[1] This is an application for judicial review of a decision of the Canada Industrial Relations Board (the "Board") dated September 30, 2003, which dismissed the applicant's complaint that the respondent, United Transportation Union (the "Union"), had violated section 37 of the Canada Labour Code (the "Code").

[2] A brief review of the facts will place this application in its proper context.

[3] The applicant, at all times material, was a member of the Union and an employee of the second respondent, Canadian Pacific Railway ("CP"). The applicant, like all other members of the Union employed by CP, was covered by a collective agreement concluded between the Union and CP.

[4] On November 1, 2002, CP recalled the applicant for work in Moose Jaw, Saskatchewan, for November 4, 2002. However, on November 3, 2002, the work offer was rescinded.

[5] As a result, the applicant, on November 6, 2002, filed a grievance concerning CP's failure to recall him.

[6] On December 9, 2002, at a time when his grievance had progressed to the Local level of the Union and was at step 2 of the grievance procedure, the applicant filed a complaint against the Union, pursuant to subsection 97(1) of the Code, alleging that the Union had violated section 37 of the Code, which reads as follows:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

37. Il est interdit au syndicat, ainsi qu'à ses représentants, d'agir de manière arbitraire ou discriminatoire ou de mauvaise foi à l'égard des employés de l'unité de négociation dans l'exercice des droits reconnus à ceux-ci par la convention collective.

[7] I should point out that by December 9, 2002, the Union had yet to receive a response from CP concerning the applicant's grievance.

[8] Specifically, the applicant complained that, by reason of an agreement entered into by CP and the Union on September 20, 2002, he had been denied the opportunity of working in Moose Jaw for the first two weeks of November 2002 and the first week of December 2002.

[9] The intended purpose of this agreement, entered into pursuant to article 63.1 of the collective agreement, was to provide for the temporary transfer of Saskatchewan laid-off employees to Alberta and for the recall of those transferred employees, in order to deal with a shortage of employees in Alberta.

[10] The applicant complained that the September 20, 2002 agreement was a breach of the provisions of the collective agreement pertaining to seniority rights, in that the agreement failed to protect the seniority of Saskatchewan-based employees.

[11] The applicant further complained that the agreement had not been disclosed to all of the Union membership, nor were all members of the Union offered a chance to work in Alberta.

[12] It had been intended by the Union and CP that the September 20, 2002 agreement would terminate in April 2003, at which time the transferred employees would have to decide in which region they wished to remain. When it realized that the agreement was, unexpectedly, causing hardship to some employees, the Union contacted CP and the agreement was terminated in January 2003.

[13] On September 30, 2003, the Board released its letter decision No. 923, dismissing the applicant's complaint. Pursuant to section 16.1 of the Code, the Board rendered its decision without holding an oral hearing.

[14] In reaching its ultimate conclusion, the Board carefully considered the relevant facts in the light of the jurisprudence applicable to the Union's duty of fair representation. More particularly, the Board considered the principles enunciated by the Supreme Court of Canada in [1984] 1 S.C.R. 509">Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509. At page 527 of his Reasons for the Court, Chouinard J. stated that the following principles emerged from the case law and academic opinion:

[...]

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

[15] The Board then considered whether a mistake or error by the Union, which caused hardship to employees or gave rise to adverse effects, constituted a breach of the Union's duty of fair representation. In answering this question, the Board had regard to its decision in Carmel Resel (1994), 95 d.i. 120 (CLRB No. 1086), where it held that to the extent that a mistake or error did not result from arbitrary or discriminatory practice, bad faith or gross negligence on the part of the Union, the mistake or error did not constitute a breach of the duty of fair representation.

[16] With these principles in mind, the Board turned to the facts of the case and concluded at page 6 of its decision, that the applicant had not made out his complaint under section 37 of the Code. The Board formulated its conclusion in the following terms:

In the present instance, the Board is of the view that the union carefully considered the impact of the September 20, 2002 agreement on its members. Upon realizing that the agreement did not achieve the anticipated effects of providing employment to surplus employees in Saskatchewan, it was promptly rescinded with the accord of the employer. Such actions are not evidence of the union having behaved in an arbitrary, capricious or discriminatory manner. Nor has the complainant been able to persuasively contradict any of the union's explanations for acting as it did.

As the certified bargaining agent, the union has the necessary latitude to interpret and act within the terms of the collective agreement. It is not required to satisfy every employee within the union's membership, but to ensure that the rights of employees as they relate to the collective agreement are protected. In the instant matter, the Board finds that the union fulfilled its obligations under section 37 of the Code.

For these reasons, the Board finds no violation of section 37 of the Code and dismissed the complaint. This is a unanimous decision of the Board [...]

[17] The applicant seeks to set aside the Board's decision. In support of his attack, he has submitted a lengthy memorandum comprised of 190 paragraphs, where he submits, inter alia, that the agreement of September 20, 2002, was defective and unfair in many respects.

[18] However, nowhere does he show nor attempt to show that the Union, in concluding the said agreement, acted arbitrarily or in bad faith. The applicant makes numerous assertions in that regard, but these assertions remain without any factual foundation.

[19] The applicant also raises issues of procedural fairness, but again, he has not offered a factual foundation for these allegations.

[20] There cannot be much doubt that the applicable standard of review herein is that of the patently unreasonable decision, considering that the Code contains a strong privative clause, that the Code in general, and section 37 in particular, purport to regulate labour unions and the obligations of a trade union in its representation of its members, that the Board's expertise with respect to issues of labour relations is generally high and, finally, that the nature of the problem before the Board, i.e. the duty of a labour union to fairly represent its members, is clearly within the Board's expertise (See Royal Oak Mines v. Canada Labour Relations Board (1996), 133 D.L.R. (4^th) 129; Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, [2001] 2 S.C.R. 565; and Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982).

[21] The Board, in concluding that the Union had not breached section 37 of the Code, carefully considered the parties' submissions, reviewed all of the relevant facts and applied the correct legal test to the facts. Consequently, its decision cannot be characterized, in my view, as being patently unreasonable.

[22] I am also of the view that even on the less deferential standard of review of reasonableness simpliciter, the Board's decision still survives the applicant's challenge.

[23] I should add that not only did the applicant fail to persuade me that the decision was patently unreasonable, he has not pointed to any error, either of a legal or of a factual nature, which could possibly lead us to interfere with the Board's decision.

[24] Finally, to conclude, I am of the view that the applicant's submissions regarding the constitutional validity, applicability and operability of the Code are devoid of any merit. While these submissions provide a useful and interesting review of the relevant Charter principles, they fail to make the necessary link between the said principles and the factual circumstances which have given rise to these proceedings.

[25] For these reasons, I would dismiss the applicant's judicial review application with costs.

"M. Nadon"

J.A.

"I agree.

J. Edgar Sexton J.A."

"I agree.

B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-505-03

STYLE OF CAUSE: DALE DUTCHAK v. UNITED TRANSPORTATION UNION ET AL

PLACE OF HEARING: REGINA, SASKATCHEWAN

DATE OF HEARING: SEPTEMBER 29, 2005

REASONS FOR JUDGMENT: NADON, J.A.

CONCURRED IN BY: SEXTON, J.A.

MALONE, J.A.

DATED: October 14, 2005

APPEARANCES:

Mr. Dale Dutchak THE APPELLANT

Mr. Douglas Wray FOR THE RESPONDENT

(United Transportation Union)

Ms. Karen Fleming FOR THE RESPONDENT

(Canadian Pacific Railway)

SOLICITORS OF RECORD:

Mr. Dale Dutchak ON HIS OWN BEHALF

Moose Jaw, SK

CALEY WRAY FOR THE RESPONDENT

Toronto, ON (United Transportation Union)

CANADIAN PACIFIC RAILWAY, Legal Vices FOR THE RESPONDENT

Calgary, AB (Canadian Pacific Railway)

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Dutchak v. United Transportation Union, 2005 FCA 328

Citations2005 FCA 328

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2005 FCA 328