Date: 20090331
Docket: A-502-07
Citation: 2009 FCA 100
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
BENOÎT NADEAU
Applicant
and
UNITED STEELWORKERS OF AMERICA (F.T.Q.) and
GARDA SECURITY GROUP INC.
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The
applicant is objecting to a decision of the Canada Industrial Relations Board (Board).
First, he alleges that the Board failed to hold an oral hearing even though one
had been requested and even though, in his view, one was warranted.
[2]
Second, he
submits that the Board made a serious and patently unreasonable error in
finding that the union had not breached section 37 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (Code) in its handling of the grievance filed by the
applicant. Section 37 addresses a trade union’s duty to adequately and
fairly represent the employees in the bargaining unit.
[3]
Section
16.1 of the Code gives the Board the power to decide any matter before it
without holding an oral hearing, even when one has been requested: see Nav
Canada v. International Brotherhood of Electrical Workers, Local 2228, 2001
FCA 30, at paragraphs 10 and 11.
[4]
Counsel
for the applicant, who was not his counsel before the Board, recognizes that
the Board enjoys discretion in that regard; however, relying on the decision of
our colleague Justice Décary in Raymond v. Canadian Union of Postal
Workers and Canada Post Corporation, 2003 FCA 418, he submits that, in
exceptional circumstances, it is possible to review the Board’s decision to
proceed solely on the basis of the evidence in the record, without holding an
oral hearing. He referred the Court to paragraph 4 of that decision, which
reads as follows:
[4] Section 16.1 of
the Code provides that the Board may decide any matter before it without
holding a an oral hearing. This section was introduced by Chapter 26 of the
Statutes of Canada, 1998, which repealed the former subsection 98(2) that
allowed for circumstances in which the Board could refuse to hold a hearing on
a complaint based on section 37. Therefore, the Board now has greater discretion
in this respect and the Court must henceforth be more respectful of the Board’s
decisions about holding hearings, which was not the case prior to the statutory
amendment of 1998. This is a matter of internal policy that is beyond the scope
of judicial review barring exceptional circumstances.
[Emphasis
added]
[5]
Counsel
for the applicant submits that, in this case, the exceptional circumstances lie
in an issue of the credibility of a witness, specifically, the applicant’s
mother, who denies having received a telephone call from her son’s employer
informing her that he had dismissed her son, as claimed by the employer.
[6]
With
respect, I do not agree that, in the context of a section 37 complaint, credibility
issues generally constitute exceptional circumstances requiring the Board to hold
an oral hearing and that the failure to do so may be used as a basis for a valid
application for judicial review. Credibility issues almost inevitably arise in antagonistic
employer‑employee relations, such that section 16.1 would then be rendered
completely meaningless and deprived of Parliament’s intended effect.
[7]
It is
important to bear in mind that the issue under section 37 of the Code is
not the merits of the complainant’s grievance but rather the union’s decision‑making
process. The Board “examines the union’s conduct as to how the union managed
the employee’s grievance”: see Virginia McRaeJackson et al., [2004] CIRB
no. 290, at paragraphs 10 to 12.
[8]
Like the
Board, the union is faced with the employer’s and employee’s different and even
contradictory versions of the events at issue. In exercising its discretion,
the union must, among other things, analyze the evidence and weigh the
probative value in order to determine whether it should pursue the grievance initiated
by the complainant and represent the complainant before the Board. It must
exercise its discretion “in good faith, objectively and honestly, after a
thorough study of the grievance and the case, taking into account the
significance of the grievance and of its consequences for the employee on the
one hand and the legitimate interests of the union on the other”: see Canadian
Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, at page 527.
[9]
In the
case before this Court, the union sought a legal opinion from experienced
counsel regarding the rights of the seventeen (17) probationary employees, including
the applicant, and the employer’s right to terminate their contract of
employment: see the record of the respondent United Steelworkers of America, at
pages 133 to 153.
[10]
Each of
the seventeen (17) files was also specifically reviewed by that counsel. He
focussed on the applicant’s employee status and the employer’s allegations
against him in relation to his probationary period: ibidem, at pages 154
to 162.
[11]
The counsel
also referred to the applicant’s mother’s version, which was inconsistent with
that of the employer, and stated that she would need to testify before the arbitrator
if the grievance were advanced on its merits: ibidem, at page 154. The arbitrator,
according to the counsel, would then need to assess the witnesses’ credibility:
ibidem, at pages 155 and 156.
[12]
It was
brought to the Board’s attention that the applicant’s mother had filed an
affidavit contradicting the employer’s version claiming that she had been
informed over the telephone of her son’s dismissal. Counsel for the applicant
had the opportunity to provide the Board with detailed comments on the
applicant’s employment status, the union’s conduct in managing the grievance,
the date of the applicant’s dismissal, the difference of opinion expressed by
the applicant’s mother, the acts of misconduct alleged by the employer and the
legal opinion of the counsel retained by the union: ibidem, at pages 260
to 300, and more specifically at pages 270, 272, 280, 296 and 297 as
regards the credibility issue raised by the divergent affidavit of the
applicant’s mother.
[13]
Lastly,
counsel for the applicant also provided the Board with comments on the fact‑finding
report prepared by a Board representative for the Board: ibidem, at pages
322 to 326. At page 326, he writes regarding the version of the applicant’s
mother:
[TRANSLATION]
The complainant also
recalls that, throughout the proceedings before the Board, he demonstrated that
the union never bothered to speak with the complainant’s mother to obtain her
version of the circumstances surrounding the complainant’s dismissal and assess
her credibility for a potential arbitration. That clearly shows that the union
failed to conduct a serious investigation into the complainant’s dismissal and
that it preferred to rely blindly on the employer’s position without making
verifications. The report should mention those allegations in the complainant’s
reply.
[14]
At page 2 of
its reasons for decision, the Board stated that “the documents on file and the
submissions of the parties [were] sufficient for it to decide this matter
without holding an oral hearing”: see the respondent’s record, at page 37. Having
reviewed the extensive evidence in the record and the parties’ detailed
submissions, I cannot say that the Board’s decision not to hold an oral hearing
to determine the merits of the complaint under section 37 of the Code was
wrong or unreasonable.
[15]
As for the
Board’s finding that the union was not negligent in handling the complainant’s
grievance and fulfilled its duties under section 37 of the Code, it is
wholly supported by the evidence and the Board’s analysis.
[16]
For these
reasons, I would dismiss the appeal with costs to the respondent Garda Security
Group Inc.
“Gilles Létourneau”
“I agree
M. Nadon, J.A.”
“I agree
J.D.
Denis Pelletier J.A.”
Certified
true translation
Tu-Quynh
Trinh
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