Docket: T-969-16
Citation:
2016 FC 1008
[ENGLISH
TRANSLATION]
Montréal, Quebec, September 6, 2016
PRESENT: The Honourable
Mr. Justice Locke
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BETWEEN:
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SOCIÉTÉ DE
TRANSPORT DE L’OUTAOUAIS
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Applicant
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and
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SYNDICAT UNI DU
TRANSPORT
(LOCAL 591)
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Respondent
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ORDER AND REASONS
I.
Nature of the motion
[1]
The aim of this motion written under rule 369
of the Federal Courts Rules, SOR/98-106 [Rules], is to order, in
accordance with rules 423 and 431, the enforcement of an arbitral award
issued on May 5, 2016, by Renaud Paquet. More specifically, it
seeks to order the respondent to take measures, particularly to disclose the
necessary documents and information, so that the employer may accomplish the
tasks assigned to it by Appendix “H” of the collective agreement between
the parties.
II.
Overview
[2]
The applicant, Société de transport de
l’Outaouais (STO), is a corporation providing an urban public transportation
system to the residents of the cities of Gatineau, Cantley and Chelsea.
[3]
The respondent, the Syndicat uni du transport,
local 591 (Syndicat), is an accredited association of employees as defined
in the Canada Labour Code, RSC 1985, c. L-2, representing the
applicant's urban drivers and maintenance employees.
[4]
A collective agreement was entered into by the
parties. This collective agreement contains Appendix “H,” which sets out
the tasks assigned to the STO for administering employees' long-term disability
coverage. The Appendix sets out the following tasks:
1.
Advise the insurance company of any change
affecting the union members who are covered or their salaries for the purposes
of long-term disability insurance.
2.
If required, provide the necessary information
and forms in a timely manner to the disabled union members so they may begin to
receive, within the time limit set by the plan, the employment insurance
benefits beginning at the start of the time provided for in the plan, if
applicable.
3.
Provide the insurance company and union members
with all of the necessary information and claims for benefits so that the payment
of long-term disability benefits can begin within the appropriate timeframe set
out in the plan.
4.
Follow up on claim files, if necessary.
5.
Bill the Syndicat on a monthly basis for group
insurance premiums (other than those for long-term disability), union dues and
contributions to a pension fund otherwise paid by union members when they
receive employment insurance benefits.
[5]
On March 5, 2015, the STO filed a
grievance alleging that the Syndicat violated the agreement and that, more
specifically, the Syndicat failed to carry out its obligations following a
change in insurance company, by acting as though Appendix “H” was null and
void. Furthermore, the Syndicat allegedly acted to prevent the STO from doing a
medical follow-up by failing to forward the information relevant to the
disability files to the STO.
[6]
On May 5, 2016, Renaud Paquet
issued an arbitral award with the following decision:
[translation]
HOLDS that Appendix “H” of the
collective agreement remains in effect even though the insurance company changed
as of January 1, 2015;
ORDERS the Syndicat to take the measures to
ensure that the employer may, by May 20, 2016, at the latest, fully
perform the tasks assigned to it by Appendix “H” of the collective
agreement.
[7]
To ensure compliance with this order, the
applicant requested, through a letter dated May 16, 2016, the
documents that it deemed necessary to perform the tasks assigned to it by
Appendix “H.” In particular, the documents deemed relevant by the
applicant are as follows:
1.
Copy of the insurance contract;
2.
Contact information and role of the claims
adjudicators assigned to the files, their supervisors and the account manager;
3.
All of the documents relating to the claims and
billing;
4.
Copy of the claims forms;
5.
Details relating to the claims procedures and
deadlines.
[8]
The respondent did not forward any documents and
stated, on May 20, 2016, that it intended to contest the arbitral
award by way of judicial review. The applicant repeated its request for these
documents on May 20, 2016.
[9]
On June 3, 2016, the respondent filed
an application for judicial review of the arbitral award. However, the arbitral
award was not stayed.
[10]
The applicant asked Mr. Paquet, in a letter
dated June 6, 2016, to supplement his decision by listing the
documents required to comply with Appendix “H.” Following that request,
the arbitrator Renaud Paquet issued a new decision on August 31, 2016,
in which he concluded that he is functus officio and therefore does
not have the jurisdiction to list the documents to which the applicant is entitled.
The new decision also noted that the litigation before him did not concern the
identification of the specific documents that must be provided.
[11]
On June 21, 2016, the Federal Court
issued a certificate of a filing for the arbitral award pursuant to section 66
of the Canada Labour Code. On June 29, 2016, the applicant
served this filing and reiterated its request for the documents and information
listed to the respondent. To date, no document or information has been sent to
the applicant.
III.
Relevant Act
[12]
Section 66 of the Canada Labour Code
sets forth how a party may give effect to an arbitrator's order:
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Filing of orders and decisions in Federal Court
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Exécution des décisions
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66 (1) Any person or organization
affected by any order or decision of an arbitrator or arbitration board may,
after fourteen days from the date on which the order or decision is made or
given, or from the date provided in it for compliance, whichever is the later
date, file in the Federal Court a copy of the order or decision, exclusive of
the reasons therefor.
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66 (1) La
personne ou l’organisation touchée par l’ordonnance ou la décision de
l’arbitre ou du conseil d’arbitrage peut, après un délai de quatorze jours
suivant la date de l’ordonnance ou de la décision ou après la date d’exécution
qui y est fixée, si celle-ci est postérieure, déposer à la Cour fédérale une
copie du dispositif de l’ordonnance ou de la décision.
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(2) On filing an order or decision of
an arbitrator or arbitration board in the Federal Court under subsection (1),
the order or decision shall be registered in the Court and, when registered,
has the same force and effect, and all proceedings may be taken thereon, as
if the order or decision were a judgment obtained in the Court.
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(2)
L’ordonnance ou la décision d’un arbitre ou d’un conseil d’arbitrage déposée
aux termes du paragraphe (1) est enregistrée à la Cour fédérale;
l’enregistrement lui confère la valeur des autres jugements de ce tribunal et
ouvre droit aux mêmes procédures ultérieures que ceux-ci.
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[13]
The motion for enforcement is filed pursuant to
part 12 and to sections 423 and 431 of the Rules:
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Where brought
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Compétence exclusive
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423 All matters relating to the
enforcement of orders shall be brought before the Federal Court.
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423 Toute question concernant l’exécution
forcée d’une ordonnance relève de la Cour fédérale.
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Performance by other person
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Accomplissement de l’acte par une autre personne
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431 Where a person does not comply
with an order to perform an act, without prejudice to the powers of the Court
to punish the person for contempt, on motion, the Court may order that
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431 Si
une personne ne se conforme pas à l’ordonnance exigeant l’accomplissement
d’un acte, la Cour peut, sur requête, sans préjudice de son pouvoir de la
punir pour outrage au tribunal, ordonner :
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(a) the required act be performed by the person by whom the order was
obtained or by another person appointed by the Court; and
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a) que l’acte requis soit accompli par la
personne qui a obtenu l’ordonnance ou par toute autre personne nommée par la
Cour;
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(b) the non-complying person pay the costs incurred in the
performance of the act, ascertained in such a manner as the Court may direct,
and that a writ of execution be issued against the non-complying person for
those costs.
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b) que le contrevenant assume les frais de
l’accomplissement de l’acte, déterminés de la manière ordonnée par la Cour,
et qu’un bref d’exécution soit délivré contre lui pour le montant de ces
frais et les dépens.
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IV.
Issues in Dispute
[14]
The applicant submits the following issues in dispute:
1.
Is this Honourable Court justified in ordering
the respondent to comply with the order from Mr. Paquet issued on May 5, 2016?
2.
Can this Honourable Court allow the applicant,
in order to perform the tasks assigned to it by Appendix “H,” to take
possession of the aforementioned documents, in the possession of the
respondent, considering the latter's repeated refusals?
V.
Preliminary Issue
[15]
At the end of its written submissions, the
respondent requested that, despite this motion being submitted in writing, the
Court convene the parties to a hearing in order to render a decision on the
motion. This request from the respondent was not supported by any argument.
[16]
I am in agreement with the applicant that, in
the absence of an indication of how a hearing would help this Court render a
decision, it is preferable that I render my decision solely on the basis of the
motion records submitted by the parties.
VI.
Analysis
[17]
The applicant has reason to claim that the
arbitral award has become enforceable through its filing in Federal Court and
that, in the absence of a stay of execution, it therefore follows that the
respondent must comply with this order. The respondent has taken no measures
following the arbitral award to comply with the order, and it is trying in vain
to oppose its enforcement.
[18]
First, regarding the respondent's assertion that
neither the applicant nor its employees suffered an alleged detriment, I note
that (i) the arbitrator ordered the respondent to take the measures so
that the applicant can fully perform the tasks assigned to it by Appendix “H”
of the collective agreement, and (ii) the respondent did nothing in turn.
In my opinion, it is not necessary to assess the detriment in order to justify
the enforcement of an order.
[19]
Second, the respondent's argument stating that
the applicant is requesting enforcement stemming from an insurance contract
that no longer exists must be dismissed. The respondent is again trying an
argument that was dismissed by the arbitrator. This issue was central to the
arbitral award and, after recognizing that there was a new insurance contract,
the arbitrator stated that Appendix “H” remained in effect.
[20]
Third, the respondent wrongly claims that the
order stemming from the arbitral award is [translation]
“purely declaratory.” It is clear that, on the
one hand, the arbitrator [translation]
“declared” that Appendix “H” of the
collective agreement was still in effect and, on the other hand, that the
arbitrator [translation] “ordered” the Syndicat to take the measures so that
the employer could perform the tasks assigned to it. I see no reason not to
conclude that this second part of the arbitral award is enforceable.
[21]
The respondent claims that the order in the
arbitral award is not sufficiently specific for it to know how to comply with
it. The respondent cites Telus Mobility v. Telecommunications Workers Union,
2002 FCT 1268, at paragraphs 38 and following to claim that an
order must contain specific directions so that a party may make a reasonable
attempt to comply with it. We must keep in mind that these comments are part of
a contempt proceeding and not for enforcement. That being said, we should keep
in mind that the respondent must be able to know how to comply with an order
that is under enforcement in order to avoid contempt proceedings.
[22]
In this case, the respondent is unable to
establish that the order is ambiguous. The order refers the respondent to
Appendix “H,” which has existed between the parties for 30 years
(through several renewals of the collective agreement) with no indication of
difficulty of interpretation. I see no indication that the respondent argued
before the arbitrator that Appendix “H” was ambiguous. Moreover, I see no
evidence that the respondent is having difficulty interpreting its obligations
arising from the order.
[23]
It follows from the conclusions in the preceding
paragraph that it is neither necessary nor appropriate to extend the scope of
the order by adding a reference to the documents listed by the applicant. Those
documents are simply the applicant's interpretation of what the order requires,
and I will not take a position on this issue. It suffices to restate that I am
not convinced that the order, in referencing the specific text of Appendix “H,”
is ambiguous.
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