Date: 20020620
Docket: A-224-01
Montréal, Quebec, June 20, 2002
Coram: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
CARGILL LIMITÉE
Plaintiff
and
SYNDICAT NATIONAL DES EMPLOYÉS
DE CARGILL LIMITÉE (CNTU)
Defendant
JUDGMENT
The application for judicial review is allowed and the decision of the Canadian Industrial Relations Board on March 21, 2001 is set aside, with costs to the plaintiff.
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"Robert Décary"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020620
Docket: A-224-01
Neutral citation: 2002 FCA 269
Coram: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
CARGILL LIMITÉE
Plaintiff
and
SYNDICAT NATIONAL DES EMPLOYÉS
DE CARGILL LIMITÉE (CNTU)
Defendant
Hearings held at Montréal, Quebec on June 19 and 20, 2002.
Judgment from the bench at Montréal, Quebec on June 20, 2002.
REASONS FOR JUDGMENT OF THE COURT: NADON J.A.
Date: 20020620
Docket: A-224-01
Neutral citation: 2002 FCA 269
Coram: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
CARGILL LIMITÉE
Plaintiff
and
SYNDICAT NATIONAL DES EMPLOYÉS
DE CARGILL LIMITÉE (CNTU)
Defendant
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec
on June 20, 2002.)
NADON J.A.
[1] We are all of the view that the Canadian Industrial Relations Board ("the Board") could not, in an application for particulars made by the defendant, re-examine and vary the order made on June 23, 2000 regarding the applicability of s. 87.7(1) of the Canada Labour Code ("the Code") to the facts of the case at bar.
[2] There is no question that under s. 18 of the Code the Board could exercise that power provided the conditions for that section to apply were met.
[3] In the defendant's submission, the order by the Board on March 21, 2001 did not vary the order of June 23, 2000, it simply clarified the latter's scope. Section 87.7(3) of the Code allowed the Board to make any clarifications necessary to implement its order.
[4] On reading the order of June 23, 2000 and that of March 21, 2001, which the plaintiff is asking the Court to quash, it seems clear that the Board varied its order of June 23, 2000. This can be seen by comparing the second paragraph of the disposition in the order of June 23, 2000 with the wording of the disposition in the order of March 21, 2001.
[TRANSLATION]
Order dated June 23, 2000
(2) ensure that its unionized personnel, belonging to the applicant union, needed for docking, equipping and loading grain on any such ship, on its entry to and exit from the said harbour facilities, is assigned to those activities . . .
Order dated March 21, 2001
IN VIEW OF THE FOREGOING, with respect to para. 2 of the disposition, the words "unionized personnel . . . needed" mean:
- personnel required for docking and equipping grain ships, including all grain ships arriving at or departing from Cargill harbour facilities at Baie-Comeau, for loading or unloading;
- personnel required for all grain loading activities on any such ship, including all activities involving the moving or transportation of grain from its place of storage to loading.
FURTHER, for greater clarity, when a ship arrives for loading, the activities in question include preparing grain, moving and transporting it to the scale, weighing the grain and moving it to the appropriate pipes, opening the appropriate valves for loading the grain into the ship and, subsequently, the placement and balancing of the grain by tractor operators in the hold of the ship.
AND FURTHER, the maintenance personnel usually required for a loading activity shall also be summoned to work.
AND FURTHER, if a loading activity usually requires other unionized personnel, such personnel shall be summoned to work.
[5] This comparison inevitably leads to the conclusion that the Board extended the scope of its first order, as it completely revised inter alia the concept of "loading" in the order. In this connection, it is worth noting that the concept of loading, and its scope, was vigorously debated in connection with the defendant's application under s. 87.7(1) of the Code.
[6] The plaintiff's position, to be found in its written submissions of April 12, 2000, is that since only unlading operations are covered by s. 87.7(1), the concept of loading is to be given its full meaning, namely, loading the grain onto ocean-going ships and incidental operations performed on the bridge of such ships. These unlading operations exclude activities of the elevators, which including unloading grain from bulk carriers. According to the argument put forward by the plaintiff, grain-handling operations between warehouses and loading points are also excluded.
[7] According to the plaintiff, the purpose of s. 87.7(1) is to ensure the movement of Canadian grain, not of foreign grain, in a strike or lock-out. That explains inter alia why the unloading of foreign grain is not covered by s. 87.7(1).
[8] The defendant's position can be found in the written submissions also dated April 12, 2000. It is not surprising to see that the defendant disagreed completely with the plaintiff's position, and in particular with the operations covered by s. 87.7(1). In the defendant's submission, those operations are not limited to the loading of Canadian grain on ocean-going ships, but include all operations pertaining to the loading, unloading and handling of grain.
[9] In view of these two contradictory arguments, the Board on June 23, 2000 made its order limiting the operations subject to its order to those having to do with docking, equipping and loading grain on a ship. The order did not cover the unloading of bulk carriers or the handling of grain. On reading the order of June 23, 2000, the Court can only conclude that the Board opted for the plaintiff's argument. In these circumstances, how can it be said that the order of March 21, 2001 is not a variance of the order of June 23, 2000? In our opinion, such an argument can only fail.
[10] Relying on the Supreme Court of Canada's judgment in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, and on s. 87.7(3) of the Code, the defendant argued that the Board could re-examine the question regarding s. 87.7(1). We do not feel that s. 87.7(3) can be construed as the defendant suggested, namely that the Board could re-examine a question that had already been decided. The clear purpose of s. 87.7(3) is to allow the Board to dispose of and decide any question regarding the application of s. 87.7(1). That is what the Board did when it made its order of June 23, 2000. At the same time, the paragraph cannot authorize the Board to re-examine, quash or vary that order. To do this, reference must be made to s. 18 of the Code if that section can be applied.
[11] In Chandler, supra, Sopinka J., for the majority, discussed the application and scope of the functus officio rule in connection with decisions by administrative tribunals and recommended a flexible approach. At 861 and 862, Sopinka J. said the following:
[...]
As a general rule, once such a tribunal has reached a final decision with respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the re-opening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that the decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.
[12] It is worth noting in Sopinka J.'s remarks that:
(i) when the administrative tribunal has reached a "final" decision on a matter, it cannot revisit the matter inter alia because it has changed its mind or made an error;
(ii) the application of the functus officio rule should be flexible when the enabling legislation allows the tribunal to re-open the matter so it can fully exercise its jurisdiction;
(iii) if the tribunal has failed to dispose of a matter which was before it and which it was empowered to dispose of, it ought to be allowed to complete its statutory task;
(iv) if the tribunal had to select how it would dispose of the matter before it and chose a specific way of doing so, it cannot then reconsider the matter so as to arrive at another solution.
[13] We consider that as the Board opted for the plaintiff's argument, namely that the operations subject to s. 87.7(1) were limited to "unlading" operations, it could not in connection with an application by the defendant for particulars make another order varying the order made on June 23, 2000. Consequently, the Board made an error justifying the Court's intervention.
[14] Before concluding, it is worth noting the comments by Chouinard J.A. of the Quebec Court of Appeal in Commission scolaire Harricana v. Syndicat des travailleuses et travailleurs de l'enseignement du nord-est québécois, [1988] R.J.Q. 947, that if the purpose of an arbitral award is to define or clarify an arbitral award made previously, it cannot create broader rights than those resulting from the first award. Chouinard J.A. wrote the following for the Court of Appeal, at 948:
[TRANSLATION]
A "clarifying" award cannot in itself be an order to do or not do something and so cannot be a basis for contempt of court. Defining, clarifying or making known the meaning of an arbitral award previously made cannot create new and broader rights than those conferred by the initial award. Further, the actual wording used, like the reasons in support of the second award, do not in any way suggest an intention to create new obligations on the respondent school board.
In our opinion, the effect of the order of March 21, 2001 was to create new rights.
[15] Consequently, the plaintiff's application for judicial review will be allowed and the Board's order dated March 21, 2001 set aside. The plaintiff will be entitled to its costs.
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"Marc Nadon"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020620
Docket: A-224-01
Between:
CARGILL LIMITÉE
Plaintiff
and
SYNDICAT NATIONAL DES EMPLOYÉS
DE CARGILL LIMITÉE (CNTU)
Defendant
REASONS FOR JUDGMENT OF THE COURT
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FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-224-01
STYLE OF CAUSE: CARGILL LIMITÉE
Plaintiff
and
SYNDICAT NATIONAL DES EMPLOYÉS DE CARGILL LIMITÉE (CNTU)
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARINGS: June 19 and 20, 2002
REASONS FOR JUDGMENT OF THE COURT: NADON J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
DATE OF REASONS: June 20, 2002
APPEARANCES:
Jean-Pierre Belhumeur FOR THE PLAINTIFF
Réjeanne Choinière FOR THE DEFENDANT
SOLICITORS OF RECORD:
Stikeman Elliott FOR THE PLAINTIFF
Montréal, Quebec
Laplante et associés FOR THE DEFENDANT
Montréal, Quebec
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