Docket: A-391-16
Citation:
2017 FCA 152
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CORAM:
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DAWSON J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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JARRETT FAIRHURST
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Applicant
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and
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UNIFOR LOCAL
114
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and CASCADE
AEROSPACE LTD
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Respondents
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REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
The applicant brings this judicial review application
to set aside a decision of the Canada Industrial Relations Board (the Board),
rendered April 12, 2016 (2016 CIRB LD 3600) (the Original Decision). In that
decision, the Board dismissed the applicant’s complaint against his former
union, the respondent Unifor Local 114 (Unifor), on the basis that it had not
been filed with the Board within the 90-day time period specified by subsection
97(2) of the Canada Labour Code, R.S.C., 1985, c. L-2 (the Code). For
the reasons that follow, I would dismiss the application.
[2]
On January 8, 2015, Cascade Aerospace Ltd.
terminated the applicant’s employment. Unifor unsuccessfully grieved the
termination. On April 7, 2015, the applicant was advised by Unifor that it
would not proceed to arbitration and that he would receive a letter from Unifor
explaining the reasons for its decision. The applicant then grieved Unifor’s
decision through Unifor’s internal grievance procedures.
[3]
On November 12, 2015, the applicant filed his
complaint with the Board. The substance of the complaint was that Unifor had
breached its duty under section 37 of the Code to provide fair representation
to the applicant.
[4]
In dismissing his complaint, the Board held,
consistent with its prior jurisprudence, that delays arising from pursuit of
internal union appeal procedures do not provide a basis on which it should
extend the 90 days within which to file a complaint. The Board recognized that
it had, under subsection 16(m.1) of the Code, discretion to extend the period
of time, but concluded that there was nothing in the record that supported the
exercise of its discretion to extend the time limit.
[5]
The applicant subsequently asked the Board to
reconsider its decision dismissing his complaint under section 37 because it
was filed beyond the 90-day period. The Board noted in its reconsideration
decision that the applicant argued “that reconsideration
is warranted because the Board failed to respect a principle of natural
justice, that it exceeded its jurisdiction in issuing its decision, that the
decision was erroneous in law and did not conform with the policies of the
Board regarding the interpretation of the Code”.
[6]
On January 17, 2017, the Board issued its
Reconsideration Decision (2017 CIRB LD 3756). The Board first considered the
applicant’s request for an extension of time in order to bring his
reconsideration request, as it too was out of time. The Board decided to
exercise its discretion pursuant to subsection 16(m.1) of the Code to extend
the time limit for filing the application for reconsideration. The request for
an extension was not opposed by Unifor.
[7]
The Board went on to consider whether the
applicant had demonstrated that there was cause to reconsider the Original
Decision, according to the factors set out in Buckmire v. Teamsters Local
Union 938, 2013 CIRB 700. Those criteria include circumstances where there
are new facts which were not discoverable with reasonable diligence at the time
of the original decision and which would likely have changed the original
decision, where there has been a change in the law or where the Board breached
procedural fairness.
[8]
The Board determined that the applicant had not
met any of the criteria. In particular, the reconsideration panel of the Board
rejected the applicant’s argument that the Board had breached natural justice
by dismissing his complaint for delay. The Board noted that “timeliness is a core element of the Board’s authority to
decide a section 37 complaint”, that the applicant had notice of the
time periods and had been given an opportunity to address the determinative
question as to when he first learned of Unifor’s decision not to support his
grievance against Cascade. The Board dismissed the application for
reconsideration, concluding that the Board appropriately dismissed the
complaint as untimely, “in accordance with its
longstanding practice regarding the time limits as outlined in section 97(2) of
the Code”.
[9]
On October 7, 2016, the applicant applied to
this Court for judicial review of the Original Decision. He filed no
application in respect of the Reconsideration Decision.
[10]
On June 5, 2017, two weeks prior to the
scheduled hearing of this application, this Court issued a direction to the
parties requesting that they be prepared to make submissions at the hearing
about the applicability of the decision of this Court in Vidéotron Télécom Ltée v. Communications,
Energy and Paperworkers Union of Canada, 2005 FCA
90, 345 N.R. 130 [Vidéotron]. Vidéotron
stands for the general proposition that a Court should not review an
administrative decision that has been reconsidered on its merits by another
panel of the tribunal if the Court is not also seized of the reconsideration decision.
[11]
The applicant then filed a motion for leave to
extend the period of time within which to file an application for judicial
review of the Reconsideration Decision. This motion was heard and considered by
the Court at the outset of the hearing of the judicial review application. The
motion was dismissed, with reasons to follow in the Court’s disposition of the
underlying application for judicial review. I now turn to those reasons.
[12]
In dismissing the motion, this Court considered
the criteria governing extensions of time set out in Canada (Attorney
General) v. Larkman, 2012 FCA 204, 433 N.R. 184 [Larkman]: a
reasonable explanation for the delay, demonstration of a continuing intention
to pursue the application, the potential merit of the application and whether
there is prejudice to a party as a result of the delay.
[13]
In the Court’s view, the explanation tendered
for the delay – an assertion that the solicitor was unaware of the decision in Vidéotron – was not compelling. Counsel
are presumed to know the law, and there was nothing in the circumstances of
this case that would warrant departure from this principle. Second, there was
never any intention, let alone a continuing intention, to seek judicial review
of the Reconsideration Decision. The Court saw little, if any, merit in the proposed
judicial review application.
[14]
Having dismissed the motion for leave to extend
the time to challenge the Reconsideration Decision, the principles articulated
in Vidéotron were engaged.
[15]
Vidéotron
acknowledges the discretion of the Court to hear an application for judicial
review, notwithstanding the absence of an application for judicial review of
the subsequent reconsideration decision. We were urged to exercise this
discretion. In support, counsel for the applicant relied on three decisions of
this Court where the Court had, in fact, exercised its discretion to hear the
judicial review of the initial decision in the absence of an application for
judicial review of the reconsideration decision: Veillette v. International
Association of Machinists and Aerospace Workers, 2011 FCA 32, 417 N.R. 95; Grain
Services Union (ILWU-Canada) v. Friesen, 2010 FCA 339, 414 N.R. 171; McAuley
v. Chalk River Technicians and Technologists Union, 2011 FCA 156, 420 N.R.
358. In each of those cases, however, all counsel had agreed to proceed on that
basis and the Court was satisfied that it was appropriate to do so. Here, there
is no such consent.
[16]
The considerations which underlie the principle
in Vidéotron are applicable
in the circumstances of this case. If the applicant were successful in this
judicial review application, the Reconsideration Decision which left the
Original Decision intact would remain in effect.
[17]
Nor is there reason for the Court to exercise its
discretionary power in the case at bar. I reach this decision largely on the basis
that I am not satisfied that there is potential merit to the underlying
application. Absent merit in the underlying application nothing is served by
the requested exercise of discretion. I will elaborate on this point.
[18]
Subsection 97(2) of the Code states that
individuals who wish to make complaints to the Board pursuant to section 37
must do so within ninety days “after the date on which
the complainant knew, or in the opinion of the Board ought to have known, of
the action or circumstances giving rise to the complaint.” The Board
addressed this issue in its Original Decision, after hearing submissions from
the parties.
[19]
In its November 19, 2015 letter to counsel for
the applicant, the Board directed counsel’s attention to both the Board’s
complaint form and paragraphs 40(1)(e) and 40(1)(i) of the Canada
Industrial Relations Board Regulations, 2012, S.O.R./2001-520 (the Regulations).
These Regulations require that supporting documents be filed in support of the
complaint and that the complainant identify “the date
on which the complainant knew of the action or circumstances giving rise to the
complaint”.
[20]
The Board invited counsel for the applicant to
make submissions on the question when the applicant first knew of Unifor’s
decision not to support the applicant’s grievance. The Board considered those
submissions and concluded that the applicant knew, with considerable certainty,
of the union’s decision not to continue to represent the applicant on a
specific date, but did not file the complaint until well after the expiry of
the 90-day period.
[21]
My assessment of the merits of the underlying
case is that it is weak indeed. In this regard, I note that discretionary decisions
of the Board are to be reviewed on the reasonableness standard, as this Court
has acknowledged on a number of occasions (see, for example, FedEx Freight
Canada Corp. v. Teamsters Local Union No. 31, 2017 FCA 78 at para. 23).
[22]
It follows that I am not convinced, in the
circumstances of this case, that the Court should exercise its discretion to
depart from the principles set out in Vidéotron. I would therefore dismiss the application with costs.
[23]
This said, since the question of the application
of Vidéotron was raised by the Court, I would add that based on my assessment of
the merits of the underlying application it follows that if the reconsideration
decision had been challenged as it should have been, I would not have been
persuaded to allow the application for judicial review. The deference owed to a
decision of the Board is such that neither decision was unreasonable or unfair.
“Donald J. Rennie”
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“I agree
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Eleanor R. Dawson J.A.”
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“I agree
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Wyman W. Webb
J.A.”
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