Date: 20050302
Docket: A-65-05
Citation: 2005 FCA 83
Present: ROTHSTEIN J.A.
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADIAN INDUSTRIAL RELATIONS BOARD and
TELUS COMMUNICATIONS INC.
Respondents
Heard at Ottawa, Ontario on February 25, 2005.
Order delivered at Toronto, Ontario, on March 2, 2005.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20050302
Docket: A-65-05
Citation: 2005 FCA 83
Present: ROTHSTEIN J.A.
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADIAN INDUSTRIAL RELATIONS BOARD and
TELUS COMMUNICATIONS INC.
Respondents
REASONS FOR ORDER
ROTHSTEIN J.A.
Facts
[1] The Telecommunications Workers Union (TWU) applies to stay decision No. 1193 of the Canada Industrial Relations Board dated February 2, 2005. Board Decision 1193 was a decision on a reconsideration application by Telus Communications Inc. of certain prior Board orders. For the purposes of this application, the pertinent decision was a January 28, 2004, decision of the Board, ordering Telus to offer binding arbitration to TWU to settle the collective agreement between the parties. Decision 1193 "annuls" the January 28, 2004 decision directing Telus to offer binding arbitration to TWU. TWU has sought judicial review of Decision 1193 and this stay is sought pending the judicial review by this Court.
[2] As I understand the circumstances, the effect of a stay would be that TWU's members would continue to work under existing terms and conditions of employment. Should the judicial review overturn the Board's reconsideration decision and quash the February 2, 2005, annulment of the Board's January 28, 2004, binding arbitration decision, the parties will be subject to binding arbitration as the method of resolving their employment issues. Should the judicial review be dismissed, a collective bargaining regime will apply and the parties will either reach a successful negotiated settlement or there will be a strike or lock-out.
Serious Issue
[3] I first turn to the question of serious issue. The threshold for determining serious issue is a low one. The Court must be satisfied that the case in neither frivolous nor vexatious. A prolonged inquiry into the merits is neither necessary nor desirable. (see R.J.R. MacDonald v. Canada (A.G.), [1994] 1 S.C.R. 311 at 337.)
[4] While the inquiry into the merits should not be prolonged, at least a minimal inquiry is required. Such an inquiry is difficult on this stay application because the Board has yet to issue its reasons.
[5] TWU says the Board's decision is patently unreasonable in that it failed to follow its existing policies and procedures. It also argues that the Board failed to observe principles of natural justice and procedural fairness by failing to give TWU an opportunity to make submissions as to the proper procedures to follow in this case. A third issue raised by TWU is that the Board's decision to revoke the remedy of binding arbitration was patently unreasonable.
[6] Telus concedes that TWU needs the Board's reasons to advance arguments on these issues and that the Court cannot fairly reach the conclusion that there is no prospect that TWU could not be successful on one or more of them. I agree. While I have little to go on, I cannot say that the issues advanced by TWU are frivolous or vexatious. In the circumstances, I accept that TWU has satisfied the serious issue test.
Irreparable Harm
[7] TWU says that a return to collective bargaining will be imminently followed by a lock-out or unilaterally imposed terms and conditions of employment by Telus. Unilaterally imposed terms and conditions of employment will lead to a strike. Any of these occurrences will cause TWU and its members irreparable harm. TWU says the following consequences are inevitable:
1. if Telus unilaterally alters the terms and conditions of employment, TWU's members will lose certain rights and benefits they presently enjoy;
2. bargaining unit work would be lost, either by Telus contracting out work, or by using managerial and supervisory staff during a strike or lock-out;
3. a strike or lock-out would cause TWU's members financial hardship, anxiety and frustration;
4. TWU's members will lose faith in its ability to conclude a revised collective agreement if the status quo is not maintained; and
5. the Board has previously found that the collective bargaining process has been "poisoned" by Telus. Forcing TWU to bargain in such an environment places TWU in an untenable position, constituting irreparable harm.
[8] At the outset, I would observe that the authorities are consistent that irreparable harm cannot be based on speculation. (See, for example Cognos Inc. v. Canada (Minister of Public Works and Government Services), 2002 FCT 882 at paragraph 21.) The first four of TWU's arguments are based on the assumption that the inevitable result of Board Decision 1193 will be an imminent lock-out, unilaterally imposed terms and conditions of work or a strike. In my opinion, these assertions are based on speculation and not on evidence. The fifth argument, that TWU is in an untenable position to bargain collectively, is not consistent with the evidence.
[9] Following Board Decision 1193, by letter dated February 10, 2005, Telus wrote to TWU. The letter stated in relevant part:
In order to facilitate the return to bargaining, following the CIRB's February 2nd, 2005 reconsideration decision, TELUS re-tables, for discussion with the union, its January 19, 2004 document (three copies of which were enclosed) subject to the modifications identified below.
...
The company reserves the right, through the course of negotiations, to propose any further modifications to its offer which it deems appropriate.
As more than four years have passed since negotiations first commenced, we believe it is incumbent upon both parties to proceed expeditiously to resolve the issues before us. To that end, we have made every effort to minimize the changes required to the comprehensive offer tabled for discussion with the union on January 19, 2004.
[10] On its face, the letter appears to be a good faith proposal to return to collective bargaining. However, TWU says that in reality the letter is an immediate precursor to Telus imposing a lock-out or unilateral terms and conditions of work. It says the February 10, 2005, proposal is virtually identical to the January 19, 2004, final offer made by Telus prior to the Board's decision of January 28, 2004, which ordered binding arbitration. TWU implies that Telus considers these terms to be its final, unalterable position. TWU also says that the reference to it being "incumbent upon both parties to proceed expeditiously to resolve the issues before us . . . " signals that, unless TWU agrees to the Telus' terms and conditions, they will be immediately imposed. TWU will not accept these terms and conditions and the result will be a strike.
[11] In addition to the inferences it draws from the letter, TWU says that Telus is taking steps to engage non bargaining unit staff to perform work of the bargaining unit in anticipation of a lock-out or strike. These steps include a vacation embargo and notification that non bargaining unit personnel are to be trained to do bargaining unit work.
[12] Although TWU does not say so explicitly, the implication of its argument is that Telus does not intend to bargain in good faith.
[13] Section 50 of the Canada Labour Code, R.S. 1985, c. L-2, provides that where notice to bargain collectively has been given, the union and employer shall without delay meet and commence bargaining collectively in good faith and make every reasonable effort to enter into a collective agreement. Paragraph 50(a) provides:
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50. Where notice to bargain collectively has been given under this Part,
(a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the parties otherwise agree, shall
(i) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith, and
(ii) make every reasonable effort to enter into a collective agreement ...
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50. Une fois l'avis de négociation collective donné aux termes de la présente partie, les règles suivantes s'appliquent_:
a) sans retard et, en tout état de cause, dans les vingt jours qui suivent ou dans le délai éventuellement convenu par les parties, l'agent négociateur et l'employeur doivent_:
(i) se rencontrer et entamer des négociations collectives de bonne foi ou charger leurs représentants autorisés de le faire en leur nom;
(ii) faire tout effort raisonnable pour conclure une convention collective ...
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[14] I recognize that the relationship between Telus and TWU has not been an easy one and that the Board has made findings of unfair labour practices against Telus. However, on the evidence before me, I cannot say that Telus is not intending to comply with section 50 of the Code.
[15] The February 10, 2005, letter states that Telus wants the parties to proceed expeditiously to resolve the issues before them. That is precisely what section 50 requires. It may well be that the February 10, 2005, proposal is essentially a reiteration of Telus' prior proposal. However, the letter states that the proposal is retabled "for discussion with the union". These words suggest that Telus is, as it must be under section 50, open to bargaining in good faith and to making reasonable efforts to enter into a collective agreement.
[16] I agree with TWU that Telus' action regarding vacation embargoes and the training of non bargaining unit employees might be construed as being consistent with an imminent strategy to lock out or to unilaterally impose terms and conditions of employment that would lead to a strike. However, that is not the only possible interpretation. Perhaps Telus is concerned that, even in the absence of it imposing unilateral terms and conditions of work, the union will decide to strike. Indeed, on January 2, 2004, the union received a strike vote of 86.4% from its members. Perhaps Telus' actions are related to negotiating strategy. Perhaps Telus is simply making contingency plans in the event that good-faith negotiations fail. Whatever the reasons for Telus' actions, a finding at this time that Telus will imminently engage in a lock-out or impose unilateral terms and conditions of employment would be based on speculation.
[17] Because irreparable harm cannot be based on mere speculation, it not necessary for me to determine whether the consequences of a strike or lock-out alleged in TWU's first four arguments constitute irreparable harm.
[18] I am also unable to conclude that TWU's last argument, that collective bargaining is untenable for TWU, is borne out by the evidence. I do not say that collective bargaining will be easy between these parties. However, I am not satisfied that TWU's position is untenable, even though the Board had previously found a poisoned bargaining environment. In its arguments before this Court, TWU says it "is ready, willing and able to bargain collectively in good faith to conclude a collective agreement". If TWU is willing and able to bargain collectively, I do not see how its position can be said to be untenable.
[19] It may be that at some point the negotiations will fail. However, on the evidence before me on this stay application, I cannot in advance say the negotiations are doomed and that an imminent strike or lock-out is inevitable.
"Marshall Rothstein"
J.A.
Toronto, Ontario
March 2, 2005
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-65-05
MOTION FOR A STAY
STYLE OF CAUSE: TELECOMMUNICATIONS WORKERS UNION
Applicant
and
CANADIAN INDUSTRIAL RELATIONS BOARD and
TELUS COMMUNICATIONS INC.
Respondents
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 25, 2005
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: MARCH 2, 2005
APPEARANCES:
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Morley D. Shortt Q.C.
Patricia A. Dumaresq
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FOR THE APPLICANT
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David Stratas
Brian Burkett
Brad Elberg
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FOR THE RESPONDENT (Telus Communications Inc.)
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SOLICITORS OF RECORD:
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SHORTT, MOORE and ARSENAULT
Vancouver, B.C.
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FOR THE APPLICANT
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PALIARE ROLAND ROSENBERG ROTHSTEIN L.L.P.
Toronto, Ontario
HEENAN BLAIKIE L.L.P.
Toronto, Ontario
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FOR THE RESPONDENT (Canadian Industrial Relations Board)
FOR THE RESPONDENT
(Telus Communications Inc.)
|
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