Date: 20090401
Docket: A-349-08
Citation: 2009 FCA 103
CORAM: LÉTOURNEAU
J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
FRANÇOIS
BLANCHET
Applicant
and
INTERNATIONAL
ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
LOCAL
712
Respondent
and
L-3 COMMUNICATIONS MAS (CANADA) INC.
Third Party
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Introduction
[1]
The
applicant is seeking by way of judicial review to set aside a decision of the Canada Industrial Relations Board (Board)
dated May 29, 2008.
[2]
Under the
terms of that decision rendered without an oral hearing, the Board determined
that the applicant had not succeeded in establishing a prima facie case of
his complaint against his union. The applicant accused his union of breaching
its duty of fair and equitable representation under section 37 of the Canada
Labour Code, R.S.C. 1985, c. L-2 (Code).
[3]
To determine
whether there was a prima facie case of a violation of section 37 of
the Code by the union, the Board asked itself the following question:
[I]f the
Board deemed all of Mr. Blanchet’s allegations to be true, could it find that
the IAM (International Association of Machinists and Aerospace Workers, Local 712)
violated the Code?
[4]
After
reviewing the facts and the evidence submitted by the applicant and assuming the
applicant’s allegations to be true, the Board was of the opinion that it could
not find that the union had violated section 37.
[5]
The
applicant alleges that the Board failed to hold an oral hearing during which
credibility issues regarding his version of events and that of the employer
could have been argued. He also alleges that it misunderstood facts that were
external to the complaint including, but not limited to, the fact that the
Board was of the view that the counsel consulted by the union was an
independent counsel.
Applicable standard of review
[6]
To succeed
in his application for judicial review, the applicant must establish that the
Board’s decision is unreasonable: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 45;
Société Télé-Mobile v. Telecommunications Workers Union, [2004] F.C.J. No. 2123,
at paragraph 47.
[7]
This is a
very strict test for intervention, which, in my opinion, the applicant failed
to meet in this case for the following reasons.
Analysis of the Board’s decision and the
applicant’s submissions
[8]
It is not
necessary to address each of the submissions in the applicant’s written
memorandum. I will focus on the two previously mentioned. I will also deal with
issues raised at the hearing.
[9]
The Board
was not required to hold an oral hearing, even though one had been requested: Nav
Canada v. International Brotherhood of Electrical Workers, Local 2228, 2001
FCA 30, at paragraphs 10 and 11; Raymond v. Canadian Union of Postal
Workers and Canada Post Corporation, 2003 FCA 418. In this case, the
credibility issues raised by the applicant do not constitute exceptional circumstances
that warrant granting judicial review against the Board for its refusal to hold
an oral hearing. At paragraphs 6 and 7 of Nadeau v. United Steelworkers of
America (FTQ) and Garda Security Group Inc., 2009 FCA 100, the Court wrote:
[translation]
[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.
[10]
The
applicant insists that the Board was mistaken when it stated that the counsel
from whom the union had sought a legal opinion was an independent counsel.
[11]
With
respect, that submission of the applicant is without merit. The union did not use
in‑house legal counsel. It retained the services of an outside law firm.
It cannot be assumed that lawyers bound by a strict code of professional
conduct lose their independence because they are remunerated for their legal
services by those receiving the services.
[12]
The
applicant’s other submission is also unfounded. He argued that the independent
counsel’s legal opinion was wrong in concluding that the agreement signed by
the applicant for his reinstatement was a “last chance” agreement and that it could
be set up against any subsequent dismissal.
[13]
In
response to questions from panel members at the hearing, the applicant’s
experienced counsel acknowledged that the union could err in analyzing the
situation without this necessarily resulting in arbitrary or discriminatory
practice, bad faith or gross negligence on the part of the union: see also Dutchak
v. United Transportation Union, 2005 FCA 328, at paragraph 15.
[14]
However,
he referred the Court to the following excerpt from the applicant’s complaint,
reproduced at page 24 of the applicant’s record:
[translation]
The association’s
decision to not refer my grievance was arbitrary since it was based on a legal
opinion that was patently wrong and unreasonable. In fact, counsel
for the association, Michel Cohen, refers to Délisle v. Descoteaux, 1999
CanLII 13780 (QC C.A.) on which he bases his opinion and incorrectly states
that the adjudicator is bound by “last chance agreements”. On the contrary, Délisle
v. Descoteaux concludes that adjudicators are not bound by last chance
agreements and that they retain jurisdiction. Moreover, the document signed
November 10, 2006, was not a last chance agreement, and all prior
disciplinary action had been dealt with by my four (4)‑week unpaid suspension.
Lastly, the dismissal itself was based on a trivial incident, which I myself brought
to the supervisor’s attention.
[Emphasis
added]
[15]
He then
contrasted it with this finding made by the Board at page 5 of its reasons for
decision:
In this case, based
solely on the evidence submitted by Mr. Blanchet, and assuming that all his
allegations are true, the Board has determined that Mr. Blanchet did not
succeed in establishing a prima facie case that the IAM violated section
37 of the Code. Mr. Blanchet does not agree with the IAM’s final decision
to not refer his grievance to arbitration. However, all of the facts set out in
the complaint and the documents submitted in support thereof show that the IAM
did not act in an arbitrary manner when it considered whether to take the
grievance to arbitration. In fact, the IAM fulfilled its duty under the Code.
[Emphasis
added]
[16]
In assuming
the applicant’s allegations to be true as it did, how, he asks, could the Board
find that there had been no violation of section 37 of the Code, when the
applicant alleges that the union’s decision to not refer his grievance [translation] “was arbitrary
since it was based on a legal opinion that was patently wrong and unreasonable”?
[17]
As a
general rule, when a court presumes the allegations to be true, they are allegations
of fact. That rule does not apply in findings of law: see Lawrence v. The Queen, [1978] 2 F.C. 782 (T.D.). It
is for the court, not the parties, to determine questions of law: ibidem.
[18]
It is true
that, in the passage quoted, the Board did not specify that it was referring to
the applicant’s allegations of fact. However, the reference to the applicant’s
allegations cannot be anything other than a reference to allegations of fact. Otherwise,
a complainant would need only to state as a conclusion that his or her union’s
decision was arbitrary or discriminatory for the Board to be forced to find
that there had been a violation, or at least a prima facie violation, of
section 37 of the Code and rule on the merits of the complaint. Thus, the
complaint screening process would become a thing of the past.
[19]
With
respect, the excerpt of the complaint to which the applicant refers contains a
finding of law that the union’s decision was arbitrary within the meaning of
section 37 of the Code and that the legal opinion on which it was based was
wrong in law and unreasonable. The explanation that follows in the excerpt serves
only to demonstrate the merits of the finding of law made by the applicant.
[20]
When those
findings of law are disregarded, based solely on the allegations of fact in the
applicant’s complaint, it is not possible to conclude that the Board’s decision
is unreasonable.
Conclusion
[21]
For these
reasons, I would dismiss the application for judicial review with costs to the respondent.
“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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