Canada Post Corporation v. Canadian Union of Postal Workers, 2013 FCA 35

Date: 20130213

Docket: A-332-12

Citation: 2013 FCA 35

CORAM:       SHARLOW J.A.

                        GAUTHIER J.A.

                        WEBB J.A.

BETWEEN:

CANADA POST CORPORATION

Applicant

and

CANADIAN UNION OF POSTAL WORKERS

Respondent

Heard at Ottawa, Ontario, on February 13, 2013.

Judgment delivered from the Bench at Ottawa, Ontario, on February 13, 2013.

REASONS FOR JUDGMENT OF THE COURT BY:                                SHARLOW J.A.

Date: 20130213

Docket: A-332-12

Citation: 2013 FCA 35

CORAM:       SHARLOW J.A.

                        GAUTHIER J.A.

                        WEBB J.A.

BETWEEN:

CANADA POST CORPORATION

Applicant

and

CANADIAN UNION OF POSTAL WORKERS

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on February 13, 2013)

SHARLOW J.A.

[1]               Canada Post Corporation seeks judicial review of the decision of the Canada Industrial Relations Board dated February 9, 2012, with reasons dated March 9, 2012 (2012 CIRB 635). The decision sought to be reviewed deals with a preliminary objection of Canada Post with respect to four “single employer” applications by the respondent Canadian Union of Postal Workers with respect to Canada Post and certain mail contractors (corporations that have contracted with Canada Post Corporation for the transmission of mail: TLM Logistics Inc. and JCE Logistics Inc. (Board File 26935-C), Eazy Express Inc. (Board File 26936-C), 1644307 Ontario Inc. operating as Super Express (Board File 27028-C), and RMS Pope Incorporated (Board File 27029-C).

[2]               Before the Board, Canada Post submitted a preliminary objection on the basis that subsection 13(5) of the Canada Post Corporation Act, R.S.C. 1985, c. C-10, is a complete bar to the single employer applications. That provision reads as follows:

[3]               The Union opposed the preliminary objection. The Board rejected the preliminary objection, and ordered the single employer applications to proceed on the merits. Now before this Court is Canada Post’s application for judicial review of the Board’s rejection of its preliminary objection.

[4]               While this application for judicial review was outstanding, two of the mail contracts expired (Eazy Express Inc. and 1644307 Ontario Inc., operating as Super Express). The Board concluded that the single employer applications relating to those corporations were moot, and those Board files were closed. In October of 2012, the single employer application relating to TLM Logistics and JCE Logistics was withdrawn, leaving only one single employer application outstanding before the Board. Two days before the hearing of this judicial review application, the Union filed material (with leave) indicating that on January 28, 2013, the Board had dismissed the remaining single employer application on the merits (2013 CIRB 672).

[5]               The question now before the Court is whether Canada Post’s application for judicial review should be dismissed as moot. The parties have made full oral submissions on that issue.

[6]               We have concluded that this application for judicial review is moot, and having considered the principles in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, we have also concluded that there is no basis upon which the Court should hear the application despite its mootness. In our view the key Borowski factor, in the context of this case, is whether the issue sought to be debated in this Court is so elusive of judicial review that this Court should exercise its discretion to entertain Canada Post’s application. Despite the most vigorous submissions of Canada Post, we have not been persuaded that this is the case.

[7]               We would emphasize that we express no opinion on the merits of the Board’s interpretation of subsection 13(5) of the Canada Post Corporation Act. It remains open to Canada Post to raise this issue if the Union seeks judicial review of the Board’s dismissal of the single employer application in this case, or in any future case. Similarly, Canada Post is free to challenge the Board’s interpretation of subsection 13(5) in any other proceedings it may bring to this Court in relation to a single employer application decision of the Board or any other matter in which subsection 13(5) is or may be relevant.

[8]               For these reasons, the application for judicial review will be dismissed with costs.

“K. Sharlow”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                             A-332-12

STYLE OF CAUSE:                                                            Canada Post Corporation v. Canadian Union of Postal Workers

PLACE OF HEARING:                                                      Ottawa, Ontario

DATE OF HEARING:                                                        February 13, 2013

REASONS FOR JUDGMENT OF THE COURT BY:   SHARLOW, GAUTHIER, WEBB J.J.A.

DELIVERED FROM THE BENCH BY:                         SHARLOW J.A.       

DATED:                                                                                February 13, 2013

APPEARANCES:

SOLICITORS OF RECORD: