 of the Code, however, the Board must determine any
question that arises under section 44 of the Code. A Board panel
hearing a dispute enjoys considerable discretion. In keeping with the
provisions of section 35 and 18.1(4)(a) of the Code, the original
panel in this case decided to order a representation vote to determine the
bargaining agent.
[24]
At
the start of the hearing before this Court, the Teamsters confirmed to the
Court that a representation vote had been held in which the 98 dismissed
drivers could participate (not all exercised their right to vote) and that the
Teamsters had won the vote and been certified. However, the point raised in
the case still remained relevant, in the submission of the Teamsters, as [translation] “the Board’s decision had
the effect of transferring to the Teamsters grievances which, if interpreted
according to the wishes of the Syndicat and of the Board, and if allowed, would
have the effect of giving the ‘98’ the right to work for the buyer, which would
involve the displacement and lay-off of an equal number of drivers and put in
doubt the seniority list (when drivers were hired by Besner Atlantic and Besner
Central a new rank was given to them regardless of where they had worked
before)” (see applicant’s record, vol. II, at page 267, in case A‑392‑05
of the Court).
Legislative
provisions
|
Review
and Enforcement of Orders
|
Révision
et exécution des ordonnances
|
|
Orders not to be reviewed by court
22.
(1) Subject to this Part, every order or decision of the Board is final and
shall not be questioned or reviewed in any court, except in accordance with
the Federal Courts Act on the grounds referred to in
paragraph 18.1(4)(a), (b) or (e) of that Act.
|
Impossibilité de révision par un tribunal
22.
(1) Sous réserve des autres dispositions de la présente partie, les
ordonnances ou les décisions du Conseil sont définitives et ne sont
susceptibles de contestation ou de révision par voie judiciaire que pour les
motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi
sur les Cours fédérales et dans le cadre de cette loi.
|
|
. .
.
|
[…]
|
|
Board
may declare single employer
35.
(1) Where, on application by an affected trade union or employer, associated
or related federal works, undertakings or businesses are, in the opinion of
the Board, operated by two or more employers having common control or
direction, the Board may, by order, declare that for all purposes of this
Part the employers and the federal works, undertakings and businesses
operated by them that are specified in the order are, respectively, a single
employer and a single federal work, undertaking or business. Before making
such a declaration, the Board must give the affected employers and trade
unions the opportunity to make representations.
|
Déclaration
d’employeur unique par le Conseil
35.
(1) Sur demande d’un syndicat ou d’un employeur concernés, le Conseil peut,
par ordonnance, déclarer que, pour l’application de la présente partie, les
entreprises fédérales associées ou connexes qui, selon lui, sont exploitées
par plusieurs employeurs en assurant en commun le contrôle ou la direction
constituent une entreprise unique et que ces employeurs constituent eux-mêmes
un employeur unique. Il est tenu, avant de rendre l’ordonnance, de donner aux
employeurs et aux syndicats concernés la possibilité de présenter des
arguments
|
|
Review
of bargaining units
(2)
The Board may, in making a declaration under subsection (1), determine
whether the employees affected constitute one or more units appropriate for
collective bargaining.
|
Révision
d’unités
(2)
Lorsqu’il rend une ordonnance en vertu du paragraphe (1), le Conseil
peut décider si les employés en cause constituent une ou plusieurs unités
habiles à négocier collectivement.
|
|
Definitions
44.
(1) In this section and sections 45 to 47.1,
|
Définitions
44.
(1) Les définitions qui suivent s’appliquent au présent article et aux articles 45
à 47.1.
|
|
“business”
|
« entreprise »
|
|
« entreprise »
|
“
business ”
|
|
“business”
means any federal work, undertaking or business and any part thereof;
|
« entreprise »
Entreprise fédérale, y compris toute partie de celle-ci.
|
|
“provincial
business”
|
« entreprise
provinciale »
|
|
« entreprise
provinciale »
|
“
provincial business ”
|
|
“provincial
business” means a work, undertaking or business, or any part of a work,
undertaking or business, the labour relations of which are subject to the
laws of a province;
|
« entreprise
provinciale » Installations, ouvrages, entreprises — ou parties
d’installations, d’ouvrages ou d’entreprises — dont les relations de travail
sont régies par les lois d’une province.
|
|
“sell”
|
« vente »
|
|
« vente »
|
“
sell ”
|
|
“sell”,
in relation to a business, includes the transfer or other disposition of the
business and, for the purposes of this definition, leasing a business is
deemed to be selling it.
|
« vente »
S’entend notamment, relativement à une entreprise, du transfert et de toute
autre forme de disposition de celle-ci, la location étant, pour l’application
de la présente définition, assimilée à une vente.
|
|
Sale
of business
(2)
Where an employer sells a business,
|
Vente
de l’entreprise
(2)
Les dispositions suivantes s’appliquent dans les cas où l’employeur vend son
entreprise :
|
|
(a)
a trade union that is the bargaining agent for the employees employed in the
business continues to be their bargaining agent;
|
a) l’agent négociateur des
employés travaillant dans l’entreprise reste le même;
|
|
(b)
a trade union that made application for certification in respect of any
employees employed in the business before the date on which the business is
sold may, subject to this Part, be certified by the Board as their bargaining
agent;
|
b) le syndicat qui, avant la
date de la vente, avait présenté une demande d’accréditation pour des
employés travaillant dans l’entreprise peut, sous réserve des autres
dispositions de la présente partie, être accrédité par le Conseil à titre
d’agent négociateur de ceux-ci;
|
|
(c)
the person to whom the business is sold is bound by any collective agreement
that is, on the date on which the business is sold, applicable to the
employees employed in the business; and
|
c) toute convention
collective applicable, à la date de la vente, aux employés travaillant dans
l’entreprise lie l’acquéreur;
|
|
(d)
the person to whom the business is sold becomes a party to any proceeding
taken under this Part that is pending on the date on which the business was
sold and that affects the employees employed in the business or their
bargaining agent.
|
d) l’acquéreur devient partie
à toute procédure engagée dans le cadre de la présente partie et en cours à
la date de la vente, et touchant les employés travaillant dans l’entreprise
ou leur agent négociateur.
|
|
Change
of activity or sale of a provincial business
(3)
Where, as a result of a change of activity, a provincial business becomes
subject to this Part, or such a business is sold to an employer who is
subject to this Part,
|
Changements
opérationnels ou vente d’une entreprise provinciale
(3)
Si, en raison de changements opérationnels, une entreprise provinciale
devient régie par la présente partie ou si elle est vendue à un employeur qui
est régi par la présente partie :
|
|
(a)
the trade union that, pursuant to the laws of the province, is the bargaining
agent for the employees employed in the provincial business continues to be
their bargaining agent for the purposes of this Part;
|
a) le syndicat qui, en vertu
des lois de la province, est l’agent négociateur des employés de l’entreprise
provinciale en cause demeure l’agent négociateur pour l’application de la
présente partie;
|
|
(b) a collective agreement that
applied to employees employed in the provincial business at the time of the
change or sale continues to apply to them and is binding on the employer or
on the person to whom the business is sold;
|
b) une convention collective applicable
à des employés de l’entreprise provinciale à la date des changements
opérationnels ou de la vente continue d’avoir effet ou lie l’acquéreur;
|
|
(c)
any proceeding that at the time of the change or sale was before the labour
relations board or other person or authority that, under the laws of the
province, is competent to decide the matter, continues as a proceeding under
this Part, with such modifications as the circumstances require and, where
applicable, with the person to whom the provincial business is sold as a
party; and
|
c) les procédures engagées
dans le cadre des lois de la province en cause et qui, à la date des
changements opérationnels ou de la vente, étaient en instance devant une
commission provinciale des relations de travail ou tout autre organisme ou
personne compétents deviennent des procédures engagées sous le régime de la
présente partie, avec les adaptations nécessaires, l’acquéreur devenant
partie aux procédures s’il y a lieu;
|
|
(d)
any grievance that at the time of the change or sale was before an arbitrator
or arbitration board continues to be processed under this Part, with such
modifications as the circumstances require and, where applicable, with the
person to whom the provincial business is sold as a party.
|
d) les griefs qui étaient en
instance devant un arbitre ou un conseil d’arbitrage à la date des
changements opérationnels ou de la vente sont tranchés sous le régime de la
présente partie, avec les adaptations nécessaires, l’acquéreur devenant
partie aux procédures s’il y a lieu.
|
|
Review of
bargaining units
45.
In the case of a sale or change of activity referred to in section 44,
the Board may, on application by the employer or any trade union affected,
determine whether the employees affected constitute one or more units
appropriate for collective bargaining.
|
Révision
d’unités
45.
Dans les cas de vente ou de changements opérationnels visés à
l’article 44, le Conseil peut, sur demande de l’employeur ou de tout
syndicat touché décider si les employés en cause constituent une ou plusieurs
unités habiles à négocier collectivement.
|
|
Board to determine questions
46.
The Board shall determine any question that arises under section 44,
including a question as to whether or not a business has been sold or there
has been a change of activity of a business, or as to the identity of the
purchaser of a business.
|
Questions
à trancher par le Conseil
46.
Il appartient au Conseil de trancher, pour l’application de
l’article 44, toute question qui se pose, notamment quant à la
survenance d’une vente d’entreprise, à l’existence des changements
opérationnels et à l’identité de l’acquéreur.
|
Applicable
standard of review
[26]
There
was no dispute between the parties as to the standard of review applicable in
the case at bar. The Board’s decisions are protected by a full privative
clause (section 22 of the Code), the issues fall under the exclusive
jurisdiction of the Board under section 46 of the Code and the case law is
well settled (Canadian Broadcasting Corporation v. Canada, [1995]
1 S.C.R. 157; Ivanhoe v. United Food and Commercial Workers,
Local 500, [2001] 2 S.C.R. 565, at paragraphs 24 to 34 [Ivanhoe];
Pushpanathan v. Canada (Department of Citizenship and Immigration),
[1998] 1 S.C.R. 982). The findings of fact made by the Board and the
rulings on points of law which are within the Board’s jurisdiction can only be
reviewed if they are patently unreasonable (Dayco (Canada) Ltd. v. National
Automobile, Aerospace and Agricultural Implement Workers Union of Canada
(CAW-Canada), [1993] 2 S.C.R. 230, at page 307). However, want
or excess of jurisdiction by the Board or its refusal to exercise its
jurisdiction are reviewable according to the correctness standard. In
addition, any act or omission amounting to a violation of an applicable rule of
natural justice would warrant the Court’s intervention.
The
Doctrine of Mootness and Borowski v. Canada
[27]
The
Board dismissed the employer’s motion to dismiss because, in its view, there
was a concrete dispute between the parties. The Board explained that the
possible application of sections 35 and 44 of the Code following the
closing of Transport Besner would have an impact on the parties’ rights;
therefore, it was essential that the Board exercise its jurisdiction and resolve
the dispute between the parties (paragraphs 80 to 87 of the reasons).
Accordingly, in the Board’s view, the point was far from moot.
[28]
The
employer was unable to show the Court that, based on Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342, this decision by the Board
was patently unreasonable.
Unreasonable
findings of fact
Violation
of natural justice
[29]
The
employer contended that the Board ignored the evidence adduced by the employer
as to the causes of the problems that arose at Transport Besner Inc. in fall
2002. It argued that the Board ignored evidence showing that several drivers
had voluntarily decided to resign from Transport Besner Inc. to go and seek
employment with Besner Atlantic or Besner Central because they disagreed with
the arguments advanced by the Syndicat to slow down the employer’s activities
(paragraph 16 of employer’s memorandum – plaintiffs in case A‑475‑04).
[30]
The
employer further submitted that the Board had prevented the employer from
offering all of its evidence relating to the drivers no longer working for
Transport Besner Inc. The employer added that it intended to show that they
had no intention whatever of returning to work for that company
(paragraph 26 of employer’s memorandum – applicants in A‑475‑04).
[31]
In
view of the absence of an official transcript of the testimony heard by the
Board and the exchanges during the hearing and as there are no opposing
affidavits, the employer was unable to discharge the heavy burden of proof upon
it of establishing that the findings of fact made by the Board were patently
unreasonable.
[32]
Further, in my view, in this case, there has been violation
of the rules of natural justice by the Board. The case law is clear: “the
concept of procedural fairness is eminently variable and its content is to be
decided in the specific context of each case” (Knight v. Indian Head School
Division No. 19, [1990] 1 S.C.R. 653,
at page 682, cited in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at
paragraph 21 [Baker]).
[33]
Further, in International Woodworkers of
America, Local 2‑69 v. Consolidated-Bathurst Packaging Ltd.,
[1990] 1 S.R.C. 282, at paragraph 69, Mr. Justice Gonthier
said:
69 I
agree with the respondent union that the rules of natural justice must take
into account the institutional constraints faced by an administrative
tribunal. These tribunals are created to increase the efficiency of the
administration of justice and are often called upon to handle heavy caseloads.
It is unrealistic to expect an administrative tribunal such as the Board to
abide strictly by the rules applicable to courts of law. In fact, it has long
been recognized that the rules of natural justice do not have a fixed content
irrespective of the nature of the tribunal and the institutional constraints it
faces.
[34]
Finally,
in Baker, the Supreme Court of Canada gave a non-exhaustive list of five
criteria applicable in defining the procedural rights required by the duty of
fairness in given situations: (1) the nature of the decision being made
and the process followed in making it; (2) the nature of the statutory
scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals
affected; (4) the legitimate expectations of the person challenging the
decision; and (5) the choices of procedure made by the agency itself (Baker,
supra, at paragraphs 23‑28; see also Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at
paragraphs 114-120).
[35]
In
this case, in view of those criteria, it cannot be said that there was a
violation of the rules of natural justice in the circumstances, as alleged by
the employer. In particular, the administrative nature of the decision, the
specialized function of the Board in the legislative scheme and the choices of
procedure made by the Board within its expertise in industrial relations
indicate that the procedural rights applicable in this case are not as strict
as those applicable to courts of law. Since the Board’s decision is final and
bears on the rights of individuals, however, the duty of fairness is not
minimal: as this Court explained in Bunge of Canada Ltd. v. Canadian Union
of Public Employees, Local 3711 (1995), 181 N.R. 382 (F.C.A.), at
paragraph 25, “[u]ltimately the Court must ensure in each specific case
that the way in which the tribunal acted was not or could not reasonably have
been seen as depriving the individual of an opportunity to present his views
before the decision‑makers in an open and cordial atmosphere”.
[36]
However,
the Board has full control over its own procedure. Further, it has the
discretion to decide whether a particular question requires that a hearing be
held as this requirement does not apply in the context pursuant to the audi
alteram partem rule (section 16.1 of the Code; see also NAV Canada
v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A.), at paragraphs 9‑10;
Raymond v. Canadian Union of Postal Workers (2003), 318 N.R. 319
(F.C.A.), at paragraph 4). When there is a hearing, the Board may refuse
to hear part of the oral evidence offered by a party when such additional
evidence relates to facts that have already been established. In this case,
the employer questioned five drivers, but wanted to question each of the other
93 dismissed drivers in relation to the same facts. In these circumstances, the
Board’s refusal does not amount to a violation of the rules of natural justice.
Single
employer declaration
[37]
The
employer submitted that the Board made a serious error of fact and law and
exceeded its jurisdiction by illegally assuming jurisdiction over Gestion
Réseau Besner, a business which, in the employer’s submission, was clearly
within the scope of provincial jurisdiction under the Constitution. Gestion
Réseau Besner, it said, was a logistics company which was not involved in any
transportation activity, hired no drivers, had no transport licences, operated
no trucks and owned no trailers. It operated as a business broker that
purchased and allocated trips. Further, in order to exist and survive, Gestion
Réseau Besner had no need of Besner Atlantic nor Besner Central, since it used
and has always used a range of additional carriers.
[38]
Based
on this argument, the employer challenged on constitutional grounds the
argument that the Code to Gestion Réseau Besner was inapplicable.
[39]
The
Board explained in detail, at paragraphs 191 to 197 of its reasons, the
factors favouring the application of the Code to Gestion Réseau Besner. It
wrote:
191 Concerning
Besner Network, the Board cannot accept the respondents’ argument that this
company is under provincial jurisdiction because it has no trucks, does not
hire drivers and does not carry out any transport movements. The evidence
submitted shows that Besner Network was established in 1998 and defines itself
as a transportation logistics company. It is an entity in which were
consolidated the operational and administrative services previously provided by
Transport Besner. Further, the testimony heard by the Board revealed that
although the senior management of Besner Network, such as the Vice-President
and General Manager, Equipment Co-ordinator, Vice-President, Operations, Sales
Director and Training Director, perform their work at Besner Network, their
responsibilities also encompass Besner Central and Besner Atlantic. All these
managers, except for the Vice-President, Operations, used to work for Transport
Besner and they all work at Transport Besner’s original address, that is,
354 du Pont, Saint‑Nicolas.
192 The
Board has considered the respondents’ argument that Besner Network is basically
a logistics company, which offers transport movements to its customers and
allocates the contracts it thus obtains to different transportation companies.
Moreover, the Board has noted that Besner Network sometimes assigns customers’
transport movements to companies other than Besner Central and Besner Atlantic
to ensure that delivery dates are met; however, the great majority of trips
(between 75% and 95% in the last few years) are assigned to these two
companies. The respondents’ testimony shows that the transport movements of
these two companies are centralized and administered by Besner Network.
According to some of the testimony heard, including that of the Head Dispatcher
for Besner Atlantic in Moncton, Besner Network is viewed as the “head office” by
the other Besner companies.
193 Further,
it has been shown that the transport movements carried out by Besner Central
and Besner Atlantic were assigned to these companies by Besner Network. The
Besner Network Equipment Co-ordinator clearly explained that this company
centralized customers’ transport requests. He also clearly explained that he
had to assign transport movements to Besner Central and Besner Atlantic (and
Transport Besner until December 23, 2002) in accordance with the location and
availability of equipment, the type of equipment required and the customer’s
delivery date. Thus, the Besner Network Sales Department provides centralized
services from which Besner Central and Besner Atlantic (and Transport Besner
until December 23, 2002) benefit. These companies themselves do not have
Sales Departments, which would enable them to have customers and allocate
transport requests directly.
194 There
are, essentially, two ways for a company to be considered as coming under
federal jurisdiction: first, if in itself it constitutes a single federal work,
undertaking or business because its activities come under the exclusive
jurisdiction of Parliament under section 92 of the Constitution Act,
1867; or second, if it is part of an existing federal work, undertaking or
business. (See United Transportation Union v. Central Western Railway Corp.,
[1990] 3 S.C.R. 1112.) In Westcoast Energy Inc. v. Canada (National Energy
Board), [1998] 1 S.C.R. 322, the Supreme Court of Canada asserted that an
undertaking can be a single federal work or undertaking in one of two ways. It
can be recognized as a federal work, undertaking or business: (a) on its
own account, or (b) because it is operated as a single enterprise in
common with one or more federal undertakings, which together come under federal
jurisdiction. (See also Day & Ross Nfld. Limited, [1999] CIRB
no. 4; and 53 CLRBR (2d) 50; and City‑TV, CHUM City Productions
Limited, Much Music Network and Bravo!, Division of CHUM Limited, [1999]
CIRB no. 22; and 53 CLRBR (2d) 161.)
195 In
this matter, Besner Network is not a work or undertaking that comes under
federal jurisdiction directly or on its own account, as are Besner Central and
Besner Atlantic. However, the Board is satisfied that Besner Network forms an
integral part of the federal undertakings Besner Central and Besner Atlantic
(and Transport Besner until December 23, 2002) and carries out its common
activities with them, and that all these companies are jointly operated.
196 The
Board also considered the jurisprudence submitted by the union, particularly Rivtow
Marine Ltd. and Tiger Tugz Inc., supra. In that case, the Board
stipulated that a company that may at first sight appear to be under provincial
jurisdiction can nevertheless be a federal undertaking if it constitutes a
vital or integral part of federal works or undertakings. The Board set out the
following principles:
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[19] An undertaking
which prima facie falls within provincial jurisdiction because its
works and operations are confined to a single province may nevertheless come
under federal jurisdiction, if it can be shown to be part of a broader
federal undertaking. This may occur if the disputed operation,
notwithstanding its structure as a distinct undertaking performing
essentially local activities, can be shown to be operated in common with a
federal undertaking as a single enterprise . . . For a local
undertaking to be found to be a single enterprise for constitutional
purposes, there must be substantial integration of the management and
operation of the two undertakings (see Westcoast Energy, supra; and Medalta
Distribution Services Ltd. and Exalta Transport Corp. (1995), 98 di 6
(CLRB no. 1117).
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[20] If the disputed
operation is not federal on its own account, then it may also come under
federal jurisdiction if it is found to be integral, vital or essential to a
core federal undertaking in a regulatory sense. This would occur if it can
be shown that an existing federal undertaking is dependent upon the local undertaking
for the performance of an essential of its operation (see United
Transportation Union v. Central Western Railway Corp., [1990]
3 S.C.R. 1112; Re Eastern Canada Stevedoring Company Limited,
[1955] S.C.R. 529, at page 534 [the “Stevedores Reference”]; and Letter
Carriers’ Union of Canada v . Canadian Union of Postal Workers et al.,
[1975] 1 S.C.R. 178 [the “Letter Carriers’ case”]). “Essential”
in this context has been interpreted to include the extended meaning of
“reasonably necessary” (see Canadian Air Line Employees’ Association v.
Wardair Canada (1975) Ltd. et al., [1979] 2 F.C. 91 (C.A.)).
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(pages 9; and 208-209)
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197 In
the light of the submitted evidence and the applicable jurisprudence, the Board
has no choice but to find that Besner Network constitutes a vital and integral
part of the operation of the federal undertakings Besner Central and Besner
Atlantic. The sales, driver training, equipment maintenance and logistics
services are essential to the transportation activities carried out by Besner
Central and Besner Atlantic. Consequently, Besner Network must also be subject
to the provisions of the Code.
[40]
The
employer, that is arguing that the Code does not apply to Gestion Besner, did
not give the Board or the Court a notice of a constitutional question, as
required by section 57 of the Federal Courts Act. I also note that
the parties submitted extensive evidence of relevant constitutional facts to
the Board and that the Board’s decision on this point is particularly well
reasoned. The circumstances of this case differ significantly from those that
gave rise to the decision of the Supreme Court of Canada in Northern Telecom
Ltd. v. Communication Workers of Canada, [1980] 1 S.C.R. 115, at
pages 131, 139 and 140, and to the decisions of this Court in Halifax
Longshoremen’s Assn., Local 269 v. Offshore Logistics Inc. (2000),
257 N.R. 338 (F.C.A.), in Trevor Jacobs v. Sports Interaction, 2006
FCA 116, in Ardoch Algonquin First Nation v. Canada (Attorney General)
(F.C.A.), [2004] 2 F.C.R. 108, at paragraphs 49 and 50, and in Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage) (F.C.A.),
[2004] 3 F.C.R. 436, at paragraphs 75 and 76. I will thus refrain
from deciding whether the absence of notice of a constitutional question is
fatal in itself (a point left open by Mr. Justice Rothstein in Offshore
Logistics Inc., at paragraph 58), and like
Mr. Justice Dickson in Northern Telecom, I will simply find
that the employer “was unable to show that the Canada Industrial Relations
Board had made an error which could be a basis for quashing its decision” (at
page 141).
Sale
of business and sections 44 and 46 of the Code
[41]
Section 44
of the Code contains a statutory definition of what it means to “sell” a
business:
|
“sell”, in relation to a business, includes the transfer or
other disposition of the business and, for the purposes of this definition,
leasing a business is deemed to be selling it.
|
« vente » s’entend notamment,
relativement à une entreprise, du transfert et de toute autre forme de
disposition de celle-ci, la location étant, pour l’application de la présente
définition, assimilée à une vente.
|
The
current version of this definition was adopted in 1998 (S.C. 1998, c. 26, s. 21).
[42]
Previously,
since 1972 (S.C. 1972, c. 18, s. 1, amending inter alia s. 144 of the
Code, the former version of the present s. 44), the statutory definition
of the word “sell” in the Code was as follows:
|
“sell”
in relation to a business, includes the lease, transfer and other disposition
of the business.
|
«
vente » relativement à une entreprise, comprend la location, le
transfert et tout autre acte d’aliénation de l’entreprise.
|
According to the current statutory
definition, in section 44 of the Code the word “sell” is enlarged in
scope, thus goes beyond the strict limits set by the private, civil and common
law.
[43]
In
contradistinction to Union des employés de service, local 298 v. Bibeault,
[1988] 2 S.C.R. 1048 [Bibeault], that bore on specific facts and
provisions of the Quebec Labour Code in effect at the time, under the
current Canada Labour Code a sale does not require a legal relationship
between successive employers.
[44]
In
Bibeault, supra, Mr. Justice Beetz clearly indicated that, for
section 45 of the Quebec Labour Code (as it then stood) to be
applicable, there had to be a consensual legal transfer of the business from
one employer to another. However, as Madam Justice Arbour later explained in Ivanhoe, supra (at
paragraph 47 of her reasons):
. . . it is in a
very specific context, in terms of both the fact situation and of the case law
which existed that this Court held, in Bibeault, that s. 45
cannot apply where work has been contracted to a series of subcontractors by
the same party, in respect of which no certification has ever been granted.
The conclusions stated by Beetz J. regarding the definition of an
undertaking and the legal relationship that must exist between the
former employer and the new employer must be understood in that context,
and this makes it easier to understand the influence of the decision in Bibeault
on the case at bar.
[Emphasis added.]
[45]
Madam Justice Arbour
further noted, at paragraph 27 of Ivanhoe, that there have been
significant changes since Bibeault. Not only, she explained, has the
standard of review changed (at paragraph 58), but the labour commissioners
have developed their own expertise in the area (at paragraph 28), and in
particular the wording of section 46 of the Quebec Labour Code has
been changed. Following Bibeault, the Quebec legislature wished to
express quite clearly its intention: deciding on the existence of a transfer or
grant of a business was to be exclusively within the jurisdiction of the
commissioner.
[46]
On
the other hand, at the time Bibeault was decided, the Canada Labour
Code, section 46 (that is, the former subsection 144(5)), gave
the Board greater power than the Quebec Labour Code gives the
commissioner. Thus in Bibeault, Mr. Justice Beetz said at
page 1094:
The powers conferred on the commissioner by s. 46 [of
the Quebec Labour Code] are fundamentally different from those given to
the Canada Labour Relations Board under s. 144(5) of the Canada Labour
Code, R.S.C. 1970, c. L-1, which Chouinard J. discussed in National
Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R.
269, at p. 276:
In my opinion,
however, when faced with a provision as clear as subs. (5) of s. 144,
cited above, for which there is no equivalent in the Manitoba statute, no
preliminary question is presented and there is no doubt that the Board had
jurisdiction to determine the question: “(5) Where any question
arises . . . as to whether or not a business has been
sold . . . the Board shall determine the question”.
[47]
Madam Justice Arbour adopted
and confirmed the organic concept of the business formulated by Mr.
Justice Beetz in Bibeault (at paragraphs 45, 46, 49, 65, 66
and 70 of Ivanhoe), which also serves to define the word “business” in
section 44 of the Canada Labour Code.
[48]
Then,
at paragraph 94 of Ivanhoe, supra, she added that the question of
whether an undertaking has been transferred must be analyzed according to
flexible tests that are, for the most part, to be assessed by the
administrative tribunals having jurisdiction. She relied on Ajax (Town) v. National Automobile, Aerospace and
Agricultural Implement Workers Union of Canada (CAW-Canada) and its
Local 222, [2000] 1 S.C.R. 538,
in which Chief Justice McLachlin wrote at paragraph 2:
In my view, the historical and
functional connection between Charterways and the Town of Ajax constitutes
evidence upon which the Board would rationally have based conclusion of successorship.
[Emphasis added.]
[49]
Madam Justice Arbour
also cited Mr. Justice Goudge, whose reasons ((1998), 41 O.R. (3d) 426)
(C.A.), were approved in their entirety by the Supreme Court of Canada in Ajax,
and who wrote at page 439 concerning the Ontario Labour Relations Act,
R.S.O. 1990, c. L.2:
The statutory definition is inclusive: “
‘sells’ includes leases, transfers and any other manner of disposition”.
Because of the remedial purpose of s. 64, namely the preservation of
bargaining rights, this definition is to be given a broad and liberal
interpretation.
[50]
Madam Justice Arbour
confirmed (at paragraph 94) that the existence of a formal juridical act
of transfer is not essential. The specific business relationship that existed
between the successive employers is sufficient. Thus, the merger of two
branches of the same bank was recognized where a unionized bank had been closed
and its operations transferred to a non-unionized branch (at paragraph 95
of Madam Justice Arbour’s reasons in Ivanhoe, supra; see also National
Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R.
269).
[51]
Contrary
to the employer’s arguments, I am of the view that, in this case, the Board
made no patently unreasonable error of law at paragraph 182 when it stated:
Rather, the Board finds that
observing a set of factors and facts in their totality allows it to find the
existence of a sale within the meaning of section 44 of the Code. With
respect to the legal relationship, the Board previously found, in Logistec
Corporation et al. (1986), 67 di 120; 15 CLRBR (NS) 338; and 87 CLLC 16,008
(CLRB no. 593) and in Halifax Grain Elevator Limited, supra, that
the type of relationship to be considered by the Board in determining whether a
transfer had taken place was one of “continuity of the business” rather than a
legal relationship.
[Emphasis
added.]
[52]
In
Ivanhoe, supra (at paragraph 72), the Supreme Court of Canada
recognized that the labour commissions and the Labour Court had the authority
to assess the respective importance of the various components of the
undertaking and to hold, in the circumstances, that the transfer of a right to
operate, combined with the transfer of functions, was sufficient to trigger the
application of section 45 of the Quebec Labour Code in view of the
organic definition of an undertaking.
[53]
Further,
in Ivanhoe, supra, the Supreme Court of Canada acknowledged that
administrative tribunals responsible for applying provisions like
section 45 of the Quebec Labour Code (section 44 of the Canada
Labour Code is of the same type) enjoy a wide discretion in determining and
weighing the factors that apply in defining an undertaking, and are at liberty
to develop specific tests to respond to the situation in a given industry (at
paragraphs 66, 67, 69, 70 and 96 of the judgment in Ivanhoe). The
only requirement, as Madam Justice Arbour explained at
paragraph 70 of her reasons, “is that an organic rather than a functional
definition of an undertaking be adopted, although in some cases similarity of
functions may still be decisive, where the undertaking has no other special
characteristics (Bibeault, at page 1107)”.
[54]
The
Board made no patently unreasonable error of law when it ruled out the concept
of “legal relationship” and instead retained that of “continuity of the
business” at paragraph 182 of its reasons. Indeed, in citing Logistec
Corporation et al. (1986), 67 di 120; 15 CLRBR (NS) 338; 87 CLLC 16,008
(CLRB No. 593), and Halifax Grain Elevator Limited (1991), 85 di
42; 15 CLRBR (2d) 191; 91 CLLC 16,033 (CLRB No. 867), the Board relied on
those of its decisions which count as “consensus” decisions in the Board.
Thus, in Logistec Corporation, supra, it relied on Terminus Maritime
Inc. (1983), 50 di 178; 83 CLLC 16,029 (CLRB No. 402), in which a full
panel of the Board ruled on the meaning to be given to the concept of a
business so that the decision would bind all members. The existence of a
consensus in administrative tribunals was noted by
Madam Justice Arbour at paragraphs 58 and 59 of Ivanhoe, supra,
as a factor that favours a very high degree of judicial restraint.
[55]
This
situation is not like the one in Bibeault, where the party which
contracted out the work was never covered by a certification (Ivanhoe,
at paragraph 84), or that in Ivanhoe where, in order to give effect
to the purpose of section 45 of the Quebec Labour Code, the Labour
Court developed the concept of a potential employer, linked to that of
retrocession (at paragraphs 96 and 98 of Madam Justice Arbour’s
reasons in Ivanhoe).
[56]
In
this case, the Board noted that the rationalizing and restructuring of the
operations of Transport Besner within the Gestion Réseau Besner group gave rise
to a transfer of the operations of Transport Besner to Besner Central and
Besner Atlantic. It found that there was “continuity in Saint-Nicolas of a
significant portion of Transport Besner’s activities by Besner Central and
Besner Atlantic” (at paragraph 177 of Board’s reasons).
[57]
Section 44
applies automatically. The interpretation given by the Board to an operational
transfer between related companies and the finding that it made that the first
business continued through companies related to the first business was an
exercise of its specialized jurisdiction, and there was nothing patently
unreasonable about it. The Board’s approach was clearly within the scope of
its jurisdiction.
Fate of collective agreement between Syndicat and
Transport Besner
- Filing of grievances
[58]
In
decision No. 329, the Board explained that section 44 of Code applies
automatically and is fully effective at the time the sale of business occurs
(at paragraph 34). Thus, the successor’s rights and obligations are
automatically transferred to the purchasing employer.
[59]
At
the time of the business transfer, on December 23, 2002, under
section 44 of the Code, the working conditions of Transport Besner’s
98 drivers were governed by a transitional clause in the CSN’s expired
collective agreement. This transitional clause agreed on by the CSN and
Transport Besner provided for the continuation (including the arbitration
procedure thereof) of that collective agreement until a new collective
agreement was concluded between the parties. This collective agreement
contained clauses relating to employees’ rights of recall.
[60]
The
initial panel held that the bargaining and representation rights of the 98
Transport Besner drivers who were dismissed on December 23, 2002 had been
transferred to Besner Central and Besner Atlantic. The initial panel found
that the Syndicat, that filed grievances in respect of these dismissals on
January 10, 2003, did so within the deadline specified in the collective
agreement and, under section 44 of the Code, Besner Central and Besner
Atlantic, or the purchaser, inherited the pending grievances.
[61]
The
reconsideration panel dismissed the Teamsters’ argument that these grievances
were invalid because they were not pending at the time the business was
transferred:
40 . . .
since the union filed its grievances as soon as possible after the closure, it
was appropriate, in this very specific and exceptional case, to consider the
grievance process to have been initiated on the date of the sale of business.
Since the proceeding had already begun, the filing of the grievances on
January 10, 2003 should not be an obstacle to the application of
section 44 of the Code.
41 The
employer further argues that the union has not pursued its grievances since
January 10, 2003. Without seeking to explain the union’s actions, it is
nevertheless possible to understand this situation objectively. After
January 10, 2003, the union was waiting for the Board’s decision on its
application for a sale of business declaration and single employer
declaration. The Board’s decision in Transport Besner Inc. et al. (285),
supra, was sent to the parties on August 17, 2004. In that decision,
the Board asked the parties to come to an agreement with respect to the
determination of the bargaining units and bargaining agent. Since no agreement
was reached by the parties, the Board determined the unit appropriate for
bargaining in Transport Besner Inc. et al. (303), supra, issued on
December 23, 2004, and ordered that a representation vote be held. In
this context, it would have been difficult for any union to move these
grievances forward. Firstly, the ultimate employer was unknown and secondly,
the union was informed that it would have to wait for the outcome of a vote to
find out if it would remain the bargaining agent.
[62]
Finally,
the reconsideration panel noted at paragraph 46 of its reasons that the
role of the Board was not to assess the legitimacy or admissibility of the
union’s grievances, but to determine any question that arose under
section 44 of the Code, and that under section 46 of the Code it had
considerable discretion.
[63]
The
Teamsters submitted that this decision by the Board is patently unreasonable.
They argued that paragraph 44(2)(d) deals with:
“. . . any proceeding taken
under this Part that is pending on the date on which the business was sold
. . .” [Emphasis added.]
[64]
Now,
they argued that the grievances were not pending on the date of the sale.
Accordingly, they could not have been transferred to the buyer. They added
that the grievances, if valid, should have been filed with the buyer, that is
Besner Atlantic and Besner Central: the Syndicat knew the new employer and
filing the grievances with Transport Besner Inc., which had already closed down
on January 10, 2003, could not be valid.
[65]
I
am of the view that the interpretation given by the Board to
paragraph 44(2)(d) of the Code is not in any way patently
unreasonable. It was open to it to find that, in the circumstances, a
grievance that arose on December 23, 2002, and was filed with Transport
Besner Inc. within the 21‑day deadline of the applicable collective agreement
was “a proceeding that is pending on the date on which the business was sold”
(paragraph 44(2)(d) of the Code).
[66]
In
its decision No. 285, at paragraph 236, the Board said:
236 Inasmuch
as Transport Besner closed down on December 23, 2002, and some of the
drivers left the company to work elsewhere, or were laid off, the Board must
consider the current state of the union’s bargaining rights with relation to
this new reality. A single employer declaration entrenches bargaining rights
with respect to the current state of affairs, but cannot restore past power
relationships. Given that the respondents made business decisions that had the
effect of terminating the employment of certain drivers, and notwithstanding
any right potentially flowing from the union’s collective agreement, the Board
cannot go against these business decisions and force the reinstatement of
these drivers, despite its concern to balance the bargaining equation.
Greater detail on the Board’s findings in this regard will be provided with its
decision on the unfair labour practice complaint (file No. 23243‑C)
and its review of the structure of the bargaining units.
[Emphasis
added.]
[67]
The
balance of power was changed again by the vote, in favour of the Teamsters and
not the Syndicat. It is for the arbitrator to be designated to decide any
questions dealing with grievances in accordance with this new balance of power
and in keeping with the powers conferred by the Code.
Conclusion
[68]
I
would dismiss the four applications for judicial review with costs.
“Alice Desjardins”
I
concur.
Robert Décary J.A.
I
concur.
M. Nadon J.A.
François
Brunet, LLB, BCL
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