Docket: A‑295‑19
Citation: 2020 FCA 29
[ENGLISH TRANSLATION]
| CORAM:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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MARITIME EMPLOYERS ASSOCIATION
MONTREAL
PORT AUTHORITY
SHIPPING FEDERATION OF
CANADA
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Applicants
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and
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LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION
OF PUBLIC EMPLOYEES
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
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Respondents
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Heard at
Ottawa
,
Ontario
, on January 29, 2020.
Judgment delivered at
Ottawa
,
Ontario
, on January 29, 2020.
| REASONS FOR JUDGMENT OF THE COURT BY:
|
BOIVIN J.A.
|
Docket: A‑295‑19
Citation: 2020 FCA 29
| CORAM:
|
PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
|
|
BETWEEN:
|
|
|
MARITIME EMPLOYERS ASSOCIATION
MONTREAL
PORT AUTHORITY
SHIPPING FEDERATION OF
CANADA
|
|
|
Applicants
|
|
|
and
|
|
|
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION
OF PUBLIC EMPLOYEES
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
|
|
|
Respondents
|
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at
Ottawa
,
Ontario
, on January 29, 2020.)
BOIVIN J.A.
[1]
This is an application for judicial review of a decision rendered by the Canada Industrial Relations Board (the Board) on August 21, 2019 (2019 CIRB 909).
[2]
By that decision, the Board dismissed the applicants’ application for recusal of a Board member, namely, Gaétan Ménard, who was on the panel dealing with the underlying application respecting the maintenance of essential activities.
[3]
The applicants submit that the Board erred in that [translation] “the cumulative effect”
of member Ménard’s comments, actions and omissions gave rise to a reasonable apprehension of bias.
[4]
We are unanimously of the opinion that the Board did not err in its reasoned decision, as it examined the issued raised and, more specifically, the comments and actions alleged in the case under consideration.
[5]
Firstly, the Board correctly stated that the burden of demonstrating an apprehension of bias on the part of a member of the Board panel is on the party who alleges that apprehension of bias, that is, the applicants, as members of a quasi‑judicial administrative tribunal are presumed to be impartial. Secondly, the Board also properly directed itself in law in applying the test to establish a reasonable apprehension of bias as propounded in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at pages 394–395.
[6]
As the Board stated, although member Ménard’s conduct during the hearing was regrettable, we are also of the opinion that the conduct complained of in this case does not support a finding of reasonable apprehension of bias, for substantially the same reasons. That being said, we must add that member Ménard’s conduct, which included constantly whispering and leaning on his chair while disinterestedly staring out the window, is unacceptable. This conduct in no way sets an example of decorum and professionalism for a Board hearing.
[7]
The application for judicial review will therefore be dismissed, with costs.
“Richard Boivin”
Certified true translation
François Brunet, Revisor
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