Date:
20111216
Docket: A-70-09
Citation: 2011 FCA 356
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
RAKEL ELBILIA
Applicant
and
AIR CANADA
and
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS
UNION OF CANADA (CAW-CANADA), LOCAL 2002
Respondents
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
This is an
application for judicial review of a decision of the Canada Industrial
Relations Board [Board] dated January 16, 2009, dismissing Ms. Elbilia’s
complaint pursuant to section 37 of the Canada Labour Code, R.S.C. 1985,
c. L-2 [the Code], wherein she alleged that the National Automobile, Aerospace,
Transportation and General Workers Union of Canada [Union] was arbitrary and
unfair in its representation of her.
[2]
In January
2006, Ms. Elbilia went on sick leave. Her physician declared her fit to return
to work as of April 24, 2006, but her employer imposed conditions upon her
return so that she only came back to work on February 7, 2007. Ms. Elbilia
contends that her absence between April 24, 2006 and February 7, 2007, a period
of about nine and a half months, was a form of constructive dismissal. She
asked her Union to file a grievance with
respect to her delayed return to work. She failed to persuade the Board that
the Union was unfair and arbitrary in the handling of her grievance.
[3]
For the
reasons below, I would dismiss this application for judicial review. Before
turning to the merit of the application, a few preliminary remarks are in
order.
Preliminary remarks
[4]
As
permitted by section 16.1 of the Code, the Board determined the matter without
holding a hearing as it was satisfied that the parties’ submissions and the
record were sufficient (Board’s reasons, at page 9).
[5]
For very
different reasons and pursuant to an order made in the presence of the parties
on November 30, 2011, this Court also decided to dispose of the within
application on the basis of the existing record, including the parties’ written
submissions, but without an oral hearing.
[6]
Having
regard to its obligations of fairness and equity to all parties appearing
before it, our Court imposed this unusual way of proceeding in view of the
circumstances described below (see Order of November 30, 2011 delivered by the
Court).
[7]
Following
a joint request for a hearing date, this case was first set down for hearing on
September 7, 2011. The applicant was then a self-represented litigant.
[8]
On August
26, 2011, Chief Justice Blais refused the applicant’s request for an adjournment
of the hearing. In the following days, the applicant appointed Mr. Jean-Carol
Boucher as her solicitor. On behalf of his client, he, in turn, presented a
second motion for adjournment of the hearing citing his professional and ethical
duties as his main justification. Both respondents objected to the motion,
which was heard on September 7, 2011, before the hearing on the merits was to
take place.
[9]
That
motion gave rise to an Order delivered in the presence of the parties whereby:
- the motion was allowed;
- the defendants were
awarded costs of the day in the amount of $2 800;
- the hearing
was set down for November 30, 2011, a date that was accepted by all parties;
- the
application was to “proceed on the existing record. Should the applicant wish
to amend her memorandum of fact and law, a motion to that effect should be made
as soon as possible”.
[10]
On
November 23, 2011, Mr. Boucher served and attempted to file yet another motion
for adjournment of the hearing set to take place on November 30th. I
say “attempted” because the Registry of the Federal Court of Appeal refused the
motion for filing as it did not conform with the Federal Courts Rules,
SOR/98-106. Counsel for the applicant was seeking a delay to amend his
memorandum of fact and law and book of authorities in order, he argued, to
present a “full defence” for his client.
[11]
By
direction issued on November 28, the parties were invited to debate the motion
at the beginning of the hearing. Counsel for the applicant was also advised
that if his motion was refused, he had to be ready to proceed with the hearing
of the application. So the November 30th hearing proceeded as
planned, at least for the first few minutes.
[12]
Indeed,
the applicant’s motion for an order granting her adjournment was accepted for
filing and the parties argued on its merits. After a brief recess, the Court
dismissed the motion and invited counsel to proceed with the application.
[13]
At that
moment, counsel asked for permission to file a document which was, in fact, an amended
memorandum of fact and law. The respondents strongly objected. Permission was
denied.
[14]
After a further
recess, Mr. Boucher sought permission to cease representing the applicant. She
did not object. Mr. Boucher’s verbal request was granted. As a result, the
applicant was left on her own to present her case. It was then her turn to ask
for an adjournment in order, she said, to mandate a new representative. She was
not willing to proceed on her own. That request was also denied.
[15]
Faced with
this situation and concerned with the fairness of the whole process, the Court
indicated that it would dispose of the application on the basis of the existing
record without an oral hearing.
The substantive issues
[16]
This being
said, I move on to the within application mindful that the standard of review
applicable to the Board’s decision about a union’s duty of fair representation
is reasonableness (Grain Services Union (ILWU-Canada) v. Friesen, 2010
FCA 339 at paragraph 31; McAuley v. Chalk River Technicians and
Technologists Union, 2011 FCA 156 at paragraph 13).
Analysis
[17]
Before the
Board, the applicant essentially claimed that her Union did not thoroughly examine her
situation, did not file a grievance when asked to, and kept her uninformed
about the progress of her case (Board’s reasons at pages 10-11). She also
alleged the “illegal manoeuvres by the employer and the Union” in order to
build a case against her (ibidem at page 12).
[18]
Although “touched
by the [applicant’s] case”, the Board was “unable to conclude that the Union breached its duty of fair
representation” (ibidem at page 19). In its view, the applicant had
failed to “present sufficient facts to establish that it is more likely than
not that the Union contravened its obligations under the Code” (ibidem).
[19]
In her amended
notice of application, the applicant challenges the Board’s decision letter on
the grounds that the Board was biased, arbitrary, and lacked impartiality. She
also claims that the Board, through its “staff … has demonstrated a
partisanship with her Union and has on several occasions…
[exceeded and surpassed] its mandate and authority in the applications of
procedures and its decision-making abilities” (amended notice of application, June
25, 2009).
[20]
These
grounds of complaint, if successful, would require that the matter be sent back
for redetermination by a differently constituted Board.
[21]
However,
having carefully examined the record, I agree with counsel for the Union that
nothing in it, directly or indirectly, supports the proposition that an
informed person, viewing the matter realistically and practically, would find
that the Board ruled on the applicant’s complaint unfairly or without due
impartiality (Union’s memorandum of fact and law at paragraph 53; see also Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)
[1992] 1 S.C.R. 623 at page 636.
[22]
This
should end the matter as procedural fairness was the sole element raised in the
amended notice of application.
[23]
But
through her affidavit material and memorandum of fact and law, the applicant
added several grounds of complaint against the Board’s decision. Although it appears
that, at times, she re-argues the merits of her grievance against her employer
and Union, she also takes issue with some of the Board’s findings and its
failure to rule favourably on her complaint.
[24]
More
specifically, the applicant takes issue with (a) the timeliness of the
grievance which lead her to seek her own counsel (applicant’s memorandum of
fact and law at paragraph 38); (b) the Union’s lack of communication with her (ibidem
at paragraphs 38 and 51); and (c) the Board’s failure to consider her right to
fair representation at arbitration (ibidem at paragraphs 60-62).
[25]
It appears
clearly from a careful reading of the decision that the Board had these issues
in mind when considering the complaint. The Board wrote:
According to the documents on
file, the union informed the complainant on a number of occasions that, in
order for it to continue with her case, she had to provide the medical
information required by the employer. The complainant did not respond to the
employer’s requests. The union also asked the complainant whether she wanted to
be represented by the union or by her own counsel, and she opted to be
represented by counsel of her choice. The evidence effectively shows that the
complainant was represented by counsel of her choice concerning her return to
work.
The evidence also demonstrates
that, in a letter dated January 31, 2007, counsel for the complainant asked the
union to arrange a meeting to deal with the complainant’s various files – a
meeting that did take place.
The union subsequently filed a
grievance contesting the employer’s refusal to allow the complainant to return
to work on April 24, 2006, although the union knew that the time limit for
filing such a grievance had expired. According to the evidence on file, the
union had obtained from the employer that it would disregard the time limit
provided in the collective agreement, and allowed the union to refer the
grievance to Arbitrator Martin Teplitsky for determination. The union informed
the complainant that the arbitration hearing was scheduled for September, and
it was in fact held that month. The arbitral award was rendered on September
25, 2007, dismissing the complainant’s grievance.
It is useful to note that,
since this complaint was filed before the arbitral award was rendered, it does
not concern the union’s representation at arbitration (Board’s decision at page
20).
[26]
Having
said this, the Board found that the complainant had not provided enough
material facts for it to find that the Union was hostile towards her. The Board
rather noted that the Union took the necessary steps to enforce the
complainant’s rights, although it had advised her that it would be difficult
for it to intervene since she had chosen to be represented by her own counsel
rather than by the Union and refused to provide the requested medical
information.
[27]
Having
considered the record as a whole, I am of the view that the Board’s decision is
reasonable, one that “falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 47).
[28]
Indeed, in
spite of the Union’s delay in pursuing the grievance, it successfully
negotiated the issue of time limits with the employer and brought the grievance
to arbitration. Poor communication with the grievor is not, in itself, a breach
of section 37. It constitutes lack of fair representation only if it prejudices
the position of the grievor. There is no evidence to that effect. To the
contrary, the grievance was successfully filed and adjudicated upon.
[29]
Finally,
on the issue of fair representation at arbitration, I note that the grievance
was heard on September 24, 2007, that is after the section 37 complaint was
filed on September 7, 2007. Therefore this issue was not in front of the
Board.
[30]
Therefore,
I would dismiss this application with costs.
"Johanne
Trudel"
“I
agree
Marc Noël J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
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