Docket: A-6-15
Citation:
2015 FCA 243
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CORAM:
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PELLETIER J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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LISTUGUJ
MI'GMAQ FIRST NATION COUNCIL,
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Applicant
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and
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PUBLIC SERVICE
ALLIANCE OF CANADA,
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
November 4, 2015).
GLEASON J.A.
[1]
In this application for judicial review, the
applicant seeks to set aside a portion of the remedial order contained in the December
10, 2014 decision of the Canada Industrial Relations Board [the CIRB or the
Board]. In its decision, the CIRB determined that the applicant breached the
duty to bargain in good faith, set out in paragraph 50(a) of the Canada
Labour Code, R.S.C. 1985 c. L-2 [the Code], in failing to
communicate its reasons for the refusal to ratify a tentative agreement until
the Board hearings and, even then, in adding a central reason for the refusal
only in the evidence of one of its witnesses, which was given several months
after the hearing commenced. This additional reason concerned an apparent
desire by the applicant’s Chief and Band Council to obtain the authority to summarily
dismiss any bargaining unit member when a member of the First Nation was available
and qualified for employment in a bargaining unit position.
[2]
The CIRB issued a detailed remedial order that,
among other things, required the applicant to provide the respondent with a
written explanation of its position on the articles in the tentative agreement that
it objected to and with its proposals for these articles, that the parties
thereafter meet and resume bargaining, and that, if the parties did not reach agreement
on article 5 related to Band preference after 60 days, the respondent could
refer the matter to the Board, which would then issue an order pursuant to
paragraph 99(1)(b.1) of the Code to provide for the settlement of
this article via a binding method of resolution.
[3]
The standard of review applicable to the Board’s
decision, including the remedy it selected, is reasonableness: Royal Oak
Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, [1996]
S.C.J. No. 14 (QL) at paragraph 36 [Royal Oak].
[4]
In its Memorandum, the applicant submits that
the portion of the Board’s order providing for the settlement of article 5 of
the collective agreement via a binding method of resolution (if necessary) is
unreasonable for four reasons: first, because it contradicts the objects and
purposes of the Code and represents an unwarranted interference with the
free collective bargaining; second, because there is no rational connection
between the complaint, the breach of the duty to bargain in good faith and the
impugned portion of the order; third, because the portion of the order the
applicant objects to violates the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11; and, finally, because the impugned remedy is
punitive in nature.
[5]
We find no merit in any of these arguments.
[6]
The Charter claim may be dismissed at the outset
as the applicant failed to provide the requisite notice under section 57 of the
Federal Courts Act, R.S.C. 1985, c. F-7, failed to raise the issue
before the CIRB and there is virtually no evidence in the record before us that
relates to the Charter claim.
[7]
As concerns the other grounds, paragraph 99(1)(b.1)
of the Code affords the CIRB jurisdiction to direct a method of binding
arbitration to resolve one or more terms in dispute where it finds a breach of
the duty to bargain in good faith and “considers that [the
remedy] is necessary to remedy the contravention or counteract its effects”.
This provision affords the CIRB broad discretion to issue precisely the type of
order that it issued in this case. Moreover, as Justice Cory writing for the
majority of the Supreme Court noted in Royal Oak at paragraph 58, in
crafting remedies, the Board exercises “its expert knowledge
and wide experience”. A remedial determination like the one made in this
case is therefore entitled to considerable deference.
[8]
Here, we find nothing unreasonable in the
impugned portion of the remedial order issued by the CIRB, believe that it is
tied to the breaches the Board found and, as opposed to impairing collective
bargaining, might actually have spurred the parties to reach agreement during
the 60 days they were given. More specifically, as the respondent rightly
notes, the applicant’s position on article 5 is highly unusual and is one that
it would be difficult for any trade union to ever agree to. Knowing this, and
given the prospect of binding arbitration failing agreement, the remedial order
issued by the Board may well have facilitated compromise and thus furthered the
process of collective bargaining. In addition, the order was in no way punitive
as it was directed towards the applicant’s conduct in raising a new and highly
contentious issue as an impediment to agreement, months after the tentative agreement
was concluded.
[9]
While the Board’s reasons might have provided a
fuller explanation of why it decided to exercise its discretion under paragraph
99(1)(b.1) of the Code, this does not render its remedial order
unreasonable as reasons need not be perfect and must be read in light of the
record before the Board, as the Supreme Court noted in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708. On the facts before the Board, there was ample
basis for the remedy it awarded. The impugned portion of the Board’s order is
therefore reasonable.
[10]
We accordingly would dismiss this application
with costs.
"Mary J.L. Gleason"
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