Docket:
A-196-14
Citation: 2015 FCA 84
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CORAM:
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GAUTHIER J.A.
RYER J.A.
SCOTT J.A.
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BETWEEN:
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JONATHAN BRADFORD
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Applicant
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and
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NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS' UNION OF CANADA (CAW-CANADA)
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Respondents
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Mr. Bradford (the applicant)
seeks judicial review of the decision of the Canada Industrial Relations Board
(the Board) (2014 CIRB 716). The Board dismissed his application to reconsider
the Board’s decision (2013 CIRB 696) dismissing his application for a religious
exemption from belonging to a union and paying dues pursuant to subsection
70(2) of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
[2]
Before turning to the
factual background and the issues before us, it is important to keep in mind what
is not in issue in this application. Indeed, although the sincerity of the
applicant’s religious beliefs was a factual issue to be assessed by the panel
which initially heard his application regarding whether an exemption should be
granted (the Original Panel of the Board), the applicant did not argue that
there was a violation of section 2(a) of the Canadian Charter of Rights and
Freedoms (the Charter), which protects freedom of religion. This was
made very clear to us at the hearing. Nor is this application about the
validity of the test to be applied in determining whether to grant an exemption
under subsection 70(2) of the Code.
[3]
In his memorandum, the
applicant framed the issues before this Court as being whether or not the Original
Panel breached procedural fairness, whether the Original Panel failed to appropriately
assess the sincerity of his objection based on his religious beliefs, and whether
the Reconsideration Panel of the Board failed to balance the relevant Charter
value (section 2(a)) with the statutory objectives of the Code (Doré v.
Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] at
paragraph 58).
[4]
However, as will be
explained herein, it became very clear at the hearing that this application is
basically about whether the Reconsideration Panel could reasonably conclude
that there was enough evidence to support the Original Panel’s decision.
[5]
In my view, this conclusion
was open to the Reconsideration Panel and I have not been persuaded that it
made any reviewable errors that would justify this Court’s intervention.
I.
BACKGROUND
[6]
The applicant has been
employed as an air traffic controller with NAV CANADA since May 2010. Pursuant
to the terms and conditions of employment outlined in the collective agreement
between his employer and the National Automobile, Aerospace, Transportation and
General Workers’ Union of Canada (CAW-CANADA), he is required to be a union
member and has indeed both been a member and paid the requisite dues since
September 2010.
[7]
The applicant is a Protestant
Reformed Christian. Although he wandered from his religious upbringing between
1996 and 2011, he has since re-engaged with his faith.
[8]
In June 2012, he was
informed by a colleague and friend, Mr. Tomkinson, that CAW-CANADA had taken a
pro-choice position on abortion, issuing a press release and publicly
supporting some women’s organizations. On June 26, the applicant sent an email
to his union president protesting CAW-CANADA’s actions on the basis that the
union is forcing him to financially support “the
advocacy of child sacrifice”. After exchanging further emails with CAW-CANADA’s
president, including one where he states that he “will
be working actively to ensure that [his] local 5454 separates from the CAW as
quickly as possible”, the applicant filed, on or around July 27, 2012,
an application with the Alberta Labour Relations Board (the first application).
In this application, the applicant asked that his union dues be redirected for
religious reasons to a charity, pursuant to section 29 of the Alberta Labour
Relations Code, R.S.A. 2000, c. L-1 because of CAW-CANADA’s position on
abortion. He was promptly advised that he had filed in the wrong forum, and
ought to file his application with the Board.
[9]
After conducting legal and
religious research and speaking to family members, on August 24, 2012, the
applicant filed an application with the Board under subsection 70(2) of the
Code (the second application) for a religious exemption from union membership
and the payment of union dues. In the said application and the material filed
in support thereof, the applicant explains that having learned through his
research that unions have the legal right to make policy statements on social,
moral, and religious issues on behalf of their members, he had no choice but to
object to membership in any union.
[10]
In his second application, the
applicant made very clear that he could not remain a member of CAW-CANADA, even
if it were not taking a stand on abortion. He provided two reasons for his
position: first and foremost, that being a union member would “yoke” or bind him to other people who are
non-believers; and second, that unions place the focus on representing the
employees, while his religious beliefs based on biblical teachings tell him that
he must submit to the employers’ God-given authority. In effect, he believes
that he must work for God first, then the employer, and then himself (Appeal
Book, at pages 83 and 85).
[11]
The Original Panel noted in
its decision that the applicant attributed his change of position between the
first and the second application in a mere matter of weeks to a progression in
his religious views resulting from the religious and legal research he had
conducted in the interim (Original decision, at paragraphs 35-36). It is during
this period that he would have learned that CAW-CANADA, and in fact any union,
had the legal right to take positions on social, moral, and religious issues.
[12]
However, the Original Panel
also found that in his evidence, the applicant gave sparse details about this “key part” of his case. It held that it had some
difficulty accepting the applicant’s explanation (Original decision, at
paragraphs 35-37). The Original Panel applied the test commonly referred to as the
Barker/Wiebe test, which both parties acknowledged was the proper approach
to applications under subsection 70(2) of the Code (Original decision, at
paragraphs 27-28). The Original Panel concluded that the applicant had not
convinced it of the sincerity of his objection to trade union membership per
se. He had failed to establish that he had not rationalized his objection
to unions on religious grounds after becoming aware of the provisions of the
Code and the Board’s jurisprudence (Original decision, at paragraphs 30 and 41).
[13]
The applicant could have challenged
this decision by way of judicial review, but chose not to. Instead, on October
25, 2013, he filed an application for reconsideration. The Reconsideration
Panel summarizes the basis of his application as follows at paragraph 24 of its
decision:
The applicant in this matter has sought reconsideration of
the decision in RD 696 on the grounds that the Board failed to respect the
principles of natural justice by allegedly basing its decision on assumed facts
and facts not in evidence; that the decision was erroneous in law as the Board
misapplied the test to determine whether or not the applicant met the test for
religious exemption; that the decision was erroneous in law in that the Board
assumed the role of arbiter of religious dogma; that the decision was erroneous
in law in that the Board failed to consider and follow the Supreme Court of
Canada’s jurisprudence, [Syndicat Northcrest v. Amselem, 2004 SCC 47,
[2004] 2 S.C.R. 551[Amselem]], and that the Barker/Wiebe test is not
reflective of the legislature’s intent.
[My addition in bold]
[14]
The applicant confirmed that
the Reconsideration Panel had addressed each of the grounds he had raised, but
noted that it had erred in dismissing them all. In order to avoid repetition, I
will summarize the Reconsideration Panel’s views on each issue in the course of
my analysis.
II.
ISSUES AND STANDARD OF
REVIEW
[15]
I have already summarized
the issues before us in paragraph 3 above. However, I must add a few comments.
[16]
Although in his memorandum
the applicant lists only four issues (paragraphs 24-27), many of his written
submissions do not, in reality, address these issues. For example, under the
heading “The Barker/Wiebe test” (paragraphs
45-79), the applicant is actually challenging the reasonableness of the
decision of the Original Panel, a decision that is not under review before us (Canadian
Airport Workers’ Union v. Garda Security Screening Inc., 2013 FCA 106,
[2013] F.C.J. No. 440 at paragraph 3; Lamoureux v. Canadian Air Line Pilots
Assn., [1993] F.C.J. No. 1128 (F.C.A.) at paragraph 2). The reasonableness
of the decision of the Reconsideration Panel including its findings at
paragraphs 27 to 34 will be discussed as a whole based on the submissions to
the Reconsideration Panel when dealing with the more limited issue of the
application of Doré (Applicant’s memorandum, at paragraph 26).
[17]
Also, as the applicant’s
memorandum includes other submissions that warrant few comments, I will
concentrate on the main arguments presented at the hearing.
[18]
Apart from proper questions
of procedural fairness which are reviewed on the correctness standard, all the
other issues before us are subject to the reasonableness standard. This is not
contested. However, and as will become evident under the subheading “The alleged breaches of procedural fairness”, the
arguments characterized by the applicant as matters of procedural fairness are
not in fact directed at that doctrine.
III.
ANALYSIS
A.
The alleged breaches of
procedural fairness
[19]
The first issue before us is
whether the Reconsideration Panel failed to consider that the Original Panel
had breached the principles of natural justice by relying on assumed facts and
facts not in evidence (Applicant’s memorandum, at paragraph 25). This was also the
first issue put before the Reconsideration Panel. It held that there was no
such breach because the evidence before the Original Panel was sufficient to
allow it to draw the conclusions and to make the decisions that it did.
[20]
At the hearing before us,
the applicant’s counsel submitted that there was no evidence that the applicant
rationalized his objection to unions on religious grounds after being made
aware of the provisions of the Code (Original decision, at paragraph 30) and of
the Board’s jurisprudence (Original decision, at paragraph 38). In his view, the
Original Panel had no choice but to accept the applicant’s uncontradicted testimony.
I cannot agree.
[21]
It is indeed rare for a
party to admit having rationalized his or her objection as mentioned above. In
most cases, such a finding of fact will necessarily have to be inferred from
the other facts in evidence before the Board. The Reconsideration Panel clearly
understood this. Thus, the question becomes whether there was evidence
supporting the Original Panel’s inference.
[22]
The applicant acknowledged
at the hearing that there were clear differences between the grounds on which
his first and second application were based. There was documentary evidence
establishing what the applicant objected to on religious grounds prior to the
first application, in the first application (Original decision, at paragraph
10), and in the second application. When asked to specify exactly why the
inference referred to above was not available to the Original Panel on the
facts before it, the applicant’s lawyer pointed to paragraph 38 of the original
decision and stated that there was no evidence on which the Original Panel
could rely to say that the applicant’s research between the filing of his first
and second applications per se, included a review of the Board’s
jurisprudence on the application of subsection 70(2) of the Code.
[23]
However, as noted by the Original
Panel at paragraph 38 of its decision, it is apparent from the applicant’s
second application (Appeal Book, at pages 85-86), which he prepared himself, that
he reviewed decisions of the Board and was well aware of the criteria used to determine
whether to grant an exemption under subsection 70(2). Indeed, he expressly
cites two decisions of the Board and then proceeds to argue why he meets “the original criteria set out in the case of Richard Barker
[1986]”.
[24]
In the circumstances, there was
no breach of procedural fairness or natural justice. The applicant did give
another explanation as to why his objection changed from one premised in the
payment of union fees to the CAW-CANADA (first application) to one opposing
membership in all unions (in the second application), but it is clear that his
explanation was not found to be the most probable one (Original decision, at paragraph
38). The Original Panel’s role was to weigh the applicant’s viva voce
evidence in the context of all the other evidence before it. When acting in its
fact-finding capacity, the Board is entitled to deference. I am satisfied that
the issue here cannot be characterized as a breach of procedural fairness.
[25]
The applicant also argues
that the Reconsideration Panel failed to consider that the Original Panel
breached principles of natural justice by failing to properly understand his
position (Applicant’s memorandum, at paragraph 25).
[26]
The Reconsideration Panel
could not err in this respect, as this argument was never raised before it.
This was confirmed at the hearing before us. Moreover, this submission is unfounded.
[27]
Indeed, the applicant asserts
that neither panel understood his position as to why, in a relatively short
period of time (July 27 to August 24, 2012), he changed his objection from one
directed to the payment of union dues to CAW-CANADA to one directed to
membership in all unions.
[28]
The applicant made his
position crystal clear in his written submissions, particularly in his reply to
CAW’s submissions to the Original Panel on his application (Appeal Book, at pages
123-126) and the trier of fact is presumed to have considered all the evidence
before it (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at
paragraph 46),
[29]
Furthermore, at paragraphs
12, 16, 17 and 20 of its decision the Original Panel accurately described the
position of the applicant as to what changed between his first and his second
application.
[30]
In fact, the only argument offered
to support the applicant’s position on this point is really that if the panels
had understood his position and evidence, they could not have concluded as they
did. Here again, this submission goes to the reasonableness of the substantive
decision. There was no breach of procedural fairness.
B.
The challenge to the first
requirement in the Barker/Wiebe test.
[31]
As all the other arguments raised
before us at the hearing go to the reasonableness of the Reconsideration Panel’s
decision, I will now deal with the issue described at paragraph 27 of the
applicant’s memorandum: does the Barker/Wiebe test require an applicant
to object to membership in all unions?
[32]
The Reconsideration Panel
refused to deal with the applicant’s challenge to the first criteria of the Barker/Wiebe
test because he had not raised the issue before the Original Panel. In its view,
it was thus not a proper ground for “reconsideration”.
The applicant says that the Board should have dealt with this pure question of
law. I disagree.
[33]
The Reconsideration Panel exercised
its discretion as to what argument it would deal with on this reconsideration.
Its decision was particularly appropriate when one considers that the applicant
acknowledged before the Original Panel that the Barker/Wiebe test was
the proper test to apply. There was nothing preventing him from raising this
issue at that time. Also, this new issue could not be determinative of the
reconsideration, given that the application to the Board was entirely based on
the fact that the applicant’s religious beliefs precluded him from being a
member of any and all unions.
[34]
Although this Court has a
certain discretion to entertain new arguments, in my view, it should not be
exercised here. In addition to what I have already said, it would be inappropriate
for this Court to determine a question of law in respect of which the Board
would be entitled to deference without the benefit of the Board’s analysis (Harakat
v. Canada (Citizenship and Immigration), 2012 FCA 122 at paragraph 148; Pardhan
v. Coca-Cola Ltd., 2003 FCA 11 at paragraph 32). This rationale is
especially relevant here as the applicant’s argument could potentially change a
long standing practice of the Board (Reconsideration decision, at paragraph 27).
[35]
It may be that the applicant
can file a new application on more limited grounds, in which case he could
challenge the Barker/Wiebe test and raise other constitutional arguments
if he so wished. But this cannot be done at this stage of the process: judicial
review is to be conducted on the basis of the record that was before the
administrative decision-maker.
C.
Reasonableness of the
decision
[36]
The Reconsideration Panel
noted that the Original Panel had correctly set out the Barker/Wiebe criteria
at paragraph 27 of its decision. It held that the Original Panel reached a
reasonable conclusion based on the evidence before it. It based this conclusion
on two main grounds.
[37]
First, the crux of the
decision under reconsideration was that the applicant had neither persuaded the
Original Panel (on the balance of probabilities) of his sincerity, nor that he
had not simply rationalized his objections to unions after becoming aware of
the provisions of the Code and the Board’s jurisprudence.
[38]
Second, the Original Panel’s
assessment of the applicant’s sincerity based on viva voce evidence, a
factual matter, is entitled to deference and was buttressed by the evidence
before the Original Panel regarding his changed basis for objecting in his
first and second applications and the short period of time between those
applications.
[39]
As mentioned earlier, the
Reconsideration Panel was satisfied that the Original Panel had sufficient
evidence to make an inference with respect to the rationalization. Thus, the
Reconsideration Panel essentially confirmed that the Original Panel’s inference
was reasonable.
[40]
The Reconsideration Panel
also rejected the applicant’s suggestion that the Original Panel conducted an
analysis of the legitimacy or theological soundness of his religious beliefs
and, that in so doing it acted as arbiter of religious dogma. It qualified the
comments to which the applicant referred in his submissions before it as obiter.
[41]
Finally, with respect to the
applicant’s allegations that the Original Panel failed to follow the direction
set out by the Supreme Court of Canada in Amselem, the Reconsideration
Panel found that the applicant’s sincerity was a legitimate issue before the
Original Panel, given the disparity between his two applications and the short
time period involved. It held that there was no conflict between the decision
of the Original Panel and the principles enunciated in Amselem. It also
noted that the issue before the Original Panel was not whether union membership
and the payment of dues violated the applicant’s Charter right to freedom of
religion.
[42]
The Reconsideration Panel
was entitled to focus as it did on the main rationale of the decision of the
Original Panel.
[43]
There is no transcript of the
applicant’s testimony and there is no affidavit evidence before this Court that
would enable us to question the Reconsideration Panel’s conclusion that the
Original Panel did not misapply the test and could base its decision on a
failure to meet the Barker/Wiebe test’s fourth criterion – the sincerity
of his beliefs and that he had not rationalized his objections to unions after becoming
aware of the provision of the Code and the Board’s jurisprudence.
[44]
The applicant insisted that
the Original Panel’s error is apparent from paragraph 29 of its decision. In
that passage, the panel acknowledges the inherent difficulty of assessing a
person’s religious beliefs. First, because this involves assessing the
sincerity of the person and second, because it must also ascertain the nature
of the beliefs – that is, whether they are religious, moral, social or
political (third criterion of the Barker/Wiebe test). Pursuant to
subsection 70(2) of the Code, the objection must be grounded in religious
beliefs. Thus, I understand the words “and incompatible
with membership and/or payment of dues to trade unions” in that
paragraph as referring to the need to ensure the required link between the
religious beliefs and the objection. In the circumstances, I have not been
persuaded that the Reconsideration Panel erred.
[45]
It is implicit in its decision
that the Reconsideration Panel recognized that the Original Panel’s decision was
not perfect and that some of its phraseology may be open to criticism. However,
the Reconsideration Panel found that these flaws did not vitiate the core
rationale of the Original Panel’s decision. Again, I cannot conclude that this finding
was unreasonable.
[46]
In Amselem, the
Supreme Court of Canada reminded us, albeit in a different context, that the
assessment of the sincerity of one’s religious belief “is
a question of fact that can be based on several non-exhaustive criteria,
including the credibility of the claimant’s testimony […], as well as an
analysis of whether the alleged belief is consistent with his or her other
current religious practices” (Amselem, at paragraph 53). I agree
with the applicant that all decision-makers must be conscious of and abide by
the Supreme Court of Canada’s warning in Amselem (also at paragraph 53)
that focusing too rigorously on past practices is inappropriate when
determining whether current beliefs are sincerely held. This is because, by
their very nature, beliefs are fluid and may well change and evolve over time.
[47]
That said, the Original
Panel was fully alert and alive to the fact that according to the applicant,
his views on what a union can legitimately do had changed between July 27 and
August 24, 2010, which changed his perception as to what his long-held
religious beliefs required him to do in such circumstances. It clearly
understood that beliefs can progress. It was simply not satisfied on the
balance of probabilities that the applicant’s beliefs actually progressed in
the manner asserted by the applicant.
[48]
Thus, in my view, although
the Original Panel mentions how the applicant behaved in the past (such as his
union membership at the age of 17), it was open to the Reconsideration Panel to
conclude that the Original Panel made no error warranting its intervention. The
Original Panel did not rigorously focus on past practices. Its true focus was
on what took place shortly before the second application was filed.
[49]
Finally, the applicant says
that although he did not rely on Doré before the Reconsideration Panel,
this Court should conclude that the decision is unreasonable because the
Reconsideration Panel did not apply Doré. The applicant says that he did
not need to invoke the Doré approach because the Reconsideration Panel
was obligated on its own to follow it.
[50]
I disagree. Both panels
concluded that the exemption should be denied for failure to establish on a
balance of probabilities the factual matter of the sincerity of the beliefs put
forth as the basis for the applicant’s objection. As a result, no Charter value
was engaged. In other words, the Doré framework cannot apply if, on the
facts of the case, there is no religious value to be balanced against other
considerations.
[51]
In view of the foregoing, in
my opinion, the applicant has failed to establish the unreasonableness of the
decision under review. Therefore, I would dismiss the appeal.
[52]
At the hearing, the parties
agreed that whoever succeeded, the costs should be assessed at $1, 500 all
inclusive.
“Johanne Gauthier”
“I agree
C. Michael Ryer, J.A.”
“I agree
A.F. Scott, J.A.”
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