Docket: A-192-98
Ottawa, Ontario, Tuesday, March 30, 1999.
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
CANADIAN IMPERIAL BANK
OF COMMERCE - VISA CENTRE
Applicant
and
SYNDICAT DES EMPLOYÉES ET EMPLOYÉS PROFESSIONNELS-LES
ET DE BUREAU, SECTION LOCALE 57 (SIEPB) CTC-FTQ
Respondent
The application for judicial review is dismissed with costs.
Robert Décary
J.A.
Certified true translation
M. Iveson
Docket: A-192-98
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
CANADIAN IMPERIAL BANK
OF COMMERCE - VISA CENTRE
Applicant
and
SYNDICAT DES EMPLOYÉES ET EMPLOYÉS PROFESSIONNELS-LES
ET DE BUREAU, SECTION LOCALE 57 (SIEPB) CTC-FTQ
Respondent
Hearing held at Montréal, Quebec on Thursday, March 25, 1999.
Judgment delivered at Ottawa, Ontario on Tuesday, March 30, 1999.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Docket: A-192-98
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
CANADIAN IMPERIAL BANK
OF COMMERCE - VISA CENTRE
Applicant
and
SYNDICAT DES EMPLOYÉES ET EMPLOYÉS PROFESSIONNELS-LES
ET DE BUREAU, SECTION LOCALE 57 (SIEPB) CTC-FTQ
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] On December 17, 1997, the Canada Labour Relations Board (the Board) had before it an application for certification made by the respondent union (the union). On December 18, 1997, in accordance with section 10 of the Canada Labour Relations Board Regulations, 19921 (the Regulations), the Board required the employer (the applicant in this case) to post a notice to allow the approximately 150 employees concerned to file submissions to the Board with respect to the application for certification within 10 days of the posting of the notice. It appears from the confidential file the Court was able to consult that a certain number of employees took advantage of this opportunity.
[2] In its response to the application for certification filed on January 9, 1998, the employer claimed to have [TRANSLATION] "received numerous verbal and written complaints from employees concerning harassment, threats and intimidation". In support of this statement, it included [TRANSLATION] "several of the letters thus received" and offered to provide to the Board [TRANSLATION] "the names of those who complained verbally about such practices". The employer accordingly asked to Board to begin an investigation on this issue and at the end of this investigation, [TRANSLATION] "to formally consider the breaches by [the union] of sections 95(d ) and 96 of the Code2" and, if it decided that breaches of this kind had occurred, to dismiss the application for certification. In the alternative, the employer asked that a secret vote be held.
[3] On January 22, 1998, in its reply to the Board, the union "vigorously" denied the employer"s assertion [TRANSLATION] "which is based on no specific facts and whose only objective can be systematic interference with the application for certification". It asked the Board to disregard the employer"s statements, [TRANSLATION] "not only [because] the employer does not provide any specific facts to support its statement, but even more seriously [because] the Board has received no complaints concerning such breaches". It is accepted that no complaint meeting the requirements of form and content set out in section 32 of the Regulations had been filed as of that date.
[4] On January 23, 1998, the Board informed the employer that it had not in fact received any formal complaints.
[5] On February 4, 1998, the employer filed its response to the union"s reply. It argued that the Board would refuse to exercise its jurisdiction if it declined to consider the letters attached to its original response of January 22, 1998, as complaints. In any event, it then filed five formal complaints in which it complained that the union allegedly [TRANSLATION] "campaigned in the work place and during working hours" without its consent, and engaged in "intimidation" or "coercion".
[6] In a further reply on February 5, 1998, the union alleged that as they were worded, the complaints, [TRANSLATION] "did not include any concrete fact to support the merest suggestion of an offence . . .".
[7] The application for certification bore number 18487-C and the documents, supra, were filed under this number.
[8] On February 5, 1998, this time in a file bearing number 18566-C, the Board sent the union a copy of the complaints filed the day before by the employer and invited the union to respond in accordance with the requirements of the Regulations. At the same time, the Board informed the union that it had appointed Lise Dumont, a senior labour relations officer, to assist the parties to settle the complaints and that if agreement was impossible, a hearing would be held pursuant to section 98 of the Code.
[9] It appears from the confidential file that the Board was informed of the following by Lise Dumont on February 9, 1998, in file 18487-C (which I am taking the liberty of reproducing as the passages quoted do not compromise the confidentiality of the process):
| We have received confidential submissions from . . . employees concerning their wish not to be represented by a union. Several report having been approached in the work place and others state they were harassed. |
|
Only one of the employees in question had signed a membership card. Ms. Dumont confirmed that she verified the membership evidence and said she believed [TRANSLATION] "the requirements of section 24 of the Board"s 1992 Regulations had been met".
[10] It also appears from the confidential file that the Board responded to each of these employees using the following standard wording:
| Your submissions will be brought to the Board"s attention, which will treat them confidentially. |
|
| As you are a person who may be affected by this matter, and as you expressed your interest in it, you will be notified if the Board decides to hold a hearing in this case. . . If no hearing is held, the Board will make its decision based on the contents of the file, including all of the written submissions on file and on the results of the examinations and investigations it has deemed necessary. |
|
[11] On February 13, 1998, in file 18566-C, the union replied to the unfair labour practice complaints. It said that it believed the complaints were unreasonable, dilatory and clearly unfounded, especially because they failed to include the supporting facts, an omission which constitutes a fatal breach of the requirements of section 32 of the Regulations according to the case law.
[12] On February 15, 1998, again in file 18566-C, the Board acknowledged receipt of the union"s response.
[13] On February 20, 1998, returning to file 18487-C, the Board, [TRANSLATION] "after investigating the application and examining the submissions of the parties", stated it was [TRANSLATION] "satisfied that the majority of the employees wish to be represented by the union as their bargaining agent" and granted the application for certification. This decision is the subject of the application for judicial review.
[14] On March 18, 1998, this time in file 18487-C, the Board informed the union that the hearing with respect to the unfair labour practice complaints would be held on June 29 and 30, 1998.
[15] On March 20, 1998, the employer filed the instant application for judicial review in the Registry of this Court challenging the Board"s decision of February 20, 1998, with respect to the application for certification, and asked the Court to set aside that decision, refer the file back to the Board and order it to:
[TRANSLATION]
| (a) conduct an investigation into the complaints filed under sections 95(d) and 96 of the Code . . . before any decision on the application for certification; |
|
| (b) consider the complaints filed . . . before any decision on the application for certification; |
|
| (c) hold a formal hearing into the complaints . . . before any decision on the application for certification. |
|
[16] Although the grounds for review framed by the employer are imprecise and ambiguous, I believe the following to be a faithful restatement: (1) the Board breached the audi alteram partem rule by not holding a more comprehensive investigation to verify the wishes of the employees, by not allowing the employer to lead evidence regarding its allegations and complaints of unfair labour practices, by ignoring the evidence on the record and by not making a decision on the unfair labour practice complaints before ruling on the application for certification; and (2) the Board exceeded its jurisdiction by issuing a certification order without reasons. At the hearing, the second argument became the following: in light of the facts led in evidence, the Board"s decision is absurd and irrational without reasons to support it.
[17] Counsel informed us at the hearing that because the application for judicial review had been filed, the hearing with respect to the unfair labour practice complaints which was to be held on June 29 and 30, 1998, had been adjourned sine die.
[18] For the purposes of the discussion which follows, it is important to note that it was the same person, namely Lise Dumont, who was appointed by the Board to hold the investigation into the application for certification (file 18487-C) and to try to bring the parties to an agreement in the unfair labour practice complaints file (file 18566-C).
[19] In short, in accordance with its procedure, the Board opened two files: the first, bearing number 18487-C, when the application for certification was filed on December 17, 1997, and the second, bearing number 18566-C, when the employer filed five unfair labour practice complaints on February 4, 1998.
[20] The process then followed its usual course. In the certification file: posting of the notice at the employer"s place of business; receipt of the responses and replies by the employer and the union; receipt of the submissions of the employees in response to the notice and acknowledgment of receipt as mentioned above; verification of evidence of union membership in accordance with section 24 of the Regulations; consideration of the written submissions, letters of the employees and report of the investigation; implicit decision not to hold a hearing, not to consolidate the examination of the two files and to rule on the certification before deciding on the complaints; formal decision allowing the application for certification with limited reasons.
[21] In the complaint file: refusal, in accordance with section 32 of the Regulations, to consider allegations which did not meet the requirements of this section as complaints; acceptance of complaints as soon as they were properly filed; invitation to the union to respond; receipt of union"s response; determination of the date of the hearing; adjournment of the hearing in light of the legal proceedings undertaken by the employer.
[22] All of this appears to have followed the normal course of events in every respect. The Board could have consolidated the files pursuant to section 15 of the Regulations, but did not do so. The Board could have ordered that a hearing be held in the certification file, as expressly provided in subsection 19(2) of the Regulations, but did not do so. The Board could have ordered that a representation vote be taken, as provided in section 29 of the Code, but did not do so. The Board could have required a further investigation as provided in section 16 of the Code, but did not do so.
[23] This is the heart of the Board"s area of expertise. Under cover of a breach of the rules of natural justice, the employer is in fact challenging the Board"s decision not to do that which neither the Code nor the Regulations required it to do, to do that which the Code and the Regulations indicated or allowed it to do, and to do what it did in a manner set out in the Code and the Regulations. As I recalled in Terminaux portuaires du Québec Inc. v. Maritime Employers" Association et al. (No. 2)3, that is an area in which this Court can only intervene if the Board"s error was patently unreasonable.
[24] The Board is master of its procedure. It is also master of setting its priorities. The employer invites us to interfere with both. It was incumbent on the Board to assess the seriousness and relevance of the employer"s allegations and those of the dissident employees and, if it saw fit, to tailor its procedure and priorities accordingly. The Court can only intervene with respect to procedures and priorities if it is clear, in the given circumstances, that the Board could not reasonably have been satisfied of the wishes of the majority of the affected employees, without previously having disposed of complaints or without previously having ordered that a hearing or a representation vote be held.
[25] The only evidence offered by the employer to justify its arguments is the allegation by two (female) employees, in affidavits filed in support of the application for judicial review, that the Board"s officer, Lise Dumont, allegedly mentioned to them during a telephone conversation that the Board had only taken into consideration the complaints of people who had signed membership cards.
[26] I am not persuaded by this "evidence". First, even assuming that Lise Dumont"s remarks could be considered remarks by the Board, it is unclear to which of the files for which Ms. Dumont was responsible the conversation referred; I note, for example, that reference is made to "complaints", while we know that the employees themselves had not filed any complaints. Second, what I understand of the remarks attributed to Ms. Dumont in light of what I have seen in the confidential file is that the Board was aware of the dissatisfaction expressed by a certain number of employees and considered those among them who had stated their dissatisfaction and who had not signed membership cards to be against certification. In short, when it considered the representativeness of the union, the Board ensured that these employees were not included in the group, in fact the majority, in favour of certification.
[27] To accept the employer"s argument would be to force the Board to delay certification whenever an employer or several employees indicate their disagreement by making allegations of unfair practices. The Code does not condone this, and the Board cannot encourage it.
[28] Furthermore, to recall the words of Chief Justice Laskin in Re Canada Labour Relations Board and Transair Limited:4
| It is not as if dissident employees are without any remedy. The wishes of employees govern not only the certification of a bargaining agent but also its decertification under the prescriptions of the Canada Labour Code, and ss. 137 and 138 [now 38 and 39] are applicable in this connection. |
|
[29] In the case at bar, the Board informed the parties on March 18, 1998, that the hearing with respect to the complaints would be held on June 29 and 30, 1998. The issue of decertification would arise if the Board were to find the complaints well founded at the end of that hearing, which was adjourned due to the instant application for judicial review. We are not yet at that point.
[30] In light of this finding, it is unnecessary to consider the argument with respect to the lack or inadequacy of reasons. The Board is not required to provide reasons. In the instant case, it chose to give reasons, albeit brief ones. There is nothing to suggest that the Board did not do what it said it did. There is also nothing to suggest that the result of the Board"s procedure is so absurd in light of the facts led in evidence that it should have provided more detailed reasons in explanation.
[31] The application for judicial review should be dismissed with costs.
Robert Décary
J.A.
I concur
Gilles Létourneau J.A.
I concur
Marc Noël J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-192-98
| STYLE OF CAUSE: Canadian Imperial Bank of Commerce - Visa Centre v. Syndicat des employées et employés professionels-les et al. |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 25, 1999
REASONS FOR JUDGMENT OF THE COURT BY: Décary J.A.
CONCURRED IN BY: Létourneau J.A.
DATED: March 30, 1999
APPEARANCES:
Guy P. Dancosse, Q.C. for the applicant
André Baril
Claude Tardif for the respondent
SOLICITORS OF RECORD:
Dancosse, Brisebois for the applicant
Montréal, Quebec
Rivet Schmidt for the respondent
Montréal, Quebec
__________________
1 SOR/91-622.
2 Canada Labour Code, R.S.C., 1985, c. L-2 (the Code).
3 (1992), 142 N.R. 44 (F.C.A.).
4 [1977] 1 S.C.R. 722">[1977] 1 S.C.R. 722 at p. 743.
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