Date: 20010321
Docket: A-233-99
Neutral Citation: 2001 FCA 78
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, CANADA
And GRAIN WORKERS' UNION LOCAL NO. 333, C.L.C.
Applicants
AND:
BRITISH COLUMBIA TERMINAL ELEVATOR OPERATORS'
ASSOCIATION; SASKATCHEWAN WHEAT POOL; JAMES
RICHARDSON INTERNATIONAL LIMITED; UNITED GRAIN
GROWERS LIMITED; PACIFIC ELEVATORS LIMITED;
CASCADIA TERMINAL; PRINCE RUPERT GRAIN LTD. and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondents
AND:
CANADIAN LABOUR CONGRESS
Intervenor
Heard at Vancouver, British Columbia, on Thursday, March 1, 2001.
Judgment rendered at Ottawa, Ontario, on Wednesday, March 21, 2001.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Date: 20010321
Docket: A-233-99
Neutral Citation: 2001 FCA 78
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, CANADA
And GRAIN WORKERS' UNION LOCAL NO. 333, C.L.C.
Applicants
AND:
BRITISH COLUMBIA TERMINAL ELEVATOR OPERATORS'
ASSOCIATION; SASKATCHEWAN WHEAT POOL; JAMES
RICHARDSON INTERNATIONAL LIMITED; UNITED GRAIN
GROWERS LIMITED; PACIFIC ELEVATORS LIMITED;
CASCADIA TERMINAL; PRINCE RUPERT GRAIN LTD. and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondents
AND:
CANADIAN LABOUR CONGRESS
Intervenor
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This is an application for judicial review in respect of a decision of the Canada Industrial Relations Board, Decision No. 6 issued March 19, 1999 under Board File No. 20044-C (the "decision"). The decision was made by Chairperson J. Paul Lordon, Q.C.
[2] The issue before the Court can be stated as follows: Was it patently unreasonable for the Board to conclude that members of the applicant Union had engaged in an illegal strike, in violation of the provisions of section 89 of the Canada Labour Code, when they refused to pass the picket line of another union which was picketing a separate employer?
[3] The facts are not contested.
[4] On January 25, 1999, members of the Public Service Alliance of Canada (PSAC) were conducting lawful picketing activities arising out of a legal strike involving members of PSAC and their employer, the Canadian Grain Commission. The workers on strike persuaded members of the Grain Workers' Union, Local 333 (GWU) and the International Longshore and Warehouse Union, Canada (ILWU) who were employed by the various respondents (the "Employer") to refuse to pass the picket line. As a result, ship loading operations at grain terminals in the Province of British Columbia came to a stop.
[5] The Employer made an application to the Board, alleging that the GWU and the ILWU had contravened subsection 87.7(1) of the Code, which deals specifically with the provision of services in connection with the loading of grain during a strike or lockout. In the alternative, the Employer sought a declaration that the GWU was engaged in a strike contrary to section 89 of the Code as a result of its members having honoured the picked line established by PSAC.
[6] The relevant provisions of the contract or collective agreement between the Employer and the GWU and the ILWU read as follows:
The GWU:
ARTICLE 19. NO STRIKES OR LOCKOUTS
19.01 The Union agrees that during the term of the Agreement there will be no slowdown or strike, stoppage of work, cessation of work, or refusal to work or to continue to work. The Companies agree that during the term of the Agreement there will be no lockout.
19.02 The Union agrees that in the event of strikes or walkouts, the Union will not take similar action on the ground of sympathy, but will continue to work. The Companies do not expect members of the Union to pass a picket line.
The ILWU:
ARTICLE 7. STRIKES, LOCKOUTS, HEALTH AND SAFETY, PICKET LINES
7.01 The Union agrees that during the term of this agreement there will be no slowdown nor strike, stoppage of work, or refusal to work or to continue to work.
7.02 The Association agrees that during the term of this agreement there will be no lockout.
...
7.04 The Union agrees that in the event of strikes or walkouts, the Union will not take similar action on the ground of sympathy, but will continue to work. The Association does not expect members of the Union to pass a picket line.
[7] The Board found that the principal order sought by the Employer pursuant to subsection 87.7(3) of the Code could not be granted because section 87.7 did not apply to strikes by employees of the Canadian Grain Commission whose labour relations are governed by the provisions of the Public Service Staff Relations Act. That part of the Board's decision has not been attacked.
[8] The Board went on, however, to grant the alternative remedy sought by the Employer in the following words:
Therefore, although the Board does not have jurisdiction under section 87.7 to make the requested orders, it declares that the refusal to work by employees of the applicant who are members of GWU, Local 333, as a result of PSAC picketing, constitutes or would constitute a strike in violation of the provisions of section 88.1 and sections 89(1) and (2) of the Canada Labour Code and the Board does so declare in the accompanying order. Similarly, the Board orders that any employees engaging in such activities cease and desist.
With respect to the members of the International Longshoremen's and Warehousemen's Union - Canada, a request was not made for such an order in the present proceedings. Suffice it to observe however, that their situation is not different in principle from that of the members of GWU, Local 333.
[9] I pause to note that the Employer had not alleged a violation of section 88.1 and that the formal Order issued by the Board on March 19, 1999 only referred to a violation of section 89 of the Code.
[10] It is common ground that the decision of the Board must be upheld unless it is found to be patently unreasonable or, to use the words of Gonthier J. in National Corn Growers' Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at 1369 unless it is found that the decision "cannot be sustained on any reasonable interpretation of the facts or of the law."
[11] A general statement by Iacobucci J. in Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at 179-180 is worth repeating here:
...The labour relations tribunal, in its federal and provincial manifestations, is a classic example of an administrative body which is both highly specialized and highly insulated from review. Decisions of the federal Board are protected by a broad privative clause, found in s. 22 of the Code. The Canada Labour Relations Board must develop a coherent and workable structure for the application of the numerous statutory provisions which govern the labour relations of the employers and employees whose operations fall within federal jurisdiction. In order for these workers and their employers to receive rapid resolution of their disputes in a manner which can be rationalized with their other rights and duties under the Canada Labour Code, the decisions of the Board cannot routinely be overturned by the courts whenever they disagree with the Board's treatment of an isolated issue.
[12] In the instant case, half of the reasons for decision of the Board deals with the allegation that the GWU and the ILWU had contravened subsection 87.7(1) of the Code. That subsection, which reads
| 87.7 (1) During a strike or lockout not prohibited by this Part, an employer in the long-shoring industry, or other industry included in paragraph (a) of the definition "federal work, undertaking or business" in section 2, its employees and their bargaining agent shall continue to provide the services they normally provide to ensure the tie-up, let-go and loading of grain vessels at licensed terminal and transfer elevators, and the movement of the grain vessels in and out of port.
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87.7 (1) Pendant une grève ou un lock-out non interdits par la présente partie, l'employeur du secteur du débardage ou d'un autre secteur d'activités visé à l'alinéa a) de la définition de « entreprise fédérale » à l'article 2, ses employés et leur agent négociateur sont tenus de maintenir leurs activités liées à l'amarrage et à l'appareillage des navires céréaliers aux installations terminales ou de transbordement agréées, ainsi qu'à leur chargement, et à leur entrée dans un port et leur sortie d'un port.
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was added to the Code by An Act to Amend the Canada Labour Code (Part I), S.C. 1998, c. 26. Section 87.7 was added in the context of amendments to the Code which, inter alia, changed the structure of the Board and its name, from the Canada Labour Relations Board to the Canada Industrial Relations Board.
[13] On this question, which is not an issue in this application for judicial review, the Board found that section 87.7 did not apply to the Canadian Grain Commission nor to its employees who are ordinarily subject, not to the provisions of the Code but to those of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.
[14] The Board said it was "unfortunate" that section 87.7 could not be applied in the case at bar, because it "was the measure eventually enacted by Parliament most specifically aimed at addressing the dual problem identified by the Sims Report, that is, the need to reduce disruptions in grain handling due to work stoppages in other port industries and thus maintain our national reputation for reliable grain deliveries, and the desire to eliminate the recurring resort to back-to-work legislation, which in the past had arisen because of the impact of strikes and lockouts on grain farmers." (Reasons of the Board, p. 12)
[15] Counsel for the applicants argues that the comment by the Board to the effect that section 87.7 could not "unfortunately" apply vitiates the rest of the reasons inasmuch as the Board was thereafter result-oriented and would inevitably be seeking an interpretation that would indirectly achieve a result that could not be directly achieved.
[16] I agree with counsel that the comment of the Board was ill-advised but I disagree with his qualification of the comment. The Board obviously would have been happy, as most tribunals and courts are, to dispose of the application before it without having to examine an alternate argument. But having made that comment, the Board, at page 15 of its reasons, squarely addresses the alternate argument based on section 89 of the Code independently of the argument based on section 87.7 which it had dismissed. The subsequent decision cannot be said to be "result-oriented."
[17] In that part of the Board's reasons which deals with the section 89 issue, the Board examines the wording of articles 19 (for the GWU) and 7 (for the ILWU) of the contracts; it goes on to explore the definition of "strike" in the Code which, as interpreted and applied by courts and tribunals, appears to suggest that the refusal in concert to cross another bargaining unit's picket line may in fact be a strike; and it quotes extensively from the Report of the Industrial Inquiry Commission into Industrial Relations at West Coast Ports of November 30, 1995 prepared by Hugh R. Jamieson and Bruce M. Greyell, which questioned the jurisdiction of the Canada Labour Relations Board to allow parties to contract outside the law by giving credence to clauses in a collective agreement permitting refusals to cross legal picket lines.
[18] The approach adopted by the Board is sensible and rational. It made a finding of fact, which was open to it on the evidence, that the refusal to work was a concerted refusal. It is true, as noted by the applicants, that Parliament did not adopt the recommendation of the Industrial Inquiry Commission to amend the definition of "strike" to expressly address the issue of picket line clauses. However, as noted by the respondents, the Commission in its Report expressed the opinion that a concerted refusal to cross a picket line fell within the definition of "strike" under the Code as it stood in 1995, and that clauses in collective agreements purporting to contract out of the prohibition against such strikes during the terms of collective agreements were null and void. The passage of the Report containing this opinion was quoted and its reasoning adopted by the Board in its decision. The fact that the definition of "strike" was not amended as suggested in the Report does not make it unreasonable for the Board to adopt the analysis set out in the Report, address the issue of picket line clauses on a case-by-case basis and decide in a given case that the concerted refusal to pass a picket line amounts to a strike.
[19] The conclusion reached by the Board is also consistent with the policy that has been followed in other jurisdictions with regard to Picket Line Clauses (see SCC Construction Ltd. v. U.A., [1987] N.J. No. 224 (QL) (Nfld. C.A.); McGavin Foods Ltd. v. RWDSU, Local 980 (1988), 1 C.L.R.B.R. (2d) 264 (Alta. L.R.B.); General Teamsters, Local Union No. 362 and Oil Sands Transportation Ltd., [1995] Alta. L.R.B.R. 257 (QL) (Alta L.R.B.); Hickeson-Langs Supply Company, [1991] O.L.R.B. Rep. May 625 (QL) (Ont. L.R.B.). I also note that in Contract Clauses: Collective Agreement Language in Canada, 3rd ed., Lancaster House, 1996 (July 2000, Update No. 6), at p. 12-6, Jeffrey Sack and Ethan Poskanzer have concluded:
Except in B.C., a concerted refusal to cross a picket line constitutes a strike, but the Federal Court of Appeal has affirmed that employees may refuse to cross a picket line out of concern for safety: Canada Post Corp. v. Letter Carriers' Union of Canada (1990), 111 N.R. 345, HSLR November, 1990 (Fed. C.A.). Does it make a difference that a clause allows employees to refuse to cross a picket line? The answer is mixed. Most, though not all, labour boards hold that such a clause will not preclude a Labour Board from issuing an unlawful strike declaration; however, such a clause may constitute a defence at arbitration to any attempt to impose discipline on employees or claim damages against the union: Canex Placer Ltd., [1976] 2 C.L.R.B.R. 280 (B.C.L.R.B.).
[20] At the hearing, counsel for the applicants forcefully argued that the Board had erred in relying on the addition of section 88.1 to the Code in 1998 to conclude that there was "an apparent intention in the Code to treat strikes with a heightened seriousness" (page 23 of the Board's reasons). In counsel's view, such conclusion was patently unreasonable.
[21] Like counsel, I fail to see in the language of the new section 88.1 the dramatic effect given to it by the Board. However, the Report and the cases referred to by the Board in its reasons pre-date the 1998 amendment. A flaw in reasons given by a tribunal does not in and of itself result in a finding of patent unreasonableness and I am satisfied that the flaw in question did not affect the reasoning of the Board. Furthermore, as I have noted earlier, section 88.1 was not relied on by the Employer nor was it referred to in the formal Order of the Board.
[22] The intervener, Canadian Labour Congress, took the unusual step of raising in its Memorandum of Fact and Law a Charter argument that had not been raised before the Board and that had not been raised by the parties in their respective Memorandum of Fact and Law. The intervener even sought at the very last moment to put to the Court a notice of constitutional question, which we summarily dismissed.
[23] The Court accepted to hear counsel for the intervener on her Charter argument only to the extent that it is settled law that statutes are to be interpreted in accordance with Charter values and that it is permissible to argue that a given interpretation of a provision offends those values. The values at issue, however, must be values which are solidly entrenched in the jurisprudence or otherwise well accepted. The Charter value alleged by the intervener is that although there is no constitutionally protected right to strike, it does not follow that there is no constitutional protection of the freedom enjoyed by any worker to express his or her opinion and commitment to the principles of trade union solidarity by respecting the lawful picket lines of others.
[24] I need not decide whether there is such a constitutional protection. I need only say that it is not as of yet a recognized Charter value. The intervener is not seeking to interpret a statute in the light of a Charter value; it is seeking, rather, to introduce a new Charter value. The argument, in my respectful view, is nothing but a disguised attempt to raise a constitutional issue which was not raised in the proceedings.
[25] In the end, the applicants have failed to demonstrate that the impugned decision was patently unreasonable and their application for judicial review should be dismissed, with costs against the respondents and against the intervener.
"Robert Décary"
J.A.
"I agree.
Marshall Rothstein, J.A."
"I agree.
Brian Malone, J.A."
Date: 20010321
Docket: A-233-99
OTTAWA, Ontario, Wednesday, March 21, 2001.
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, CANADA
And GRAIN WORKERS' UNION LOCAL NO. 333, C.L.C.
Applicants
AND:
BRITISH COLUMBIA TERMINAL ELEVATOR OPERATORS'
ASSOCIATION; SASKATCHEWAN WHEAT POOL; JAMES
RICHARDSON INTERNATIONAL LIMITED; UNITED GRAIN
GROWERS LIMITED; PACIFIC ELEVATORS LIMITED;
CASCADIA TERMINAL; PRINCE RUPERT GRAIN LTD. and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondents
AND:
CANADIAN LABOUR CONGRESS
Intervenor
JUDGMENT
The application for judicial review is dismissed with costs against the respondents and the intervener.
"Robert Décary"
J.A.
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