Date: 20000901
Docket: T-1713-98
BETWEEN:
BRADLEY BERTHIER, GARY PEDDLE & DARREL SLAUNWHITE
Applicants
- and -
MINISTER OF LABOUR (CANADA) and
THE HALIFAX EMPLOYERS' ASSOCIATION and
THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 269
Respondents
REASONS FOR ORDER
MacKAY J.
[1] This application for judicial review concerns a decision made by the federal Minister of Labour on July 29, 1998, which denied a request to appoint an adjudicator to hear a complaint made by the applicants against the Halifax Employers' Association, that they were unjustly dismissed. The complaint, which is not the subject of this judicial review, arose from a change in the procedure employed for enlisting labour as stevedores at the Halifax waterfront.
[2] The Halifax Employers' Association is an incorporated association made up of member companies that employ stevedores and other labour on the Halifax waterfront. The International Longshoremen's Association ("ILA"), Local 269 is the union that represents the unionized employees who work on the waterfront. The applicants in this application for judicial review are three individuals who have worked for some time as stevedores in Halifax in a casual capacity, having been assigned work when required through the "Bullpen." Non-union members who seek longshoremen's work present themselves at the bullpen maintained by the ILA, Local 269. If work is available for other than regular union members, those in the bullpen may be assigned to that work and they pay a dues check-off to the union in relation to the time worked as they are not members of the ILA.
[3] In 1997, the ILA and the Halifax Employers' Association decided that additional skilled workers were needed regularly in the industry. The two organizations entered into an agreement that provided for priority to be given to one hundred workers to be placed upon what was called a "Reserve Bullpen List". A process was put in place to determine who would be eligible to be on the Reserve Bullpen List. Persons were recommended by the ILA and assessed by the Employer's Association. Part of this process was having potential reserve list members write standardized tests and eligibility was to depend, in part, upon reaching a minimum standard on those tests.
[4] The three applicants in this case were not successful in meeting the minimum standard on the tests and were informed that therefore they were not eligible to be on the "Reserve Bullpen List". Through their counsel, they filed a complaint of wrongful dismissal with the Minister of Labour, seeking the appointment of an adjudicator under the Canada Labour Code.1 The Minister denied their request for such an appointment in a letter dated July 29, 1998, in the following terms:
| This is in response to your request of April 27, 1998, submitted on behalf of your clients, Bradley Joseph Berthier, Gary Leo Peddle and Darrell Richard Slaunwhite, for the appointment of an adjudicator to hear their complaint of unjust dismissal against the Halifax Employers' Association, seven named member companies of the Association, and Local 269 of the International Longshoremen's Association. |
| The investigation of the facts and mediation efforts conducted by an inspector of the Atlantic region has revealed that a matter of the same substance as the compliant under Part III of the Code has been brought before the Canada Labour Relations Board. Therefore, in keeping with the principles of natural justice as well as the provisions of Section 242(3.1) of the Canada Labour Code, I am unable to appoint an adjudicator under Division XIV of the Code to hear and adjudicate your clients' complaint. |
[5] The provision referred to by the Minister, subsection 242(3.1) of the Canada Labour Code, limits circumstances in which an adjudicator can be appointed:
| (3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
| (b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament. |
|
(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants_:
| b) la présente loi ou une autre loi fédérale prévoit un autre recours. |
|
[6] The "matter of the same substance as the complaint", referred to by the Minister, before the Canada Labour Relations Board ("CLRB" or "CIRB")2, related to a complaint brought by a number of individuals, including the applicants in this matter, alleging that the ILA's hiring hall practices were contrary to the Canada Labour Code's provisions for fair referral in section 69. That section is within Part I, Industrial Relations, and Division IV, Collective Bargaining and Collective Agreements, matters within the jurisdiction of the CIRB under the Canada Labour Code. I note that since the hearing of this application for judicial review, the applicants forwarded to the Court's attention, by letter of June 28, 2000, without other submissions, the decision made by the CIRB in relation to their complaint.3 The complaint, so far as it concerned the three applicants in this matter, was dismissed because the CIRB found that the complaint did not deal with actions taken by the ILA, but rather with actions taken by the Halifax Employers' Association which removed the applicants' names from the reserve list proposed by the ILA after they failed the employer's aptitude test.
[7] In my view, the Minister, in declining to appoint an adjudicator, was relying in part upon assessment regarding the Minister's jurisdiction to do so under the Canada Labour Code. It seems clear that the Minister was of the opinion that, in the circumstances of this case, the Code precluded the appointment of an adjudicator because of clause 242(3.1)(b). This is a question of law concerning jurisdiction and, in my opinion, the functional and pragmatic approach leads to the conclusion, in the absence of a privative clause precluding judicial review, that the appropriate standard of review is correctness. While the use of the word "may" in the provision in question indicates discretion is vested in the Minister, that discretion is not operative when making a decision concerning jurisdiction to act.
[8] Further, in my opinion the Minister was not correct in concluding that he could not, because of clause 242(3.1)(b), appoint an adjudicator to hear the complaint of wrongful dismissal made by the applicants. The only other procedure for redress under the Canada Labour Code was the proceeding before the Canada Industrial Relations Board which concerned a complaint that the ILA breached the duties set out in section 69 of the Code, which governs the referral, by a trade union, of persons for employment. That section is within Part I: Industrial Relations, which provides for the CIRB's authority in regard to collective bargaining and the responsibilities of the parties to a collective agreement.
[9] While the complaint to the Minister arose from essentially the same facts, the CIRB was not considering the question of whether or not the three applicants in the case at bar were unjustly dismissed from employment. Simply because the CIRB was hearing a matter arising from the same facts does not make its proceeding "a procedure for redress [that] has been provided elsewhere in or under this or any other Act of Parliament." In this case the CIRB found, in effect, that it had no authority to deal with the complaint under s. 69, since on the facts it was not a complaint concerning action by the union. That complaint, before the CIRB, was not a complaint of unjust dismissal against the employer.
[10] The complaint to the Minister under section 240 and the Minister's decision under paragraph 242(3.1)(b) are matters dealt with under Part III of the Canada Labour Code concerning labour standards applicable in employment under the legislative jurisdiction of Parliament, where no collective agreement provides for arrangements more favourable to the employee. That Part includes provision for dealing with complaints of unjust dismissal. In my opinion, where the facts may give rise to a complaint and claimed relief against a trade union, that in itself does not preclude a claim for relief against an employer on the basis of a different complaint, in particular where the complaint under Part I is found not to be one under the Act.4
[11] Further, in this case, as it has turned out, the CIRB determined that the complaint before it was not within the Act as a complaint under section 69 in relation to the union. The suggestion of the Minister that principles of natural justice, in view of the complaint to the CIRB, precluded appointment of an adjudicator, is simply not well founded, in my opinion.
[12] In the result, an Order now issues granting the application and setting aside the decision of the Minister refusing to appoint an adjudicator, along with directions that the request of the applicants be reconsidered. Of course, the Order does not direct the Minister to appoint an adjudicator. Whether or not that is to be done remains a discretionary decision for the Minister to make.
[13] Costs were not requested by the applicants and were not addressed at the hearing. The respondents, requesting that the application be dismissed, asked for costs. Pursuant to Rule 400, the Court has discretion to award costs and the amount. In the ordinary course, costs follow the event. In this case, the order dismissing the application fixes costs in the amount of $1,500.00, payable to the applicants in equal amounts of $500.00 by each of the respondents.
(signed) W. Andrew MacKay
OTTAWA, Ontario
September 1, 2000
__________________
1 R.S.C. 1985, c. L-2, s. 240, as amended.
2 The CLRB was replaced by the Canada Industrial Relations Board, which continued with the responsibilities of the CLRB, by S.C. 1998, c. 26.
3 See Berthier, Peddle and Slaunwhite v. HLA, Local 269 and Halifax Employers' Association Inc. , CIRB/CCRI Decision no. 54, File 18397-C, 14 February 2000.
4 See per Strayer J.A. in Byers Transport, Ltd. v. Kosanovich et al. (1995), 185 N.R. 107 at 118 (F.C.A.).
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