Date: 20040915
Docket: A-273-03
Citation: 2004 FCA 297
PRESENT: EVANS J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervener)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervener)
Heard at Ottawa, Ontario, on September 7, 2004.
Order delivered at Ottawa, Ontario, on September 15, 2004.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20040915
Docket: A-273-03
Citation: 2004 FCA 297
PRESENT: EVANS J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervener)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervener)
REASONS FOR ORDER
EVANS J.A.
A. INTRODUCTION
[1] This is a motion by VIA Rail Inc. for a stay of Decision No. 230 of the Canada Industrial Relations Board and of the order of this Court in VIA Rail Inc. v. Cairns, 2004 FCA 194, dismissing applications by VIA and the Brotherhood of Locomotive Engineers ("BLE") for judicial review of the Board's order. The motion requests stays pending the disposition by the Supreme Court of Canada of VIA's application for leave to appeal and, if leave is granted, the Court's disposition of the appeal.
[2] The motion is supported by the BLE and opposed by the respondents, George Cairns and other conductors ("the conductors"), and the United Transportation Union ("UTU"), which had formerly represented the conductors employed by VIA. No position was taken on the motion by either the Board or Canadian National Railway Company ("CN").
[3] At the hearing of the motion, counsel for VIA amended the notice of motion by limiting the stay requested to the date of the Supreme Court of Canada's disposition of the leave to appeal, which VIA finalised on August 16, 2004. Counsel for the BLE expressed her agreement with this amendment. Counsel for VIA anticipated that the Supreme Court would probably dispose of the leave application by February or March 2005 at the latest. Stays were thus requested for five or six months from the date when this motion was heard. If the Supreme Court grants the leave application, VIA can decide whether to seek a further stay pending the Court's disposition of the appeal itself.
B. THE BACKGROUND
[4] In Decision 230, the Board purported to end a protracted labour dispute, principally between VIA and the BLE on the one hand, and, on the other, a group of conductors (including Mr. Cairns) employed by VIA. The dispute arose out of the amalgamation of two bargaining units, represented by different unions, comprising locomotive engineers and conductors, and the subsequent certification of the BLE, which had formerly represented the locomotive engineers, to represent the single new bargaining unit of operating engineers. The position of conductor was abolished in order to enable VIA to reduce its operating costs.
[5] The conductors complained that the BLE breached its duty fairly to represent the interests of the conductors when it negotiated provisions with VIA to deal with the consequences of creating the new position of operating engineer and abolishing the separate trades of locomotive engineer and conductor. The provisions in dispute were contained in the Crew Consist Adjustment Agreement ("CCAA"), which was appended to the collective agreement between VIA and the BLE. The disputed provisions dealt with the eligibility requirements for a conductor to retrain as an operating engineer, seniority between former locomotive engineers and conductors who qualified as operating engineers, and "flow back" rights under a special agreement negotiated between VIA, the UTU and CN.
[6] In a decision rendered on October 22, 1999 ("Decision 35"), the Board upheld the conductors' complaint that the BLE had breached its duty of fair representation and ordered the parties to renegotiate the disputed items in the CCAA. The Board also ordered that the conductors be given an equal voice in the bargaining process and that a professional be appointed to represent their interests. The Board expressly retained jurisdiction to implement its order.
[7] VIA and the BLE made an application for judicial review to this Court challenging the legality of the Board's order in Decision 35. The application was dismissed on May 2, 2001: VIA Rail Inc. v Cairns, [2001] 4 F.C. 139, 2001 FCA 133; application for leave to appeal dismissed, [2001] C.S.C.R. no. 338.
[8] The conductors returned to the Board in 2002 and asked it to exercise the jurisdiction it had retained to implement the remedial order in Decision 35 by holding hearings to determine the content of the disputed items of the collective agreement. They alleged that, in the time that had elapsed since the Board rendered Decision 35, the parties had failed to reach an agreement on any of the disputed items, that a mediation-arbitration process ordered by the Board, with the parties' consent, had made no significant progress in the times set by the Board, and that a new agreement on the disputed items, negotiated solely between VIA and the BLE without consultation with the conductors or their representative, was not materially different from the impugned provisions of the CCAA.
[9] In Decision 230, the Board imposed terms on the parties in the exercise of its remedial powers under subsection 99(2) of the Canada Labour Code, R.S.C. 1985, c. L-2, with respect to the three disputed issues in the CCAA. VIA and the BLE applied to this Court for judicial review of Decision 230. The Court unanimously held that the legality of the remedy awarded by the Board was reviewable for patent unreasonableness and, by a majority (Rothstein and Evans JJ.A.; Pelletier J.A. dissenting), that, on its highly exceptional facts, Decision 230 was not patently unreasonable.
[10] Finally, I should note that in August 2003, Rothstein J.A. had granted a stay of Decision 230 pending this Court's disposition of the expedited application for judicial review. The conductors had not opposed that stay. Counsel for VIA advised me that no steps have been taken to enforce the Board's order in Decision 230 since the Court released its decision dismissing the applications for judicial review by VIA and the BLE, and the stay granted by Rothstein J.A. expired.
C. ISSUES AND ANALYSIS
Issue 1: Does this Court have jurisdiction to grant the stays requested?
[11] Counsel for VIA says, and counsel for the conductors agrees, that the Court has jurisdiction under subsection 65.1(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to grant the stays requested pending an application to the Supreme Court for leave to appeal from a decision of this Court.
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65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
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65.1 (1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la partie qui a signifié et déposé l'avis de la demande d'autorisation d'appel, ordonner, aux conditions jugées appropriées, le sursis d'exécution du jugement objet de la demande.
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[12] A stay of the order of this Court is not strictly necessary, because it simply dismissed a challenge to the Board's order. VIA's concern at this stage is to prevent the order of the Board from being implemented prior to the disposition of the leave application. However, subsection 65.1(1) only authorizes a court appealed from to "order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought". Read literally, this provision does not authorize this Court, as the court appealed from, to stay the order of the Board, even though the Board's order is the subject both of this Court's judgment, from which leave to appeal is sought, and of the appeal itself.
[13] Nonetheless, it would seriously impede the Court's effective exercise of the jurisdiction to stay its own orders under subsection 65.1(1) if it could not also stay the order of the administrative tribunal that underlies the judgment of the Court and the appeal to the Supreme Court. Consequently, when granting a stay of its own order, the Court may also stay the order that was the subject of its judgment and that will be reviewed by the Supreme Court if it grants leave to appeal. I say this even though, on the facts of this case, a stay of this Court's order dismissing the application for judicial review of Decision 230 is otherwise unnecessary to maintain the status quo pending the disposition of the leave to appeal.
[14] In the event that I am mistaken in thinking that subsection 65.1(1) confers jurisdiction on the Court to stay an order that underlies both the judgment from which leave to appeal has been sought and the appeal itself, on the facts of this case jurisdiction is conferred by paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, which provides:
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50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
...
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
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50. (1) La Cour d'appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:
...
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
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[15] In New Brunswick Electric Power Commission v. Maritime Electric Company Limited., [1985] 2 F.C. 13 (C.A.), this Court held that the reference to "proceedings" in paragraph 50(1)(b) was not limited to proceedings before the Court. However, it also held that the paragraph did not authorize the Court to stay the execution of the order of the National Energy Board that was the subject of an appeal to the Court, pending the disposition of that appeal. The Court reasoned that, having issued its order, the Board had nothing more to do. Further proceedings were not contemplated to execute the order of the Board. There were therefore no "proceedings" still before the Board to be stayed: an order of the Board was not itself a "proceeding".
[16] In my opinion, the facts of the present case are distinguishable from those in New Brunswick Electric. In particular, the Board in our case expressly retained jurisdiction over any question arising from its order and further proceedings were clearly contemplated to enable the Board to deal with outstanding issues. For example, no decision has yet been made on the allocation between VIA and the BLE of the financial award made against them jointly by the Board. In these circumstances, paragraph 50(1)(b) authorizes the Court to stay the Board from taking steps to execute or otherwise implement its order.
[17] Hence, since this Court has jurisdiction to stay its and the Board's orders, I must consider whether VIA has satisfied the three-part test established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, for determining when a court should exercise its jurisdiction to grant a stay.
Issue 2: Does VIA's application for leave to appeal raise a "serious issue"?
[18] Whether VIA has demonstrated that its application for leave to appeal to the Supreme Court raises a "serious issue" for the purpose of the RJR-Macdonald test must be determined by reference to subsection 40(1) of the Supreme Court Act, which governs that Court's grant of leave applications: Merck & Co. Nu-Pharm Inc. (2000), 255 N.R. 383 (F.C.A.).
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40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
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40. (1) Sous réserve du paragraphe (3), il peut être interjeté appel devant la Cour de tout jugement, définitif ou autre, rendu par la Cour d'appel fédérale ou par le plus haut tribunal de dernier ressort habilité, dans une province, à juger l'affaire en question, ou par l'un des juges de ces juridictions inférieures, que l'autorisation d'en appeler à la Cour ait ou non été refusée par une autre juridiction, lorsque la Cour estime, compte tenu de l'importance de l'affaire pour le public, ou de l'importance des questions de droit ou des questions mixtes de droit et de fait qu'elle comporte, ou de sa nature ou importance à tout égard, qu'elle devrait en être saisie et lorsqu'elle accorde en conséquence l'autorisation d'en appeler.
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[19] Thus, VIA must establish that it is reasonably arguable that the Supreme Court may conclude that "any question involved therein [that is, in the case sought to be appealed] is, by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law involved in that question one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it".
[20] In my opinion, it is quite conceivable that the Supreme Court of Canada may grant VIA leave to appeal on the question of whether this Court erred in concluding that the Board's order was not patently unreasonable, even though the order in question imposed terms on the parties to which neither had ever agreed, and made VIA liable to pay compensation in a proceeding in which it had not been found to have breached the Canada Labour Code. The "serious issue" test is relatively undemanding and, in my view, VIA has met it, despite the highly unusual and particular nature of the factual context in which the Board granted its impugned remedial order.
[21] Counsel for the conductors argued that there was no serious issue because the remedy awarded in Board Decision 230 arose directly out of Decision 35, which was upheld by this Court and leave to appeal was refused by the Supreme Court of Canada. In other words, the issues raised by VIA in its leave application have already been decided against it by both this Court and the Supreme Court.
[22] I cannot agree. It is true that the Board issued Decision 230 by virtue of the jurisdiction that it expressly retained to implement Decision 35. However, Decision 230 imposed substantive obligations on the parties that went significantly beyond the essentially procedural duties imposed on the parties by Decision 35 respecting the renegotiation of the disputed provisions in the CCAA.
[23] In my opinion, the fact that this Court found the obligations imposed by Decision 35 not to be patently unreasonable is far from determinative of whether the Supreme Court would take the same view of the imposition of terms and the award of the monetary remedies in Decision 230. Given the unusual nature of the remedies ordered in Decision 230 and the limitation thereby imposed on free collective bargaining, and the dissenting reasons of Pelletier J.A., it is to my mind reasonably arguable that the Supreme Court would consider the case to involve questions of public importance.
Issue 3: If a stay is refused, will VIA suffer "irreparable harm"?
[24] The affidavit submitted by VIA to support its earlier motion for a stay pending this Court's disposition of the application for judicial review was sufficient to persuade Rothstein J.A. that there was evidence of irreparable harm was also included in the materials before me. Although the conductors and the UTU had not opposed the grant of that stay, the affidavit sworn in opposition to this motion does not seriously challenge much of the contents of the affidavits filed on behalf of VIA, including the affidavit previously considered by Rothstein J.A. Indeed, at the hearing of the motion, counsel for the conductors largely confined his oral submissions to the "serious issue" question.
[25] I am satisfied that VIA has provided sufficient evidence to establish that the implementation of Decision 230, and the unwinding of it if the appeal to the Supreme Court were successful, would involve VIA in considerable financial expenditures that would likely be irrecoverable, cause serious disruption to labour relations and effectively impede VIA's ability to run its business, to the detriment of the travelling public. In my opinion, these circumstances constitute irreparable harm for the purpose of the second limb of the test in RJR-MacDonald.
[26] It is true that, in the four and a half months since this Court dismissed VIA's application for judicial review, neither the Board nor the conductors have taken any steps to enforce Decision 230. Nonetheless, in the absence of an undertaking from counsel that the conductors would not move for enforcement before the disposition of the leave application, the fact that they have not so moved to date does not mean that they will not do so in the future.
Issue 4: Does the balance of convenience favour the grant of a stay?
[27] The question here is whether the harm that VIA is likely to suffer if no stay is granted outweighs the prejudice to the conductors if a stay is granted. In his written submissions, counsel for the conductors emphasised the hardship likely to be suffered by many of the intended beneficiaries of Decision 230, especially given the duration of the underlying dispute and VIA's role in it, and the ageing nature of the work force.
[28] However, counsel's submissions were framed on the assumption that VIA was seeking a stay until, if leave to appeal is granted, the Supreme Court decides the merits of the appeal, which could be two years from now. In my opinion, by amending the notice of motion so as to request a stay only until its leave application is dealt with, VIA has drawn most of the force from the respondents' position on the balance of convenience.
[29] In my opinion, any prejudice likely to be suffered by the conductors in approximately the next five or six months does not outweigh the irreparable harm that VIA is likely to sustain if Decision 230 is implemented and is then set aside by the Supreme Court. In the event that the Board's order remains in effect, at least some of the further prejudice suffered by the conductors as a result of the stay will be accounted for by increases to the monetary awards flowing from Decision 230.
D. CONCLUSIONS
[30] For these reasons, VIA's motion as amended is granted, and Decision 230 of the Board and the order of this Court upholding that Decision are stayed pending the disposition by the Supreme Court of Canada of VIA's application for leave to appeal. Costs will be in the cause.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-273-03
STYLE OF CAUSE: VIA RAIL CANADA INC. v. GEORGE CAIRNS ET AL.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 7, 2004
REASONS FOR ORDER BY: Evans J.A.
DATED: September 15, 2004
APPEARANCES:
Mr. Jean H. Lafleur, Q.C. for the Applicant
Mr. John Campion
Ms. Louise Béchamp
Mr. Robert J. Cooper
Mr. Michael Church for the Respondents, George Cairns and United Transportation Union
Ms. Deborah J. Cooper for the Respondent, Brotherhood of Locomotive Engineers
SOLICITORS OF RECORD:
Fasken Martineau Dumoulin LLP for the Applicant
Toronto, Ontario
Caley Wray for the Respondents, George Cairns
Toronto, Ontario and United Transportation Union
Shield & Hunt for the Respondent, Brotherhood of
Ottawa, Ontario Locomotive Engineers
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