Norton v. Via Rail Canada Inc., 2005 FCA 205

Date: 20050601

Dockets: A-216-04

A-208-04

A-210-04

Citation: 2005 FCA 205

CORAM:        NADON J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:                                                                                                                           A-216-04

                                                              BRIAN NORTON

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

AND:

BETWEEN:                                                                                                                           A-208-04

MARGARET TEMPLE

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

AND:

BETWEEN:                                                                                                                           A-210-04

BRENDA BONNER

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

                                     Heard at Winnipeg, Manitoba, on February 16, 2005.

                                   Judgment delivered at Ottawa, Ontario, on June 1, 2005.

REASONS FOR JUDGMENT BY:                                                                           SHARLOW J.A.

CONCURRED IN BY:                                                                                                   NADON J.A.

DISSENTING REASONS BY:                                                                                    MALONE J.A.

Date: 20050601

Dockets: A-216-04

A-208-04

A-210-04

Citation: 2005 FCA 205

CORAM:        NADON J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:                                                                                                                           A-216-04

                                                              BRIAN NORTON

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

AND:

BETWEEN:                                                                                                                           A-208-04

MARGARET TEMPLE

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

AND:

BETWEEN:                                                                                                                           A-210-04

BRENDA BONNER

                                                                                                                                              Appellant

                                                                           and

                                                        VIA RAIL CANADA INC.

                                                                                                                                          Respondent

                                                                           and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                             Intervener

                                                    REASONS FOR JUDGMENT

SHARLOW J.A.

[1]         In August of 2002, the appellants Margaret Temple, Brenda Bonner and Brian Norton filed originating notices of application under section 77 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the OLA). The respondent VIA Rail Canada Inc. (VIA) moved for an order to have their applications struck out. That motion was granted by a Prothonotary (2002 FCT 1175). The appellants appealed to the Federal Court pursuant to section 51 of the Federal Court Rules, 1998, SOR/98-106. That appeal was dismissed: Norton v. Via Rail Canada Inc. (2004), 248 F.T.R. 312. The appellants now appeal to this Court.

[2]         The appellants are employees of VIA, working in western Canada. Ms. Temple and Ms. Bonner are Senior Service Attendants, and Mr. Norton is an Assistant Service Co-ordinator. They are all bound by the terms of "Collective Agreement No. 2 covering On-Board Services Employees" (the Collective Agreement) between VIA and the National Automotive, Transportation and General Workers Union of Canada (CAW). All of the appellants speak English but not French.

[3]         The Collective Agreement includes provisions with respect to the following matters: (1) the duties and responsibilities, including language requirements, for the positions of Service Manager, Service Co-ordinator, Assistant Service Co-ordinator, Senior Service Attendant and Service Attendant (Appendix 9); (2) the procedure to be followed for the posting, application and assignment of positions within the bargaining unit (Article 12); and (3) the grievance procedure to be followed with respect to any complaint raised by employees concerning the interpretation, application or alleged violation of the Collective Agreement or any complaint that they have been unjustly dealt with, including a provision for final and binding arbitration (Articles 24.21-24.24 and Article 25).

[4]         Appendix 6 of the Collective Agreement sets out the procedure for identifying bilingual requirements and for designating which specific positions require bilingual skills. It also provides for an expedited dispute resolution procedure in the event of a disagreement over the linguistic designation of a specific position on the ground that it does not comply with the OLA. Appendix 6 reads in part as follows:

[5]         The appellants were among 39 employees of VIA who, between 1999 and 2001, filed complaints with the Commissioner under section 58 of the OLA. Their complaints raised issues about the impact of VIA's language policy on their opportunities for advancement and full-time employment in western Canada. They challenged VIA's bilingualism requirement for the Service Manager and the Assistant Service Coordinator on board VIA trains, including the Western Transcontinental. Section 58 reads as follows:

[6]         VIA is a "federal institution" to which the OLA applies. The appellants had the right to submit their complaints to the Commissioner under section 58.

[7]         In response to the 39 complaints, the Commissioner investigated VIA's linguistic requirements with regard to the Service Manager and Assistant Service Co-ordinator positions and, in May 2002, issued a report entitled the Final Investigation Report on Language Requirements and Related Issues Concerning VIA Rail in Western Canada (the Commissioner's Report) containing the Commission's findings and eight recommendations. For the purposes of this case, only the first, third and fourth recommendations are relevant. They are that VIA:

[8]         Following the publication of the Commissioner's Report, the appellants filed the applications that are the subject of this appeal. They sought the following remedies:

[9]         The subject matter of the applications is within subsection 77(1) of the OLA. The nature and scope of the section 77 remedy are well described by Décary J.A. in Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 F.C.R. 276 at paragraphs 15 to 21:

[10]       In their applications, the appellants allege that in the course of their employment with VIA they were denied access to positions covered by the Collective Agreement on the ground that they did not satisfy the bilingual requirements for those positions. In particular, the appellants were dissatisfied with the bilingual requirements for the Service Manager and Assistant Service Co-ordinator positions, both of which require bilingual skills to perform the duties and responsibilities set out in Appendix 9 of the Collective Agreement.

[11]       VIA filed a motion to strike the applications on two main grounds: first, that the Federal Court did not have jurisdiction to provide a remedy in the nature of an injunction or mandamus absent any legal duty or obligation on VIA; and second, that the Federal Court did not have jurisdiction to hear the applications because the issues raised fell within the exclusive jurisdiction of the grievance arbitrator, in accordance with the mandatory grievance procedure set out in the Collective Agreement. In that regard, VIA relied on section 56, subsection 57(1) and section 58 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code). Those provisions read as follows:

[12]       The Prothonotary accepted both of VIA's arguments, and ordered that the applications be struck. That decision was appealed to the Federal Court and shortly thereafter the Commissioner was granted intervener status. In the Federal Court and in this Court, the position of the appellants was argued by counsel for the Commissioner. The appellants were not represented by counsel and made no submissions.

[13]       The Judge reviewed the Prothonotary's decision and dismissed it. He too substantially accepted both of VIA's arguments.

[14]       According to the jurisprudence of this Court, the Judge was required to reconsider the motion anew because a question raised in the motion was vital to the final issue of the case (see Merck & Co., Inc. v. Apotex Inc. (F.C.A.), [2004] 2 F.C.R. 459, at paragraph 19). The role of this Court on appeal is to determine whether the Judge erred in upholding the Prothonotary's decision.

[15]       An order striking an originating application before hearing is an extraordinary remedy, granted only in narrowly defined circumstances. Such an application is not struck unless it clearly has no possibility of success (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) at page 600). An application under section 77 of the OLA should not be struck unless there is no possibility that the Judge hearing the application will grant a remedy.

[16]       In this case, the basis for striking the applications was essentially that the Federal Court lacked the jurisdiction to grant a remedy, either because the appellants are seeking to specifically enforce non-binding recommendations, or because the subject matter of the complaint is within the exclusive jurisdiction of a labour arbitrator. I must respectfully disagree with the Judge and the Prothonotary that the jurisdictional issues raised in these applications are so clear that the applications cannot possibly result in a remedy.

[17]       I will consider first the question of whether the application is in substance an application for an order in the nature of mandamus that is bound to fail because VIA is not bound by the Commissioner's recommendations. It is true that the Commissioner's recommendations are advisory only, that they result in no legal rights being vested in the appellants (except the right to bring an application under section 77 of the OLA), and that they are not binding on VIA. It is also true that the applications are drafted as claims to enforce three of the Commissioner's recommendations.

[18]       However, it must be borne in mind that the appellants are representing themselves. It is not surprising that their documents are not drafted as elegantly as they might be. The substance of their complaints is sufficiently clear. In my view it would be open to a judge to find their complaints to be well founded and to grant some remedy, even if the remedy falls short, or must necessarily fall short, of everything that is asked for.

[19]       As to the second ground for striking the applications, I have some doubt about the proposition that all differences relating to the matters listed in subsection 57(1) of the Code, that is, the interpretation, application, administration or contravention of a collective agreement, are exclusively within the jurisdiction of a labour arbitrator. However, even if I am wrong to have such a doubt, it seems to me an open question whether the complaints disclosed in these applications fall entirely within the listed matters.

[20]       I do not propose to elaborate on this point, because it will be for the judge who finally hears this application to interpret the complaints and assess their merits. It is enough to say that, by the time the applications are heard, it may be determined that there is no real dispute between the appellants and VIA as to what the Collective Agreement means, or the correctness of its application or administration. There may be no allegation of a breach of the Collective Agreement. Rather, the substance of the complaint may be that the language rights of the appellants were breached when the terms of the Collective Agreement were agreed to, either because of what is in the Collective Agreement, or because of what is not in the Collective Agreement. Also, there may be aspects of VIA's language policy that fall within the discretion of the management of VIA, and to that extent at least there is room to consider a remedy that is outside the scope of the Collective Agreement.

[21]       There may be other legal issues that should be resolved before it is determined whether any remedy is appropriate. For example, it seems to me that the applications disclose the possibility of a debate as to whether the Collective Agreement is intended to bar the appellants from all recourse to section 77 of the OLA. If that is indeed what the Collective Agreement purports to do, then an issue may arise as to whether it is possible, as a matter of law, to bargain away the right of a person to bring an application under section 77 of the OLA.

[22]       I leave open the possibility that, after a hearing, a judge may determine that the language rights of the appellants have not been breached, or that their language rights are most appropriately dealt with in the context of the grievance procedure set out in the Collective Agreement, or that there is no remedy that could be granted by the Federal Court without infringing on the jurisdiction of a labour arbitrator. But in my view, this is not a situation where debate on these points ought to be foreclosed without a hearing.

[23]       For the reasons stated above, I would allow this appeal, set aside the judgments of the Judge and the Prothonotary, and dismiss VIA's motion to strike the applications. I would grant the appellants their costs in this Court and in the Federal Court.

                                                                                   (s) "K. Sharlow"               

                                                                                                      J.A.         

"I concur.

     M. Nadon J.A."

MALONE J.A. (dissenting reasons)

[24]       I have had the privilege of reading the majority reasons for judgment which my colleague, Sharlow J.A., has circulated in this appeal. As I am unable to agree with her proposed disposition of the appeal I respectfully dissent for the following reasons.

[25]       In my view, the Federal Court Judge did not err in concluding that he lacked jurisdiction to hear these applications on the basis that federal labour arbitrators have exclusive jurisdiction over the dispute and, therefore, he did not fail to properly apply the test laid down by this Court for the dismissal of originating applications (see David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) at 600).

[26]       The relevant facts and provisions of the Collective Agreement are set out above in the reasons of Sharlow J.A. at paragraphs 3 through 8 and need not be repeated.

[27]       Following the publication of the Commissioner's Report, the appellants each filed separate applications before the Federal Court under subsection 77(1) and section 91 of the OLA, seeking compliance with the Commissioner's advancement recommendations, lost wages and costs.

[28]       In essence, the appellants are alleging before the Federal Court that in the course of their employment with VIA they were denied access to positions covered by the Collective Agreement on the ground that they did not satisfy the bilingual requirements for those positions. In particular, the appellants are dissatisfied with the bilingual requirements for the Service Manager and Assistant Service Co-ordinator positions, both of which require bilingual skills to perform the duties and responsibilities set out in Appendix 9 of the Collective Agreement.

[29]       The CAW is not a party to the present proceedings and the appellants have not provided any explanation whatsoever as to why their complaints were not satisfactorily dealt with through the established grievance and arbitration process or if they ever attempted to do so.

[30]       VIA filed a motion before the Prothonotary and argued that the Federal Court did not have jurisdiction to hear the applications because the issues raised fell within the exclusive jurisdiction of the grievance arbitrator, in accordance with the mandatory grievance procedure set out in the Collective Agreement. In particular, VIA relied on section 56, subsection 57(1) and section 58 of the Code. The Prothonotary granted VIA's motion. That decision was appealed to the Federal Court and shortly thereafter the Commissioner was granted intervener status.

[31]       A Federal Court Judge reviewed the Prothonotary's decision and concluded that the Prothonotary "did not improperly exercise his discretion in striking out the application" on the ground that "the applicants have no chance of success in obtaining the relief which they seek in their originating notice of motion" and that the Prothonotary did not err in his conclusion that "the applicants' claims are in fact grievances which must be settled according to the terms of the Collective Agreement". For these reasons, the Judge dismissed the appeal.

[32]       Under rule 51 of the Federal Court Rules, 1998, SOR/98-106, an order of a prothonotary may be appealed by bringing a motion before a judge of the Federal Court. As the test is currently formulated, a discretionary order of a prothonotary should not be disturbed on appeal to a Federal Court judge unless: (a) a question raised in the motion is vital to the final issue of the case, or (b) an order is clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts (see Merck & Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (C.A.) at paragraph 19).

[33]       In the present appeal, the Federal Court Judge concluded that the Prothonotary did not improperly exercise his discretion in striking out the application. That decision must be upheld by this Court unless it was arrived at on a wrong basis or was plainly a wrong decision (see Jian Sheng Co. v. Great Tempo S.A., [1998] 3 F.C. 418 (C.A.) at paragraph 12, and approved in Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450 at paragraph 18).

[34]       While a proceeding under section 77 of the OLA is not an application for judicial review, it is governed procedurally by the rules applicable to applications under Part 5 of theFederal Court Rules, 1998, including applications for judicial review (see paragraph 300(b) of the Federal Court Rules, 1998; and see also Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 F.C.R. 276 at paragraph 15). It is well recognized that a motion to strike such applications should only be used in very exceptional circumstances. The Federal Court has the inherent jurisdiction to dismiss such applications in a summary manner only where the applications are so clearly improper as to be bereft of any possibility of success (see David Bull Laboratories at page 600). This is the yardstick against which the current appeals are to be measured.

[35]       In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada identified three possible outcomes when determining which of two possible tribunals should decide disputes that arise in the labour context. In the "concurrent" jurisdiction model both tribunals have jurisdiction and the labour dispute can be brought before either a labour arbitrator or the courts or other tribunals. In the "overlapping" jurisdiction model labour tribunals consider traditional labour law issues, while the courts or other tribunals retain jurisdiction over other employment matters. Finally, in the "exclusive" jurisdiction model, jurisdiction lies exclusively with either the labour arbitrator or the alternate tribunal.

[36]       In Weber, a flexible and contextual method was adopted to identify those disputes which are within the exclusive scope of the arbitrator's jurisdiction. At paragraph 52, McLachlin J. (as she then was) stated:

The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

The conclusion in Weber was that regardless of the legal characterization of the dispute, if the issue "arises under the collective agreement", then the labour tribunal has exclusive jurisdiction.

[37]       Further, in Allen v. Alberta, [2003] 1 S.C.R. 128, the Supreme Court of Canada again addressed the problem of identifying which disputes are within the scope of the arbitrator's jurisdiction and confirmed the adoption of "a flexible and contextual method which seeks to avoid formalistic classifications" (at paragraph 14). Referring to the principles set out in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704 and refined in Weber and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, LeBel J. states at paragraph 12 that:

In a nutshell, these cases stand for the principle that, in accordance with the legislative intent evidenced by the labour relations schemes implemented since the Second World War in Canada, ... , disputes arising out of the interpretation, application or violation of a collective agreement should be dealt with exclusively under the grievance procedure established in accordance with the agreement or the relevant labour legislation. As a general rule, provided though that they fall within the ambit of the collective agreement, such disputes should be disposed of by labour arbitrators and regular civil courts do not retain concurrent jurisdiction over them.

[38]       More recently, the question of whether the legislation confers exclusive jurisdiction on an arbitrator was framed as a two-step analysis (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185 (the Morin decision)). The first step requires an assessment of the relevant legislation and what it says about the arbitrator's jurisdiction and the second step requires a determination of whether the nature of the dispute, in its full factual context, falls within the exclusive jurisdiction of the arbitrator (see Morin at paragraphs 15 and 20).

The Morin Test - Step 1

[39]       Turning first to the Code, Parliament has armed federal labour arbitrators with broad powers concerning the interpretation, application, administration or alleged contravention of collective agreements affecting bargaining unit employees. Section 56 and subsection 57(1) of the Code provide:

[40]       These two provisions essentially provide that federal labour arbitrators are competent to resolve all disputes arising expressly or inferentially out of a collective agreement (see Allen at paragraph 15 and Weber at paragraph 54) and complement the wide powers of labour arbitrators as recognized by the Supreme Court of Canada. These include the power to grant Charter relief (see Weber at paragraphs 60 at 61) as well as relief relating to substantive rights and obligations under other employment-related statutes, such as human rights legislation (see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 at paragraphs 28 and 49).

[41]       Federal labour arbitrators also have the power to fashion relief similar to that available to the Federal Court under Part X of the OLA by virtue of paragraph 60(1)(a.1) of the Code, which reads as follows:

[42]       It is also noteworthy that while subsection 77(4) of the OLA confers upon the Federal Court the broad power to "grant such remedy as it considers appropriate and just in the circumstances", it is not exclusive. In particular, subsections 77(5) and 78(3) of the OLA point to a non-exclusive regime that allows for the enforcement of that statute in ways other than by a Part X court remedy. Those subsections read as follows:

[43]       Finally, subsection 58(1) of the Code dictates that decisions of federal labour arbitrators are not to be reviewed by the courts. It reads:

[44]       Taken together, these provisions of the Code and the OLA direct that federal labour arbitrators have the exclusive power to resolve the current disputes so as to oust the jurisdiction of the Federal Court with respect to matters concerning the interpretation, application, administration or alleged contravention of collective agreements.

The Morin Test - Step 2

[45]       Against this legislative backdrop, I must now turn to an examination of this dispute in its full factual context in order to fully and finally determine whether the essential character of these disputes is one over which Parliament intended federal labour arbitrators to have exclusive jurisdiction.

[46]       The appellants are members of the 'On-Board Services Employees' bargaining unit and are covered by the Collective Agreement, which establishes a promotion and nomination process for all unit members. The requirements for certain positions, such as bilingualism, and of working conditions, such as training, are in accordance with Appendix 6 and Article 16. These positions are filled in accordance with the bidding process for train assignments, as set out in Article 12. In her report, the Commissioner recognized this process by stating that the annual bidding process is largely, but not exclusively, based on the seniority principle, according to which positions are filled by qualified employees with the most years of service (see Appeal Book, Vol. I at page 74).

[47]       In their applications before the Federal Court, the appellants seek the enforcement of the Commissioner's recommendations. The relief sought is intended to force VIA to allow unilingual employees to apply for bilingual Service Manager positions on non-designated routes and to provide second-language training where needed; to assign unilingual employees to one of the two Assistant Service Co-ordinator positions on the Western Transcontinental train with second-language training; and to enable unilingual employees to apply for Assistant Service Co-ordinator positions on non-designated routes, again with second-language training.

[48]       If implemented, these recommendations could grant the appellants future promotions that will of necessity affect other employees in the bargaining unit who currently occupy these positions based on seniority. This will obviously give rise to other grievances to be heard by federal labour arbitrators. The complexity of this task was recognized by the Commissioner at the conclusion of her report:

The recommendations contained in this report are aimed at helping VIA Rail build upon the success of its hiring policy to date in a manner fully consistent with its linguistic responsibilities to both passengers and staff. We recognize that collective agreement considerations such as the bidding process for train assignments present certain challenges in implementing some of the recommendations. Given that most of the complainants are members of the union concerned, we hope that this investigation, which involved lengthy consultations with numerous employees, will assist VIA Rail in finding appropriate solutions. [Emphasis Added]

It is obvious from this conclusion that at the time of her report in May of 2002, the Commissioner recognized these disputes as matters best suited to internal resolution by VIA and the CAW due to the existence of the Collective Agreement and the obligations created thereunder.

[49]       The appellants also seek lost wages and pension benefits for VIA's alleged failure to allow their advancement in the workplace contrary to section 91 of the OLA, plus their costs. In applying for these remedies, the appellants are effectively asking the Federal Court to interpret and apply VIA's employment practices and policies as set out in the Collective Agreement and to make a determination as to whether they should have been promoted and granted monetary relief. Complaints of this nature are the everyday work of federal labour arbitrators and normally fall within their exclusive jurisdiction.       

[50]       Finally, in Morin, Chief Justice McLachlin spoke of determining which tribunal was the "better fit" for the dispute (at paragraph 30). In my analysis, the better fit is for these disputes to be dealt with by a federal labour arbitrator in accordance with the Collective Agreement, and not by the Federal Court pursuant to Part X of the OLA. The essence of the appellants' complaint against VIA is that they were each improperly denied access to positions covered by the Collective Agreement on the ground that they did not satisfy the bilingual requirements established for those positions and that they are now entitled to remuneration for lost wages and benefits due to their lack of advancement. These considerations point toward a single arbitrator dealing with individual grievances as being the better fit in the circumstances.

[51]       Overall, I cannot accept the Commissioner's submission that these disputes are about the operation of the OLA and the duties that are imposed on federal institutions such as VIA. As evidenced by the impact of the Commissioner's recommendations on the Collective Agreement and the remedies of promotion, lost wages, and benefits sought by the appellants, the essential character of the dispute, taken in its full factual matrix, is one arising out of the interpretation, application, administration or alleged contravention of the Collective Agreement.

[52]       Further, the Commissioner's argument that the Collective Agreement makes no provisions for individual employees to grieve the linguistic designation of certain positions is also not persuasive. The union is held to a duty of fair representation of the employees it represents (see Allen at paragraph 13 and Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207 at paragraphs 41-44) and this is not a situation akin to the one in Morin in which the union was, on the face of it, opposed in interest to the appellants.

[53]       In my analysis, this is a situation where the essential character of the disputes fall within a federal labour arbitrator's exclusive jurisdiction. Since the Federal Court does not have jurisdiction to deal with these matters, I must conclude that this is one of the exceptional circumstances contemplated in the David Bull Laboratories decision and that these applications should be dismissed in a summary manner as they are bereft of any possibility of success. (See also Bouchard v. Canada (Minister of National Defence) (1999), 187 D.L.R. (4th) 314 (F.C.A.) at paragraphs 25 and 26, where this Court determined that a motion to strike an application was valid upon a determination that the court had no jurisdiction to hear the appellant's application for judicial review with respect to the issue of constructive dismissal arising out of a collective agreement.)      

[54]       This analysis is specific to the provisions of this Collective Agreement (in particular Appendix 6) and the facts of this appeal. Other collective agreements which are silent on procedures for identifying bilingual requirements and for designating which specific positions require bilingual skills may well not oust the jurisdiction of the Federal Court and the remedies provided by the OLA. Each case will have to be reviewed on its facts.

[55]       I take comfort in this analysis from the conclusion reached by Binnie J. in the recent decision of 2005 SCC 30">Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] S.C.J. No. 28 (QL). There, the Court noted that a complaint of discrimination does not automatically lead to resolution of the dispute by the Canadian Human Rights Commission (see paragraph 93) and that "[A] grievance that raises a human rights issue is nevertheless a grievance for purposes of employment or labour relations" (at paragraph 95).

[56]       In this case, I am well satisfied that there is no basis for interfering with the decision of the Federal Court Judge, upholding the Prothonotary's conclusion that the applicants' claims are in fact grievances which must be settled according to the terms of the Collective Agreement.

[57]       The Commissioner viewed the issues in these appeals and the scope of Part X of the OLA in the federal labour law context as an important subject for our review. In advancing her arguments, the Commissioner voluntarily assumed the role of an active proponent for the appellants, who declined to file factums and present oral argument. The Commissioner also requested and received permission from this Panel to make reply argument.

[58]       In my view, based on the past conduct of the parties, this appeal is in the nature of a test case and is being primarily advanced by the Commissioner. In these circumstances, I would dismiss the appeals with one set of costs to VIA to be paid by the Commissioner both on appeal and before the Federal Court. Costs in both courts should be taxed in accordance with Tariff B, Column V.

                                                                                    (s) "B. Malone"               

                                                                                                      J.A.         

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS: A-216-04

                       A-208-04

                       A-210-04

(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED MARCH 18, 2004, DOCKETS NO. T-1280-02,T-1165-02, T-1167-02)

STYLE OF CAUSE:

A-216-04

BRIAN NORTON v. VIA RAIL CANADA INC. and COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

A-208-04

MARGARET TEMPLE v. VIA RAIL CANADA INC. and COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

A-210-04

BRENDA BONNER v. VIA RAIL CANADA INC. and COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

PLACE OF HEARING:                                 Winnipeg, Manitoba

DATE OF HEARING:                                   February 16, 2005

REASONS FOR JUDGMENT:                    Sharlow J.A.

CONCURRED IN BY:                                  Nadon J.A.

DISSENTING REASONS BY:                     Malone J.A.

DATED:                                                          June 1, 2005    

APPEARANCES:

SOLICITORS OF RECORD: